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Syed Mohiddin (Died) And Another v. Abdul Rahim And Others
Factual and Procedural Background
The petitioner’s father, late Mahiuddin, filed a suit for partition of certain properties as a grandson of Khader Ali. The defendants were other grandsons through the first wife. The suit was instituted on 4-12-1951, and a preliminary decree was passed on 22-9-1953 directing partition into seven equal shares, allotting three shares to the plaintiff. A Commissioner was appointed for division. While partition of the A schedule properties was effected, objections arose during the partition of the B schedule site, a house and land purchased by third parties in 1913 who had made significant improvements. The Commissioner sought court directions. The plaintiff filed a petition to partition the remaining site excluding portions in third-party possession, while the third parties applied to be impleaded as defendants. The Additional District Judge dismissed the petitioner’s application to implead the third parties on 26th September 1956, finding no bona fide in the application, and subsequently ordered the Commissioner not to proceed with the division of the B schedule site. The revision petition challenges the dismissal order of 26th September 1956.
Legal Issues Presented
- Whether a third party can be added as a defendant to a partition suit after a preliminary decree has been passed.
Arguments of the Parties
Petitioner’s Arguments
- Reliance on precedents such as Krishna Lal Jha v. Mandeswar Jha, Noor Mohammad v. Zainul Abdin, Krishna Iyar v. Subrshmania Aiyar, and Jotindra Mohan Tagore v. Bejoy Chand to assert that respondents can be impleaded even after the final decree.
- Argument that a partition suit remains pending litigation until the final decree is signed by the Court, thus allowing addition of parties under Section 32 of the Code of Civil Procedure (C.P.C.) before termination of the suit.
- Submission that partition suits under Hindu Law are exceptions allowing courts to consider matters subsequent to the suit’s commencement to avoid multiplicity of proceedings and save costs.
- Contended that the respondents’ application to be impleaded was bona fide and that there was no deliberate omission by the plaintiff to exclude them, especially given the plaintiff’s infirmities noted at the preliminary decree stage.
- Urged the court to allow impleading the respondents in the interest of justice and to avoid multiplicity of suits.
Respondents’ Arguments
- The only favorable decision cited for respondents was Namesa Gangasa v. Motisa, which holds that persons not joined before the preliminary decree cannot be added after it, as they are not bound by the decree and the court cannot reopen the case on matters anterior to that decree when no injustice results from their exclusion.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Krishna Lal Jha v. Mandeswar Jha, AIR 1921 Pal 296 | Permitting addition of parties after final decree in partition suits. | Supported the view that suit remains pending until final decree is signed, allowing impleading of parties. |
| Noor Mohammad v. Zainul Abdin, AIR 1940 All 399 | Reinforces procedural flexibility in partition suits. | Used to bolster petitioner’s argument for adding parties post preliminary decree. |
| Krishna Iyar v. Subrshmania Aiyar, AIR 1924 Mad 648 | Court may add interested parties even after preliminary decree and reopen decree for them. | Applied to justify impleading respondents after preliminary decree. |
| Jotindra Mohan Tagore v. Bejoy Chand, ILR 32 Cal 483 | Partition suit remains pending litigation until final decree signed. | Emphasized that rights can be determined until suit termination, allowing addition of parties. |
| Namesa Gangasa v. Motisa, AIR 1935 Nag 64 | Persons not joined before preliminary decree cannot be added after it. | Represented the respondents’ sole favorable precedent, but distinguished on facts. |
| Unspecified Patna High Court case, AIR 1921 Patna 296 | Partition suits under Hindu Law allow consideration of matters subsequent to suit commencement. | Supported principle to avoid multiplicity of proceedings and save costs. |
Court's Reasoning and Analysis
The court began by framing the core issue of whether third parties could be added after a preliminary decree in a partition suit. It noted that partition suits remain pending litigation until the final decree is signed by the Judge on stamped paper as required by the Stamp Act, thus the suit does not terminate at the preliminary decree stage. The court relied on several precedents establishing that the rights of parties in partition suits can be determined even after the suit’s commencement to avoid multiplicity of suits and unnecessary costs. It distinguished the sole precedent favoring respondents, Namesa Gangasa v. Motisa, on facts, noting that the respondents themselves sought to be impleaded and that the plaintiff’s omission to do so earlier was not deliberate but due to his infirmities. The court found no legal bar to impleading the respondents under Section 32 of the C.P.C. and held that justice and procedural economy favored their addition. Consequently, the court allowed the revision petition and remanded the case for impleading the respondents and proceeding according to law.
Holding and Implications
The court allowed the revision petition and directed the lower court to implead the respondents as defendants to the partition suit and proceed to dispose of the matter according to law.
This decision directly affects the parties by permitting the addition of third parties after a preliminary decree in a partition suit, emphasizing that such suits remain pending litigation until the final decree is signed. No new precedent was set beyond affirming established principles, and no costs were imposed.
1. The short question that requires determination in this C. R. P. is whether a third party could be added as defendant to a suit for partition in which a preliminary decree has been passed.
