IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Revision No. 6802 of 2010 Date of decision: January 21, 2011 Suman and another .. Petitioners Vs. Sunil Vohra and others .. Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. B.R. Vohra, Advocate for the petitioners. Mr. Kapil Arora, Advocate for the respondent No.1. Mr. Ravinder Pal Singh, Advocate for Mr. Namit Kumar, Advocate for the respondent No.3. A.N. Jindal, J (Oral) This petition assails the order dated 15.9.2010 passed by the Civil Judge (Jr. Division), Sonepat dismissing the application of Suman and Smt. Kailash Vohra for impleading them parties in the counter claim filed by the defendant Sunil Vohra (now respondent No.1). The facts in the background of the case are that Viney Vohra filed a suit for declaration along with consequential relief of possession qua House No.203-204 situated at 8 marla Sonepat on the ground that he being the legal heir of Shakuntala is entitled to the share in the property. The admitted pedigree table is that Shakuntala and Dharampal are sister and brother. Dharampal pre-deceased Shakuntala leaving behind his widow Kailash Vohra, daughter Suman and Sunil Vohra and Viney Vohra his two sons. Viney Vohra claimed title over the property on the basis of the Will dated 30.11.1998, whereas, Sunil Vohra claimed titled over the property on the basis of the Will dated 14.5.2007 whereas the applicants are claiming their right in the property on the basis of the natural succession. The first argument raised by the learned counsel for the petitioners is that since the plaint filed by Viney Vohra has been rejected, therefore, the petitioners could not be impleaded as party in the counter claim. In this regard it may be observed that the counter claim is like an independent suit which could continue even if the case of the plaintiff is stalled, discontinued or dismissed and even if the plaintiff is not filing the Civil Revision No. 6802 of 2010 -2- *** written statement to the counter claim. Since it is an independent cause of action and adjudication is required and the court is allowed to proceed to adjudicate the same in spite of the fact that no claim is made in a suit filed by the plaintiff. Similar observations were made by the Bombay High Court in case Teofilo Barreto vs. Sadashiva G. Nasnodkar & Ors. 2007 (4) RCR (Civil) 275. As such, notwithstanding the fact that the plaint has been rejected the counter claim as filed by Sunil Vohra would be treated as plaint on an independent cause of action, therefore, there is no bar for allowing the application under Order 1 Rule 10 CPC filed by the necessary parties whose rights are effected by the pendency of the said suit. Now coming to the fact, “whether the applicants- petitioners are necessary parties?” At the cost of repetition, Shakuntala and Jaiwati are two sisters and Dharampal was their brother. Shakuntala died issueless and unmarried. Viney Vohra and Sunil Vohra being sons and Suman is the daughter and Kailash Vohra being widow of Dharampal are his legal heirs. In other words, the status of Suman is at par with Sunil Vohra and Viney Vohra. As per Section 15 of the Hindu Succession Act, if a female Hindu dies intestate, her property shall devolve according to the rules as set out in Section 15. “General rules of succession in the case of female Hindus – (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16 - (a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband; (b) secondly, upon the heirs of the husband; © thirdly, upon the mother and father; (d) fourthly, upon the heirs of the father; and (e) lastly, upon the heirs of the mother. (2) Notwithstanding any contained in sub-section (1) - (a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the Civil Revision No. 6802 of 2010 -3- *** children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and (b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre- deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband.” On perusal of Section 15, it transpires that firstly the property shall go to the sons and daughters including the children of any pre- deceased son or daughter of the husband; secondly, upon the heirs of husband; thirdly upon the mother and father and fourthly, upon the heirs of the father. Admittedly, Shakuntala Devi died issueless, her husband and brother had pre-deceased her and only claimants of her property are the sons and daughters of her brother i.e. heirs of her father. In the absence of any heir of Class A, B or C as described in Section 15 of the Act, the property of the deceased would go to the heirs of the father. In this manner, the widow of Dharampal does not fall within the heirs of the father, as such, she cannot be said to be a necessary party to the suit, whereas, Suman being the daughter of Dharampal, equally situated to the other heirs namely Sunil Vohra and Viney Vohra, is certainly a necessary party. I was informed that Jaiwanti being the sister of Shakuntala is also her heir but she has not applied for impleading herself to became party to the suit. If Sunil Vohra failed to prove the Will in his favour then the property would devolve upon the heirs of Dharampal in equal share, as such, Suman could be allowed to contest the counter claim as filed by Sunil Vohra. The trial court has taken wrong note of the matter while stating that since there was no Will in favour of Suman, therefore, she could not be treated as necessary party. I find support to my this view from the judgment delivered in case Vanessa Rose Civil Revision No. 6802 of 2010 -4- *** Vadera vs. Aswal Vadera and others 2007 (5) RCR (Civil) 657. In the instant case also, since there is dispute with regard to the inheritance of Shakuntala, therefore, the presence of the petitioners before the court is necessary for just decision of the case. Under these circumstances, the revision petition is accepted, impugned order is set aside and the application filed by the petitioners for being impleaded as party is allowed. January 21, 2011 (A.N. Jindal) deepak Judge