VISHNU SAHU Vs. GOBIND SAHU

JUDGEMENT

(1.) Heard counsel for the petitioner and counsel for respondents 1 and 2. In the nature of the order I propose to make, I do not think it necessary to issue notices to respondents 4 to 7, the heirs of the brother of respondents 1 and 2.

(2.) Respondent No.1 herein, Gobind Sahu filed a suit for partition of the ancestral properties and for a declaration that certain properties standing in his name are not available for partition. Gopi Sahu, respondent No.2 herein resisted that suit. The trial Court passed a preliminary decree for partition upholding the claim of Gobind Sahu, the plaintiff. It held that Gobind Sahu was entitled to 1 /3rd share in the ancestral properties and it further held that the properties standing in his name are not available for partition. Being aggrieved by this decree, Gopi Sahu filed a Title Appeal. T. A. No. 58 of 2003. It may be noted that in the suit; the children of Gobind Sahu and the children of Gopi Sahu were not parties. The widow and children of their third brother, Harakh Nath Sahu, came into the picture only on the death of Harkh Nath Sahu, pending suit.

(3.) In the appeal, a petition for compromise under Order 23, Rule 3 of the Code of Civil Procedure was filed submitting that due to the intervention of well wishers, the dispute between the parties has been settled and they have agreed to divide all the properties including those found to be the separate properties of Gobind Sahu by the trial Court, each brother taking 1/3 rd of the properties. When this compromise petition was filed, the petitioner herein, a son of Gobind Sahu, the plaintiff in the suit, came forward with an application seeking to get himself impleaded by invoking Order 1, Rule 10 of the Code of Civil Procedure. He raised an objection that the compromise should not be accepted, since his father was not in a sound state of health, he was not capable of protecting his own interests and that the compromise was prejudicial to his branch family, of which the petitioner was a member. On behalf of Gopi Sahu, the appellant in the appeal, this application was opposed on the ground that the applicant was a third party, was not entitled to come on record in the appeal and that there was nothing illegal or improper in the compromise entered into and the attempt to disrupt the family again, in spite of the compromise should not be encouraged. The appellate Court noticed the decision of the Bombay High Court to the effect that in a suit for partition of a Hindu undivided family, it will be enough if the heads of the branches are impleaded and junior members are not necessary parties. It further proceeded to say that it was not necessary to implead the petitioner, the son of Gobind Sahu as a party to the appeal. It dismissed the application. This is sought to be challenged before me in this revision petition.