Decided on October 30,1950

Madan Gopal And Ors. Appellant
Nihal Chand And Ors. Respondents


Chopra, J. - (1.) THIS is Madan Gopal plaintiff's appeal against the judgment of the District Judge, Patiala, dismissing his suit for partition and separate possession of his share in two houses situate in Patiala. The houses are alleged to be the property of the joint family consisting of the five families branching off from his father Tara Chand; house No. 1 being ancestral and No. 2 purchased and built out of joint funds. In Clause 10 of the plaint, it was mentioned that the Plaintiff would institute a separate suit with regard to the remaining moveable and immovable property belonging to the joint family. On an objection that the suit, which according to the plaintiff's own showing was for a partial partition, was not competent, it was dismissed for that reason alone.
(2.) A preliminary objection, is taken by Mr. Atma Ram that necessary parties to the appeal have not been impleaded and in their absence the appeal could not proceed. He further stressed that all the branches of the family were not represented even, in the suit and that the same was liable to be dismissed on that ground as well. In order to understand the objection and the arguments adduced by the counsel of the parties the facts of the case have to be given with some detail. The following pedigree gives the relationship of the persons interested in the suit. TARA CHAND | - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - | | | | | Devi Lachhman Ram Madan R.B. Chand Dass Partap Gopal Nihal | Plaintiff. | Plaintiff. Chand Chiman - - - - - - - - - - - - - - - - Defdt. Lal | | No. 1 Plaintiff. Bikrmajit Atma Ram Defdt No. 2. Pltf. Originally the suit was brought on behalf of Madan Gopal, Atma Bam, Lachhman Das and Chiman Lal, and the plaint was signed by Madan Gopal on his own behalf and as the attorney of Ors. . R.B. Nihal Chand and Bikramajit were impleaded as Defendants. Only the former resisted the suit and ex parte proceedings were taken against the latter. On an application by Chiman Lal that he did not want to be kept as a Plaintiff his name was expunged by an order of the Court dated 11 -12 -2004. Regarding Lachhman Das an objection was taken that he was dead and the period for impleading his legal representatives had already expired. His name also was expunged as requested by the Appellant. It is significant that the Appellant thereafter made no effort to bring on record the legal representatives of Lachman Das, nor was Chiman Lal impleaded as a Defendant. It is common ground that Lachhman Das has left two eons. Now in appeal Madan Gopal is the only Appellant with R.B. Nihal Chand, the solitary Respondent. Bikramajit, who was cited as a Respondent, was subsequently given up and his name was struck off on 14 -7 -1950, at the request of the Appellant. The other three branches of the family are not represented at all and are not parties to the appeal. Mr. Atma Ram contends that they were all necessary parties and the appeal could not proceed without them. Particularly with respect to Bikramajit it is stressed that he was a Defendant in the suit and had not agreed to the partition or admitted the plaintiff's claim. The mere fact that he had been proceeded against ex parte did not mean that he was not a necessary party to the appeal.
(3.) MR . Kishori Lal takes his stand on Order 41, Rule 4, Code of Civil Procedure and argues that Madan Gopal alone could appeal on behalf of the other co -plaintiffs without joining them as Appellants or oven parties to the appeal. The rule authorises one of the plaintiffs to an action in which the other co -plaintiffs are also interested, to appeal for the benefit of the latter. I fail to understand how this rule is helpful to him or applies to the case. The Appellant is not seeking any relief for the non -appealing plaintiffs nor has he appealed for their benefit. Every coparcener in a joint Hindu family has an independent and individual right to claim partition. It is a right that could be claimed jointly or severally by the co -sharers; Madan Gopal could, therefore, file an appeal on his own behalf without claiming any benefit for the non -appealing plaintiffs. Under the circumstances, Order 41, Rule 4, Code of Civil Procedure, need not be resorted to and, consequently the question whether a non -appealing Plaintiff should be joined as Respondent for granting relief to him as well, is not directly involved ID this appeal. On this point there is a conflict of judicial opinion in different High Courts in India. The High Court of Lahore has, however, favoured the view that a relief cannot be granted to a non -appealing Plaintiff or Defendant who is not before the Court and has not been impleaded as a party. The real question that is involved in this case is who are necessary parties to the appeal and what is the effect of their non -joinder. As already observed Bikrmajit was impleaded as a Defendant and in the plaint it was stated that he had no objection to the partition. But he never expressed his willingness to the partition, nor did he even admit the plaintiff's claim. He might have felt interested in opposing the appeal if he had been now before us. Every person who was a party to the suit and whose interests are likely to be pre -judiced or affected by the determination of the appeal is a necessary party for its decision and any modification made in the decree behind his back would not be justified. Now at least with respect to Bikrmajit it cannot be said that be is not a necessary party because the decision of the appeal must necessarily affect his interest, and there is no justification for varying the decree in his absence. The interests of every member of a joint family are necessarily affected by a partition of its property. Once Bikrmajit has got a decree in his favour, it should not be varied without impleading him as a Respondent and giving him the right and opportunity to support it. The main question to be decided in the appeal is whether the suit relates to a partition of a part of the joint property and if so, whether it can be allowed to proceed. Madan Gopal now wants to go back from the facts stated in Clause 10 of the plaint and asserts that there is no other immovable joint property. Bikrmajit might succeed in showing that the Appellant or any other member of the family is in possession of property that ought to have been included in the suit. It cannot, there -fore, be said that he is not interested in or affected by the decision in appeal or that the question is one which relates solely to the parties before us. He as well as the other members of the family are equally interested in the points necessary for the decision of the appeal and it will equally affect the interest of them all. It is, therefore, not a question that can only be decided amongst the parties before us without affecting the rights and interests of Ors. who have not been impleaded. They are as good parties to the appeal as they were to the suit and the appeal cannot proceed without impleading Bikrmajit and Ors. as parties thereto. The suit is not for a partition simply between the parties to the appeal, on the other hand what the Plaintiff wants is a petition amongst all the members of the family. There will be yet Anr. difficulty in the appeal being decided without impleading Bikrmajit as a Respondent. Decision of the appeal as it at present stands, might result in two conflicting and contradictory decrees. Bikrmajit has already got a decree in his favour dismissing plaintiff's suit for partition of the two houses. A decree in favour of the Plaintiff giving him the right to get them petitioned would be in direct conflict with this decree and would be inexecutable because no partition would be possible or practicable without affecting the rights already accrued to Bikrmajit.;

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