1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 5111 OF 2008 Subhod s/o Sharnappa Malkatte & Anr ...Petitioners Versus Jagdevi w/o Panditrao Wakade & Ors ...Respondents ..... Mr. P.V. Barde h/f M.A. Kandharkar, advocate for the petitioners Mr. S.M. Vibhute, advocate for respondent No. 1 ..... CORAM: S. S. SHINDE, J. DATED: 4TH AUGUST, 2009 PER COURT:- 1 This writ petition is directed against the order dated 24.6.2008 passed by the IInd Joint C.J.J.D. at Omerga on an application Exh.84 filed by the petitioner for adding themselves as party respondent in R.C.S. No. 56 of 2004. The brief facts of the case are as under:- Respondent No.1 herein who is original plaintiff has filed R.C.S. No. 56 of 2004 in the Court of C.J.J.D. Omerga against the present respondent Nos. 2 to 4 (original defendants) for partition and separate 2 possession of land as described in the plaint, situated at Omerga. The present respondent Nos. 2 to 4 who are original defendants resisted the suit by filing written statement at Exh.15. On 31.3.2008, the petitioners filed application below Exh.84 in R.C.S. No. 56 of 2004 for adding themselves as party respondents by contending therein that the suit property is the Hindu Joint Family and ancestral property of original defendant Nos. 1 to 3 and the present petitioner are having their birth right of partition in the suit property and as such they are required to be added in the R.C.S. No.56 of 2004 as party respondents Nos. 4 and 5. The present respondent No.1 opposed the application Exh.84 by filing her say. Learned Judge has rejected the said application and hence, this writ petition. 3 Learned counsel appearing for the petitioner submitted that the stand taken by the father of the petitioners is contrary to the stand of the petitioners. It is further submitted that if the petitioners are allowed to join parties then separate written statement can be filed on their behalf. Addition of the petitioners, as party respondents, would not prejudice the interest of the original plaintiffs and same would avoid multiplicity of proceedings. Learned counsel invited my attention to page 29 of the compilation i.e. part of Order below Exh .84 in R.C.S. 3 No. 56 of 2004 and submitted that from Principles of Hindu Law by Mullah 16th Edition in para 333 (b) it is mentioned that in a suit for partition it is desirable that the following persons should be made parties;- (i) a mortgagee with possession of the family property or of the undivided interest of a coparcener (e) : (ii) simple mortgages of specific items of the family (e) : (iii) purchaser of the undivided interest of coparcener (e) : (iv) persons entitled to provision for their maintenance and marriage, that is, widows, daughters, sisters, and such like, and disqualified heirs: (v) any person entitled to maintenance from the family (f). The plaintiff may also implead any other coparcener or any persons interested in the family property such as mortgage of a lessee. Such a person may himself apply and be made a party. 4 On the basis of the above provisions, learned counsel would submit that the plaintiffs may also implead any other coparcener or any person interested in the family property such as mortgage of a lessee or such person may himself apply and be made a party. Therefore, on the basis of above mentioned provisions, the learned counsel 4 vehemently submitted that the petitioner are necessary parties in the pending suit and therefore, he prayed that the impugned order be quashed and set aside by allowing the application filed by the present petitioners for adding them party respondents in the pending Suit. 5 Learned counsel appearing for the respondents invited my attention to the relevant extract of para 333 (b) of the Principles of Hindu Law by Mulla, 6th edition and submitted that following persons can be parties to the suit for partition. Learned counsel invited my attention to the para (2) (a) and submitted that the plaintiff in partition suit should implead as defendants. (i) the heads of all branches (ii) females who are entitled to a share on partition. (iii) the purchaser of a portion of the plaintiff’s share, the plaintiff himself being a coparcener; (iv) if the plaintiff himself is a purchaser form a coparcener, his aliener. 6 Learned counsel therefore, would submit that when the head/Karta of the family is defendant in the suit, then it is not necessary to add remaining persons of the said family as party 5 defendant. The learned counsel submitted that petitioners are sons of his brother and they are not necessary parties in view of the fact that Karta of the family is made defendant in the suit. 7 I have heard learned counsel appearing for the petitioners and the respondents at length. On careful perusal of para 333 (2)(a) from Principles of Hindu Law by Mulla would clearly show that the necessary parties in the suit for partition the heads of all branches, females who are entitled to a share on partition, the purchaser of a portion of the plaintiff’s share, the plaintiff himself being a coparcener and if the plaintiff himself is a purchaser from a coparcener, his aliener. Therefore, necessary parties are clearly indicated in which admittedly the case of the petitioners does not fall. The said part further shows that if the necessary parties are not joined then the suit is liable to be dismissed and the entire joint family must be represented either expressly or implicitly. 8 Reliance which is placed by the learned counsel for the petitioner on para 333(b) is wholly misplaced. It is for the plaintiff, if he desires to add the persons shown in the said paragraph to be added as party respondents. Learned counsel for the respondents is perfectly justified in his argument that once Karta of the family is party to the suit, it is not necessary to add other members, just to create multiplicity of the pleading. The provisions in clause (2) (b) of para 333 6 of Principles of Hindu Law by Mulla 6th edition is enabling the plaintiff to add certain categories as party respondents, if he so desires and no direction can be given to the plaintiff to add those categories mentioned in the 333 (2) (b) of the Principles of Hindu Law by Mulla. Therefore, there is no substance in the writ petition and no interference is called. Writ petition is accordingly dismissed. Interim relief, if any, stands vacated. *****