DURGA PRASAD Vs. BHAGWANDAS & 17 ORS.

JUDGEMENT

(1.) THIS petition under Article 227 of the Constitution by one of the defendant in suit for partition questions the correctness of the view of partial abatement of the suit due to death of one Raja Beti, a co -defendant in the suit, taken by the Courts below and prays for dismissal of entire suit as having abated.

(2.) ONE Bhajjumal had 3 sons, Kalicharan, Ramchandra and Chironjilal. It appears that after the death of Bhajjumal and Chironjilal, a suit for partition was filed by Ramchandra, claiming the suit properties to be those of a joint Hindu family. Kalicharan and the widow and 5 daughters of Chironjilal who had died after 1956, were joined as defendants. Raja Beti, one of the daughters of Chironjilal and a defendant in the suit died on 17 -3 -1977 during pendency of suit, but her legal representatives were not brought on record. The plaintiff Ramchandra and the defendant No. 1 Kalicharan also died during suit and their legal representatives were brought on record. The petitioner is one of the legal representatives of the deceased defendant No. 1 Kalicharan, whereas the respondents 1 to 5 are the legal representatives of the deceased plaintiff Ramchandra. On 5 -3 -1986 the petitioner filed an application (Annexure P -4) for dismissal of the suit on the ground of abatement due to the death of Raja Beti. By his impugned order dated 22 -10 -1986 (Annexure P -1) the learned Civil Judge was pleased to hold that the suit abated only to the extent of the share of Raja Beti in the suit properties. In revision, the order was affirmed by the second Additional Judge to the Court of District Judge, Gwalior by his impugned order dated 22 -2 -1990 (Annexure P -2). Being aggrieved the petitioner has preferred this petition under Article 227 of the Constitution for the said reliefs.

(3.) HAVING heard the learned counsel for the parties, we are of the view that this petition has no substance and deserves to be dismissed. We proceed on the premises that rhe principle of abatement is also applicable to a suit for partition. Accordingly the various cases cited by the learned counsel for the petitioner on this point need no consideration The argument that Raja Beti was a necessary party to the suit was sought to be supported by referring to Article 333 (2) (a) of the Hindu Law by Mulla and by relying on a decision of this Court in Smt. Gomati Devi v. Ram Prasad , AIR 1938 MP 6. Article 333 (2) (a) of Hindu Law speaks of parties to a suit for partition and says that a plaintiff in such suit should implead as defendants : (i) the heads of all branches, (ii) females who are entitled to a share on partition and those mentioned at S. Nos. (iii) and (iv), who are not relevant for the purpose of deciding the present controversy. There is no dispute that the heads of all branches and females who are entitled to a share on partition are necessary parties to a suit for partition. The question is, whether Raja Beti was a female of the category, who was entitled to a share on partition ? In Articles 306 to 3(sic)8 of Hindu Law, the persons entitled to a share on partition are mentioned. Article 315 provides that if a partition takes place between her husband and the sons of her husband, the wife is entitled to a share. Articles 315 -A, 316 and 317 speak of shares of a widow, widow -mother and grand -mother on partition. Raja Beti did 031 come in any of the categories of females mentioned in Articles 315 to 317 of Mulla's Hindu Law and was therefore not a necessary party to the suit. But the argument was that Chironjilal had died after the enforcement of the Hindu Succession Act, 1956 and therefore, by virtue of Sections 6 and 14 thereof his widow and daughters had become absolute owners of the interest of Chironjilal in the joint family property. Accordingly Raja Beti, one of the daughters of Chironjilal was necessary party to the suit. The argument deserves to be rejected. If it were a suit for partition amongst the heirs of Chironjilal, Raja Beti would have been a necessary party to the suit, but the present suit was between the brothers of Chironjilal, where the heirs of Chironjilal were joined as defendants, so as to represent his share in the family property. Proviso to Section 6 of the Act only bars devolution by survivorship, where a male Hindu dies Using him surviving a female or a male relative of the category mentioned therein. Explanation 1 to the Section speaks of notional partition of the property on the date of death of a coparcener. In such notional partition, the share of the deceased coparcener is determined and not that of any of his heirs mentioned in the proviso is determined. We are, therefore, of the view that Article 333 (2) (a) of Mulla's Hindu Law does not support the petitioner's contention that Raja Beti was a necessary party to the suit. In Gomati Devi v. Ram Prasad (Supra), the deceased father of Gomati Devi was admittedly a coparcener, but he was not represented in a suit for partition between coparceners. Gomati Devi claimed the share of her father and accordingly applied for being joined as a defendant in the suit. In the context of these facts, she was held to be a necessary party to the suit. In the present suit, there are other heirs of Chironjilal on record to represent the estate of interest of Chironjilal in the family property and their interest was not adverse to that of Raja Beti in the suit properties. Raja Beti could not, therefore, be said to be necessary party to the suit.