A Hindu wife cannot claim partition from her husband during his lifetime.

JUDGMENT :

l. The substantial questions of law involved, formulated and to be answered in this second appeal preferred by the appellant/defendant No.1 is as under:-

"1. Whether a Hindu wife can claim partition from her husband during the life time of the husband ?

2. Whether Janki Bai and the issues born out from her marriage with Narayan would be necessary party in the suit and in the absence of their joining, no effective decree for partition can be passed ?"

[For the sake of convenience, the parties would be referred hereinafter as per their status shown and nomenclature in the suit before the trial Court].

2. Plaintiff No. 1 and plaintiff No. 2 respectively claiming themselves to be son and wife of defendant No. 1-Narayan filed a suit for declaration of title, partition and possession stating inter-alia that plaintiff No. 2 is wife of defendant No. 1 in chudi form and out of that wedlock plaintiff No. 1 was born, as such, they are entitled for 2/3rd share in the suit property being ancestral property of defendant No.1. It was further pleaded that defendant No.1's legally wedded wife Draupadi Bai after six months of her gowna, left defendant No.1 and married with other person in chudi form by taking chhod chhutti after obtaining legal expenses for marriage and thereafter married with plaintiff No. 2 in chudi form and therefore defendant No.1 allegedly remarried (third) with Janki Bai, as such, they are entitled for partition and possession.

3. Defendant No.1 has filed his written statement and denied the averments made in the plaint stating inter-alia that plaintiff No.1 is not his son and plaintiff No.2 has married with some other person and further stated that he after taking divorce from Draupadi Bai in chudi form married with Janki Bai and out of his wedlock, Pushpabai, Domar, Dwarika @ Durbasa, Gangabai, Latabai and Omprakash were born and they are living with defendant No.1 and as such, the plaintiffs are not entitled for any share in the suit property and the suit is also not maintainable during life time of defendant No.1.

4. The trial Court after appreciating oral and documentary evidence available on record, by its judgment and decree dated 25.1.2007, held that the suit property being ancestral property and plaintiff No. 2 being legally wife of defendant No.1 in chudi form and plaintiff No.1 being legitimate son of defendant No.1 out of his wedlock with plaintiff No.2-Amrika Bai are entitled for 2/3rd share in the suit property, which was assailed by defendant No.1 in appeal, but he remained unsuccessful, against which, this second appeal under Section 100 of the CPC has been preferred by the appellant/defendant No.1, in which substantial questions of law have been formulated by this Court, which have been set-out in the opening paragraph of this judgment.

5. Mr. Sachin Singh Rajput, learned counsel for the appellant/defendant No.1, would submit that plaintiff No.2 is at all married with defendant No.1, the suit for partition during life time of her husband/defendant No.1 would not be maintainable, as such, decree is bad to that extent. He would further submit that Janki Bai, wife of defendant No.1 and his sons & daughters are necessary party in the suit and in absence of their impleadment as party defendant, no effective decree for partition could have been passed. He relied upon the judgment of the Bombay High Court in the matter of Uday Narendra Shah v. Narendra Amritlal Shah, 2014 (2) Mh.LJ. 739 and the judgment of the Supreme Court in the matter of Man Singh (Dead) by LRS. v. Ram Kala (Dead) by LRS. and others, (2010) 14 SCC 350.

6. On the other hand, Mr.Amit Kumar Sahu, learned counsel for respondents No.1 and 2/plaintiffs, would support the impugned judgment and decree and submit that sons and daughters of defendant No.1 out of his third marriage with Janki Bai are illegitimate child and therefore, they are not necessary party in the suit and are not entitled for any share in the suit property which was ancestral pr