B.D. Gupta, J. - (1.) THIS is an application in revision Under Section 115 Code of Civil Procedure hereinafter referred to as the Code, against an order passed by the 1st Addl. District Judge, Allahabad, on 25 -5 -1968, whereby he has accepted a prayer for bringing on record the legal representatives of a person arrayed as a Respondent in an appeal pending before him. After hearing learned Counsel for the parties at considerable length I am of the opinion that this revision must fail.
(2.) THE Plaintiff opposite party Jagdish Nath Sharma brought a suit in the court of the Civil Judge in 1954. The relief claimed was partition of a 1/6th share in certain property on the assertion that the property was ancestral and the Plaintiff, as a member of the family, was entitled to a 1/6th share therein. According to the pedigree set forward in the plaint there were three extent branches of the family, each branch being entitled to a 1/3rd share. Plaintiff's claim was that he and Defendant No. 12 were entitled to a 1/6th share each, that Defendants Nos. 5 to 10 were, between themselves entitled to a 1/3rd share, whereas the remaining 1/3rd share represented the interest of the third branch consisting of Defendants Nos. 1 to 4. One Smt. Kishen Devi, arrayed as Defendant No. 11, was the widow of a predeceased uncle of the Plaintiff, whereas the remaining Defendants were impleaded on the assertion that they were tenants on the property which was the subject -matter of partition. Plaintiff's case was that the property, which was the subject matter of the claim, was in possession of the Defendants first set consisting of Defendants Nos. 1 to 4 who alone contested the suit asserting that after the death of the common ancestor of the parties a separation between their sons had taken place. Various other pleas were put forward which need not be detailed herein. Some of the other Defendants, including Shiv Shanker Sharma arrayed as Defendant No. 5 in the plaint, put in a joint written statement whereby they substantially supported the Plaintiff's case. By judgment dated 24 -4 -1957 the suit was dismissed principally on the ground that it suffered from the defect of partial partition as the entire property had not been included in the claim with the further finding that in regard to certain items of the property included in the plaint the Plaintiff could not claim any share. An appeal was filed by the Plaintiff. During the pendency of the appeal the 5th Defendant Shiv Shanker Sharma, who was arrayed as the 5th Respondent in the memo of appeal, died on 15 -1 -1963. Thereafter on 16 -1 -1968, an application was made on behalf of the widow and two daughters of Shiv Shanker Sharma praying for substitution of their names in place of Shiv Shanker Sharma. This was followed, on 10 -2 -1968, by an application on behalf of the Plaintiff Appellant praying for the same relief. It may be added here that there is no controversy that Shiv Shanker Sharma left no male issue and that the only heirs he left consisted of the widow and the daughters who had made the application for being impleaded on 16 -1 -1968. The application was contested on behalf of Defendants Nos. 1 to 4. By order dated 25 -5 -1968, the learned Addl. District Judge granted the prayer contained in the two applications mentioned above. This revision has been filed against the aforesaid order on behalf of Defendants Nos. 1 to 4, arrayed in the memo of appeal as Respondents Nos. 1 to 4 and the principal contention raised on behalf of the Applicants is that by reason of failure on the part of the Plaintiff Appellant to make an application for impleading the heirs and legal representatives of the deceased Defendant No. 5 within time, abatement of the appeal as against the 5th Respondent had taken place bringing about the result that the whole appeal must be deemed to have abated. Reference has been made by learned Counsel to the provisions contained in Order 22 of the Code as also to certain decisions. Learned Counsel for the opposite parties has, on the other hand, contended that the order sought to be revised by this petition does not call for interference because, even though the said order may not be an order passed in proper exercise of the inherent powers possessed by a court it is, nevertheless, well supported by the provisions contained in Rule 10 of Order 1 of the Code. The order passed by the learned Addl. District Judge does not make it clear as to whether he intended by that order to allow the prayer as on behalf both of the Plaintiff Appellant and the widow and daughters. Learned, counsel for the opposite parties has, however, not supported the order on the footing that thereby the learned Judge accepted in the prayer in so far as it had been made on Plaintiff's behalf. His contention was that, assuming that the Plaintiff's application for impleading the heirs of Respondent No. 5 had been filed beyond time, there was nothing to prevent the heirs of that Respondent from applying to be impleaded as party to the appeal whilst it was still pending and further, that there was nothing to prevent the learned Judge from accepting such prayer in order to enable him to effectfully and fully adjudicate upon the controversy before him. The aforesaid contention is based principally on the ground that it was a suit for partition to which considerations applicable are substantially different from considerations that apply to suits of other nature.
(3.) IT is a well settled proposition of law that no decree for partition can be made in the absence of any co -sharer interested in the property and there being no controversy that the widow and the daughters of the 5th Defendant Shiv Shanker Sharma were the heirs and legal representatives of Shiv Shanker Sharma deceased, I have no doubt that the order passed by the learned Judge is perfectly correct and does not call for interference.;