PRAFULLA KUMAR MITRA Vs. DHIRENDRA LAL DUTT

JUDGEMENT

(1.) This rule is directed against an order of the Second Subordinate Judge at Alipore adding the petitioner as a party defendant to a partition suit brought by opposite party 1 against his brothers, opposite parties 2 and 3. The facts are briefly these : Opposite party 1 Dhirendra Nath Dutt brought a suit for partition against his brothers Surendralal Dutt and Rabindra Nath Dutt (who are opposite parties 2 ani 3 respectively) claiming a one-third share in their joint paternal properties, which include premises No. 28/1, Wellington Street, Calcutta. Surendra Lal and Rabindra Nath appeared in due course and filed written statements. The defence of Surendra Lal was that Rabindra Nath had been suffering from congenital, complete and absolute idiocy and consequently that he himself, Surendra Lai, was entitled to a half-share in the properties. Rabindra Nath in his written statement raised no objection to the properties being partitioned. One of the issues raised on the aforesaid pleadings was: Is defendant 2 (Rabindra Nath) suffering from congenital, complete and absolute idiocy and lunacy as suggested by defendant 1 Surendra Lal? If so, is he entitled to inherit his paternal properties?

(2.) The petitioner in this rule had, before the institution of the aforesaid partition suit, advanced a sum of Rs. 500 to Rabindra Nath on a mortgage of Rabindranath's share in premises No. 28/1, Wellington Street. In June 1939, after the institution of the partition suit, the petitioner applied to the Subordinate Judge for leave to institute a suit for enforcement of the above mortgage against Dhirendralal, the plaintiff in the partition suit, who meanwhile had been appointed receiver of the properties in the suit. The application was opposed by Surendra Lal and while opposing it he made a substantive application for adding the petitioner as a party in the partition suit. On 12 July 1939, the Subordinate Judge granted the application and ordered the mortgagee to be added as a defendant in the partition suit on the ground that the addition would avoid multiplicity of proceedings. It is against this order that the present rule is directed. The advocate for the petitioner contends that in ordering the addition of the mortgagee as a party the Subordinate Judge exceeded the jurisdiction conferred by Order 1, Rule 10(2), Civil P.C. The sub-rule in question empowers the Court only to add the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit.

(3.) The argument is that the questions involved in the partition suit are questions relating to the paramount title of the several parties whereas a mortgagee is only concerned with a derived and subordinate interest. The question whether a mortgagee should be added as a party in a partition suit may arise in two classes of cases : (1) where the extent of the mortgagor's share is not in dispute in the partition suit and (2) where the extent of the mortgagor's share is in dispute. In the former class of cases the mortgagee's interest in the partition proceedings will only be to see that his mortgagor is given a proper allotment. In this class of cases the practice in Bengal has been not to add the mortgagee as a party, but to give him leave to attend fche proceedings as a "quasi-party" Khetterpal Sritirutno V/s. Khelal Kristo (1894) 21 Cal 904 at p. 909. We are not aware of any reported case of the second class where this practice has been followed. On the other hand, the practice in all partition cases in certain other Provinces of India and according to some authorities, in England also, would seem to be to join mortgagees as parties, as a matter of course, wherever the mortgage is on an undivided share of the property. In Jadunath V/s. Parameswar , (a case of the first type) their Lordships of the Judicial Committee, after referring to the Bengal practice and the practice elsewhere go on to observe: The mortgagee of an undivided share might be prejudiced if that share did not receive a proper allotment in severalty, and it is for the benefit of all other persons interested in the joint property that such a mortgagee should be bound by the allotment. Hence it will in general meet the case it he is allowed to attend and be heard at that stage at whigh the making of a proper allotment is effected, just as in other types of cases a person interested only in the result of a particular account may be allowed to attend at the taking of that account, especially if it be in the interests of others that he should not thereafter dispute the result. It is a fundamental condition of this practice in partition cases in Bengal that the extent of the share should not be in dispute; on that assumption an important advantage of the practice is that it lightens the partition suit by avoiding the necessity of deciding as to the existence and validity of the mortgages claimed over the undivided shares.