BASISTHA NARAYAN Vs. SANKAR DAYAL

JUDGEMENT

(1.) Mr. D. N. Varma for the respondents raises a preliminary objection to the maintainability of this appeal. He contends that the appellants were no parties to the partition suit nor to the final decree passed in that suit which is under appeal. No appeal against the decree is entertainable at their instance.

(2.) The facts are these. On 6-8-1926, two members of a joint Hindu family, Raghunandan Lal & his son Sankar, instituted a suit for partition of the joint family properties im-pleading five persons, other members of the family, as defts. A preliminary decree for partition was passed in 1929. There was an appeal against the preliminary decree to this Court. The decree was confirmed by this Court in 1932. It appears that during the pendency of the appeal one Lalmohar Lal came to be a purchaser of the interest of the plff. Raghunandan Lall to the extent of 4 annas in the joint family ptoperties, & he was substituted in the place of Raghunandan Lal. One Raghuraj Dubey was also substituted as a party to the suit as having purchased 4 annas interest of Kedar Lal, one of the defts, in the suit. In the year 1943 a pleader-commissioner was appointed to partition the properties & to carve out separate takha to Lalmohar Lal as representing the interest of Raghunandan, the plff. & Raghuraj Dubey as representing the interest of Kedar Lal, the deft. The pleader-commissioner made necessary allotments & submitted his report on 4-4-1944. It appears that before the Commissioner had made the allotments, three persons, who are the appellants before us, Basistha Lal, Banarsi Lal & Ramjanam Lal filed petitions before the Commissioner alleging that some of the properties which under the preliminary decree were to be partitioned had been purchased by them in execution of rent decrees against the joint family & were no longer divisible amongst the parties to the decree. On failing to get any relief from the commissioner, these persons filed petitions on 27-5-1944, before the Court, making the same allegations regarding purchase by them of some of the properties sought to be partitioned, & praying that those properties might be excluded from partition. The learned Subordinate Judge summarily rejected their applications as not being entertainable, & passed the final decree.

(3.) The appellants have filed this appeal against the final decree. They have also along with the memo, of appeal filed an application under Order 41 Rule 20 & Section 151, Civil P. C. praying that they may be added as parties & be permitted to prosecute the appeal filed by them against the respondents. Mr. Tarkeshwar Nath appearing for the appellants contends that it was competent to the purchasers of some of the properties involved in the partition suit, Under Section 146, Civil P. C., to prefer this appeal against the final decree, passed by the Subordinate Judge. Reliance is placed on a decision of the Madras H. C. in the case of 'Sitaramaswami v. Lakshmi Narasamma', 41 Mad 510, which certainly supports the contention. Section 146 of the Code provides :