ASWATHAMMA Vs. H M VIJAYARAGHAVA

JUDGEMENT

(1.) THIS revision is under Section 115 of the Code of Civil Procedure, from the order dated 14-12-1993, passed by Munsiff, T. Narasipura on I. A. No. 4 moved in F. D. P. 18/90, in Original Suit No. 22/77, allowing the impleadment of the respondent as defendant No. 4.

(2.) ). The facts of the case in nut-shell are that the suit for partition had been filed by the plaintiff Smt. Aswathamma, impleading Kotamma, Sampathamma and Vijayalakshmi as defendants, claiming 1/4th share each against defendants 1 to 3 in the suit. It may be mentioned as observed by the Trial Court, second defendant in her written statement had taken the plea that the deceased first defendant had taken her son in adoption and during the trial registered Will was executed in favour of the present applicant whereby deceased defendant No. 1 had bequeathed the suit property in favour of the son of defendant No. 2, that is the present appellant, but the plaintiff did not implead the applicant in the suit. In spite of issue No. 2 raised in the suit that the property belonged to the applicant-H. N. Vijaya Raghava, present applicant was not impleaded and in those proceedings preliminary decree was got passed for partition without the present applicant being impleaded as a party, whereunder the share of the plaintiff was decreed 1/4th share against defendants 1, 2 and 3. It appears that at one stage the applicant had moved an application for stay of the proceedings in the suit under Section 151 of the CPC, and when the proceedings were at the final decree stage, the Civil Judge rejected the prayer and the applicant had filed the revision petition in No. CRP. 1315/93, which has been dismissed by order dated 7-9-1993, with the observation as under :-

(3.) NO doubt objections were filed by the opposite parties, denying the allegations that the applicant was adopted or that the Will was executed in his favour etc. , but those questions have to be decided later on. It had to be looked into whether in view of such allegations, in order, to the point in issue being decided finally, impleadment of present respondent that is the applicant who moved the impleadment was necessary or proper party or not. The Trial Court opined that the applicant who was not a party in the earlier proceedings, since he has set out his right independently both on the basis of adoption and the Will of the year 1976, he is a necessary and also a proper party to adjudicate upon and settle the points involved in the suit effectually and completely as well as to avoid multiplicity of proceedings. The Court said the Will prima facie may show the applicant was an interested party having a right to claim if the Will is proved. Looking to this situation, and these facts and considering the applicant to be necessary party for the purpose of the suit being finally determined as to interest of every party interested in the property in dispute and the prima facie claim of interest and position of the defendant-applicant, the trial Court, allowed impleadment of the applicant.