CHAMELI DEVI Vs. MATAPRASAD PRABHUDAYAL

JUDGEMENT

(1.) THESE appeals arise out of a suit for partition of joint Hindu family property filed originally by Prabhudayal and others against Girwarlal, Payarelal and others, prabudayal having died is represented by respondents Nos. 1 to 12. The defendant pyarelal died on 3-6-1948 during the pendency of the suit and was substituted by his widow Mst. Draupadibai. Later on Draupadi-bai also died and she was substituted by Mst. Chamelibai d/o Girwarlal. Girwarlal also died on 11-6-1952 during the pendency of an appeal before the High Court. Draupadibai and kaushilyadevi were by the order dated 10-2-1953 of the High Court impleaded as legal representatives of Girwarlal. Girwarlal's widow Mst. Lado having died (sic)1953 Mst. Chamelibai, the appellant in Civil First Appeal No. 25 of 1960 before us, applied to the High Court for her name to be brought on record in place of Mst. Ladobai. This prayer was allowed by the High Court by its order dated 9-2-1953.

(2.) BY their application dated 9-3-1960 the plaintiffs applied to the trial Court for kaushalyadevi's name to be deleted from the list of defendants. By another application dated 1-10-1960 they made a similar prayer for removal of the name of Chamelibai from the list of defendants. Both of these applications were allowed by the trial Court by its order dated 12-10-1960. It appears that the plaintiffs had arrived at a compromise with the remaining defendants and that the same was put up before the Court on 20-10-1959. After the names of Kaushalyadevi and chamelibai had been removed from the list of defendants in the suit the compromise was recorded by the Court by its order dated 2-11-1960. Kaushalyadevi has filed Civil First Appeal No. 24 of 1960 against these two orders; whereas Chamelibai has filed Civil First Appeal No. 25 of 1960 against the same orders. This judgment shall govern both of these appeals.

(3.) TWO questions arise for consideration in these appeals. Firstly, it has to be decided whether the appeals are maintainable and secondly if they are held to be maintainable whether the plaintiffs had the right in law to withdraw the suit as against the present appellants. Both of these questions, however, involve a common point, namely whether the appellants in the present case were necessary parties to the suit for partition, or they were merely proper parties thereto. I shall, therefore, consider both of these questions together. On the first point it may be observed at the outset that an order under Order 1, rule 10 is not appealable under the Code of Civil Procedure. It was, however, argued that in a partition suit every party, whether arrayed on the side of the plaintiff or on the side of the defendant, is in position of a plaintiff in so far as every party whether plaintiff or defendant is entitled to ask the Court to allot a share of the joint property to him. In, such a case it was contended on the authority of Ramji Pandey v. Alafkhan, AIR 1925 Pat 121 that the order striking out of the names of one or more of the defendants would be appealable, inasmuch as its effect is to leave undecided the defendant's claim to a share in the partition.