Whether Husband of deceased daughter is necessary party to suit for partition?

I find considerable force in the submission of the learned counsel for the petitioner. The suit is for partition by reopening the earlier partition. The petitioner's daughter Smt. R. Bharathi has died leaving behind her defendants 6 to 8 and the second respondent. They are the LRs of the deceased Smt. R. Bharathi. The second respondent is not a party to the proceedings though he is representing the defendants 6 to 8 as guardian. Being a legal heir of deceased Bharathi, the second respondent is a necessary party to the proceedings. Therefore, the impugned order cannot be sustained in law.

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

Writ Petition No. 52216/2013(GM-CPC)

Decided On: 04.02.2014

Appellants: Smt. Puttaningamma
Vs.
Respondent: Smt. Anitha and Sri Suresh Babu

Hon'ble Judges/Coram:H. Billappa, J.

1. In this writ petition under Articles 226 and 227 of the Constitution of India, the petitioner has called in question, the order dated 29-7-2013, passed by the trial court in O.S. No. 301/2006 on I.A. filed under Order 1 Rule 10(2) of CPC vide Annexure-D.

2. By the impugned order at Annexure-D, the trial court has rejected I.A. filed by the petitioner under Order 1 Rule 10(2) of CPC.

3. Aggrieved by that, the petitioner has filed this writ petition.

4. Briefly stated the facts are:

The petitioner has filed suit in O.S. No. 301/2006 for partition and other reliefs. The parties have led their evidence. At the stage of arguments, the petitioner has filed I.A. under Order 1 Rule 10(2) of CPC to implead the second respondent as party to the proceedings. The trial court by its order dated 29-7-2013 has rejected the application. Therefore, this writ petition.

5. The learned counsel for the petitioner contended that the impugned order cannot be sustained in law. He also submitted that the second respondent being the husband of deceased R. Bharathi, the daughter of the petitioner is a necessary party to the proceedings. Therefore, the impugned order cannot be sustained in law.

6. As against this, the learned counsel for the first respondent submitted that the impugned order does not call for interference. He also submitted that the second respondent is already on record as guardian of the defendants 6 to 8 and the application has been filed to protract the proceedings and therefore, the impugned order does not call for interference.

7. I have carefully considered the submissions made by the learned counsel for the parties.

8. I find considerable force in the submission of the learned counsel for the petitioner. The suit is for partition by reopening the earlier partition. The petitioner's daughter Smt. R. Bharathi has died leaving behind her defendants 6 to 8 and the second respondent. They are the LRs of the deceased Smt. R. Bharathi. The second respondent is not a party to the proceedings though he is representing the defendants 6 to 8 as guardian. Being a legal heir of deceased Bharathi, the second respondent is a necessary party to the proceedings. Therefore, the impugned order cannot be sustained in law.

Accordingly, the writ petition is allowed and the impugned order passed by the trial court in O.S. No. 301/2006 on I.A. filed under Order 1 Rule 10(2) of CPC is hereby set aside. The second respondent is permitted to come on record as one of the defendants.

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