DEVENDRA KUMAR Vs. MT. BATASIBAI

JUDGEMENT

(1.) VIVIAN Bose, A.J.C. 1. A mortgage was executed in favour of two persons, Lalchand and Gulabchand. Gulabchand died and one Fulchand claims to be his adopted son. Lalchand and Fulchand then brought the present suit on the mortgage. Lalchand died during the pendency of the suit and his legal representatives were duly brought on record in his place, but we are not concerned with that here. What does concern us is that one Batasi-bai, who is not a party to the suit, claims to be added as a party on the ground that she is the rightful heir to Gulabchand and that Fulchand is a usurper. She is a daughter of Gulabchand and denies Fulchand's adoption. The lower Court has granted her prayer and has added her as a defendant Under Order 1, Rule 10(2), Civil P.C. Fulchand and Lalchand's legal representatives are both aggrieved at this and have filed this application for revision. They claim that as plaintiff's they have the right to contest the litigation and that the -Courts have no power to force a fight upon them in which they have no desire to engage. I am of opinion the contention is well founded.

(2.) ORDER 1, Rule 10(2) gives the Court a right to add parties in two cases only. The first is when he ought to have been joined and has not been joined. In a suit upon a mortgage the plaintiff is not bound to join everybody who chooses to set up a: title to the property unless he chooses; If then he is given an option to join them or not and he chooses to exercise that option by ignoring them it is impossible to say he ought to have joined them. The clause can apply only when he was bound to join them and has not done so. The second case in which a party may be added Under Rule 10 is when his presence is necessary to enable the Court to make a complete adjudication upon the questions involved in the suit. A full and final adjudication is possible between the existing parties of all questions involved in the suit. Either Fulchand has a right to sue or he has not. It is not necessary to decide who else has the right if he has not, even if it be desirable. But desirability is not the point on which the power turns; it is necessity: Keshavram v. Ranchhod (1906) 30 Bom 153 and Sabdur Ali v. Sadaahiv Supdu 1919 Bom 135.

(3.) THE following cases have been cited by the learned advocate for the non-applicants: Dwarka Nath Sen v. Kessory Lai Goswami (1910) 6 IC 549. But in this case it was held that the new party "ought" to have been added. He was in actual possession of the property and claimed through the defendant in that suit by means of a retransfer. Mt. Batasibai does not claim through any of the parties here, nor do they claim through her. She is not in possession either. So that case does not apply here. Abdul Gafur v. Ali Mian 1925 Cal 26. is much more apposite to the present case. The suit was one for rent, and in it the addition of a party was refused on the ground that a rent suit cannot be converted into a complex title suit even though questions of title may arise incidentally. Maung Tin v. Maung Po Htoo 1927 Rang 192 was also quoted on behalf of the non-applicants. But that was an administration suit in which all claimants to the estate are obviously both proper and necessary parties. Mool Chand v. Bhoop Singh 1927 Oudh 484. was a case of transposing a defendant who was already a party to the suit to the position of a plaintiff. That is not the point, here. With respect to Vydianadayyan v. Sitaramayyan (1882) 5 Mad 52., that decision was not followed in the later Madras case, and with the utmost respect I dissent from the view taken there.