RAM PRASAD CHOUDHARY Vs. UNION OF INDIAFULIA

JUDGEMENT

(1.) This application has been filed by pro-forma defendants Nos. 3 to 5, and it is directed against an order passed by the learned trial Judge, refusing to transpose them to the category of plaintiffs. The facts are as follows:- One Mosst. Fulia has filed a title suit for recovering possession of certain properties of one Dukhit, together with mesne profits on the allegation that she is the daughter of Lachman, brother of Dukhit. The suit was filed against principal defendants Nos. 1 and 2, calling them strangers to the family of Dukhit and Lachman. Pro forma defendants Nos. 3 to 5 were described in the plaint as the plaintiff's sons. According to the contesting defendants, the plaintiff was not the daughter of Lachman. According to them, Lachman had a daughter named Budhia, who was dead. It was, howevar, admitted that defendants Nos. 3 to 5 were sons of Budhia. According to the contesting defendants, further, Khisi, father of Dukhit and Lachman had a brother named Muneshwar, who had a son named Bilat, father of defendant No. 1. Defendant No. 2 happens to be the son of defendant No. 1. The defendants further stated that Dukhit's widow named Marjharia had surrendered the properties in dispute to defendant No. 1, and therefore, the suit was bound to fail.

(2.) Upon the pleadings of the parties, issues were framed and oral and documentary evidence were adduced by the parties, one of the proforma defendants having been examined as a witness for the plaintiff. Argirments on behalf of the contesting defendants were advanced in full and thereafter an application was made under Order 1 Rule 10 of the Code of Civil Procedure by pro forma defendants Nos. 3 to 5 praying that they may be transposed to the category of plaintiffs. This application was apparently filed as a controversy arose during the course of the argument as to whether the Hindu Succession Act, 1956 (Act 30 of 1956) would apply to the facts of the case or whether the devolution was governed by the Hindu law existing prior to 1956, when the Hindu Succession Act had come into force. Of hearing the parties, the learned trial Judge has rejected the prayer for transposing defendants Nos. 3 to 5 to the category of plaintiffs and hence this application.

(3.) After stating the facts of the case in detail and the arguments advanced on the applicability of the Hindu Succession Act, 1956, the learned trial Judge has mentioned that transposition of defendants Nos. 3 to 5 to the category of plaintiffs will change the character of the suit and defendants Nos. 3 to 5 as plaintiffs will make out a completely new case for themselves. In view of these conclusions, the prayer of defendants No. 3 to 5 has failed.