2. The question arises in the following circumstances: The petitioner's father late Mahiuddin filed a suit for partition of certain properties mentioned in a and 8 schedule claiming to be the grandson of one Khader Ali. The defendants to the proceedings were the grandsons of the same ancestor through the first wife. The suit was instituted on 4-12-1951 and a preliminary decree was passed on 22-9-1953 directing the partition of the properties by metes and bounds into 7 equal shares and allotting 3 shares out of 7 shares to the plaintiff. Thereafter a Commissioner was appointed on an applica-tion (I. A. 510/55) for the division of ths properties. So far as A schedule was concerned, the partition was effected. But when the Commissioner came for the measurement and partition of B schedule, which consisted of a house, 1500 sq. yards in extent, the Commissioner found that many objections were raised by the defendants (third parties) who had purchased the suit house in or about 1913 and built a pucca house by spending heavy amounts thereon. He, thereupon sought for the directions of the Court.
The plaintiff-petitioner filed a petition for partition of the rest of the site leaving the portions that were in possession of third parties and an application was filed by third parties for being impleaded as parties to the proceedings. The learned Additional District Judge by his order dated 26th September 1956 dismissed the petition holding that he saw no bona fides in making the application to implead the parties to the suit at this stage. On the next day i.e., on 27th September 1956 he passed another order directing the commissioner not to proceed with the division of B schedule site. It is to be noted that he also dismissed the petitions filed by the respondents herein for being impleaded as a party on the ground that he had issued a ditection to the Commissioner not to proceed with the division. It is against the first order i. e., of 26th September 1956 that the revision petition has been filed.
3. The learned counsel for the petitioner relying on Krishna Lal Jha v. Mandeswar Jha, AIR 1921 Pal 296, Noor Mohammad v. Zainul Abdin, AIR 1940 All 399, Krishna Iyar v. Subrshmania Aiyar, AIR 1924 Mad 648 and Jotindra Mohan Tagore v. Bejoy Chand, ILR 32 Cal 483, has urged that the respondents herein could be impleaded as a party even after the passing of the final de-cred. In the Calcutta case referred to above ILR 32 Cal 483 it was held that a suit for partition, even when the report of the Commissioners is confirmed and a decree is directed to be drawn in accordance therewith, is a pending litigation, until the Court signs the final decree.
4. A decree for partition, to be operative must be engrossed on stamped paper as required by the Stamp Act, and until the Judge signs the decree so engrossed, it cannot be said that the suit terminated, and an order directing a party to be added under Section 32 of the C. P. C. can be made in such a suit before it has actually terminated.
5. The same view has been taken by the Patna High Court, (AIR 1921 Patna 29G). Though it was a case of partition under Hindu Law, however, the principle enunciated therein is that proceedings for final decree are proceedings in a suit and although, ordinarily, the rights of the parties ought to be determined as at the date of the institution of the suit, a suit for partition under the Hindu Law is treated as an exception and, In order to save costs and to prevent multiplicity of proceedings, the Courts are entitled, and even bound to take into consideration matters subsequent to the commencement of such a suit
6. In AIR 1924 Mad 648, it was held that where circumstances render it necessary, the Court may add a person interested in the equity of redemption as a party even after the preliminary decree and can reopen the decree as far as added party is concerned.
7. The only decision in favour of the respondents seams to be reported in Namesa Gangasa v. Motisa, AIR 1935 Nag 64, wherein it has been held that where subsequent to a preliminary decree in a partition suit, an application is made to implead certain persons as parties who would have been proper parties if they were joined before preliminary decree; they cannot be joined after the preliminary decree, as they are not bound by it nor can the Court ignore it and rip up the case against a point anterior to that decree, especially when no injustice will be done by not adding them.
8. The said ruling can be distinguishable on facts, in the instant case as staled above, the respondents themselves filed applications to be impleaded as parties and there is observation in the judgment of the learned Judge who passed the preliminary decree in regard to the mental make up and, infirmities of the plaintiff in O. S. 64/51 i.e., the father of the plaintiff-petitioner. It has been observed by the learned Judge that "from the demeanour of P.VV. 1 i.e., the plaintiff, I have to observe that the plaintiff is an old man lacking intelligence and very credulous." Further "it is not surprising that a man of his type did not apply for mutation of his name In the Municipal registers ....."
9. In view of these observations, it could not be urged that there was any deliberate omission on the part of the plaintiff-petitioner in not impleading the respondents herein as parties to the suit. I also find myself in agreement with the contention of the learned counsel for the petitioner that in the interests of justice and to avoid multiplicity of suits, it is desirable to implead the respondents as parties to the proceedings, there being no legal bar to the adoption of such procedure.
10. I therefore, allow the revision and remand the case to the lower Court for impteading the respondents as defendants to the proceedings. The lower Court also will consider the applications filed by the respondents I. As. 867 to 869 of 1956 and will proceed to dispose of the matter according to law. No costs.
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