SSM 1 905.wp.10234.10 IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 10234 OF 2010 Shri. Appasaheb Govindrao Tate ....Petitioner Versus Sou. Kiran Rajendrarao Patil and ors. ....Respondents _______ Mr. Satyajeet M. Mirajkar for the Petitioner. Mr. G. M. Savagave for Respondent Nos. 1 to 3. Mr. Sanskar i/b T. D. Deshmukh for Respondent No. 5. Mr. S. S. Shah for Respondent No. 9. CORAM: B. R. GAVAI, J. DATED : 23 rd FEBRUARY, 2011. P.C.: This Petition is filed by the Petitioner challenging the order dated 17 th September, 2010, vide which the application filed by the original Defendant No. 6 for transposing her as the Plaintiff came to be allowed. 2. Undoubtedly, all the parties are related to each other. The Petitioner is the wife of the Defendant No.1, the Defendant No. 2 is SSM 2 905.wp.10234.10 son of the Plaintiff and the Defendant No. 6 who is allowed to be transposed, and the Plaintiff No. 2 is the daughter of the Plaintiff and the Defendant No. 1. The suit came to be filed by the Plaintiff for partition and possession of suit property. It was the contention of the Plaintiff that the Defendant Nos. 1 and 2 have illegally partitioned the suit property without giving the legitimate share of the Plaintiff. In the said suit, an application was filed by the Defendant No. 6 contending therein that since the father of the coparcener is surviving prior to the partition being effected the daughters are also entitled to share; and therefore, she should be impleaded as coparcener. The said application is allowed, hence, the present Petition. 3. Shri. Mirajkar, learned Counsel for the Petitioner submits that the learned Trial Court grossly erred in allowing the application. Relying on the Judgment of the learned single Judge in the case of Thakur Chaudhry and others V/s. Brahmdeo Chaudhry and others reported in AIR 1979 PATNA 58, the learned Counsel SSM 3 905.wp.10234.10 submits that since the interest of the Plaintiff and the Defendant No. 6 is conflicting an application for transposition of the Defendant No. 6 as Plaintiff could not have been allowed. 4. Shri. Savagave, learned Counsel appearing for the original Defendant No. 6 submits that the learned Trial Court has allowed the application by considering the relevant aspects and therefore, no interference is warranted. 5. The suit is admittedly for a partition. The only ground raised on behalf of the Petitioners is that the interest of the Defendant No. 6 and Plaintiff is conflicting; and therefore, such an application could not have been allowed. In this respect, the learned Counsel relies on the fact that the Plaintiff has stated in the Plaint that the property has been partitioned between the Petitioner and Defendant No. 2 whereas the Defendant No. 6 says that there is no such partition. I find that the said contention is without reading the averments in entirety. A particular sentence in pleading cannot be SSM 4 905.wp.10234.10 picked up to find out the intention of the Defendant No.6. The application will have to be read in whole. The application of Defendant No. 6 if read as a whole would reveal that since the Defendant Nos. 1 and 2 have denied the execution of the effect of the partition, she has made an averment that there is no partition prior to the death of father of the coparcener and as such she is entitled to share in the property. 6. I do not find any conflict in the interest of the Plaintiff and the Defendant No. 6. In so far as the judgment of the Patna High Court which is relied upon by the Petitioner is concerned, in that case after the suit was filed and when the written statement was also filed by the contesting Respondent, the application came to be filed by the Defendant for transposing itself as Plaintiff on the ground that the Plaintiff was withdrawing from the suit. The said Application is allowed. In that view of matter, the Patna High Court took a view that since the interest of the Plaintiff and the Defendant was SSM 5 905.wp.10234.10 conflicting, the Petitioner could not have been transposed as Plaintiff and vice a versa, such is not a case. 7. In any event, the Plaintiff does not object to transpose the Defendant No. 6 as Plaintiff. In this respect In this respect, reliance can be placed in the case of Kiran Tandon V/s. Allahabad Development Authority and another reported in 2004 (10) SCC 745. 8. In that view of the matter, no case is made for interference in extraordinary jurisdiction of this Court. Therefore, the Petition is rejected. 9. As this Court has already expedited the hearing of the suit, the learned Trial Court is expected to decide the suit as expeditiously as possible. (B. R. GAVAI, J.)