V.K.JHANJI, J. - (1.) THIS revision petition is directed against the order of the trial Court vide which, on the application filed under Order 1 Rule 10 of the Code of Civil Procedure, Shanti Devi widow of Kulwant Rai and Ashok Kumar son of Kulwant Rai were ordered to the impleaded as defendants to the suit filed by the State Bank of India.
(2.) IN brief, the facts are that the State Bank of India (in short), the Bank) filed a civil suit for recovery of Rs. 17,40,034. 30 Paise against M/s. World Trade Enterprises, a partnership firm consisting of Som Dutt Aggarwal son of Kulwant Rai and Om Parkash son of Babu Ram. , In para 6 of the plain, the Bank averred that for securing the repayment of loans availed of by defendants No. 2 and 3 as partners of defendant No. 1, defendant No. 2 namely Som Dutt Aggarwal created an equitable mortgage by deposit of Will dated 6. 5. 1980 and registered sale-deed dated 21. 2. 1969 with the Bank as collateral security. In this very paragraph, the particulars of mortgage were also given, according to which, mortgage was created on 16. 12. 1987. During the pendency of the suit, Shanti Devi and Ashbk Kumar filed an application under Order 1 Rule 10 of the Code of Civil Procedure, for becoming defendants to the suit on the ground that the property which was equitably mortgaged with the Bank, belonged to Kulwant Rai and on his death, all his heirs have become owners to the extent of l/8th share each. Thus, they claimed that they jointly have l/4th share, and the Will, on the basis of which property was equitably mortgaged, is not a legal document, but a forged and fictitious document. The trial Court found that the applicants being natural heirs of Kulwant Rai, deceased, in respect of whose property equitable mortgage was created, are very much interested in the decision of the case. It also found that non-impleadment of applicants would result in multiplicity of litigation. The order impleading them as defendants is being impugned in the present revision petition. Mr. R. K. Chhibbar, Sr. Advocate, counsel for the Bank, contended that. the applicants are not necessary parties. According to him; initially, there were three partners in the firm, namely, Om Parkash, Som Dutt Aggarwal and Kulwant Rai. Further according to him, it was Kulwant Rai who during his life-time had equitably mortgaged the property, and after his death, the firm had continued to run its business. He also made reference to letter dated 9. 10. 1981 alleged to have been written by Shanti Devi through her counsel, M. L. Trighatia, Advocate, addressed to the Bank, wherein she admitted that her husband had created an equitable mortgage of the house. A reference was also made to Will dated 6. 5. 1980 vide which the property was. bequeathed in favour of Som Dutt Aggarwal. On the strength of these documents, Mr. Chhibbar contended that these two persons had neither executed the mortgage deed nor received money and, thus, are not necessary parties, and only those persons who are interested in the equity of redemption are necessary parties to the suit for sale. He further contended that if they are made parties, it would complicate the issues involved in the suit. In support of this contention, he relied upon a judgment in Mon Mohini Ghose v. Parvati Nath Ghose, Indian Law Reports, (Vol. III), 32-Caluctta, 74
(3.) HAVING heard the counsel at some length, I am of the view that there is a no merit in the revision petition. The contention of Mr. Chhibbar that initially, Kulwant Rai equitably mortgaged the property or Shanti Devi admitted the deposit of sale-deed by her husband, do not find mention in the pleadings. What is contained in the pleadings is that the property was equitably mortgaged by Som Dutt Aggarwal in the year 1987 on the basis of Will alleged to have been executed in his favour by Kulwant Rai. In the presence of these pleadings, the trial Court had no alternative but to implead the applicants as necessary parties be cause applicants are not admitting the Will on the basis of which property was mortgaged. The effect of admission of Shanti Devi through her counsel that the property was mortgaged by her husband or the property had been mortgaged during the life-time of Kulwant Rai, cannot be gone into at this stage because these do not form part of the pleadings. It shall always be open to the Bank to make an appropriate application for. amendment of the plaint, to bring pleadings in consonance with the documents referred to by Mr. Chhibbar.;