JUDGMENT :

[Sachin Datta, J.]

O. A. No. 44/2022

1. The present Original Appeal under Chapter-II Rule-5 of the Delhi High Court (Original Side) Rules, 2018 has been filed on behalf of the plaintiff/appellant against the order dated 07.09.2022 of the Joint Registrar (Judicial), whereby the application bearing I.A. No. 6407/2022 preferred under Order I Rule 10 of the Code of Civil Procedure (CPC), 1908 by one Smt. Jayanti, seeking impleadment of herself in the present suit, was allowed.

2. The present suit seeks partition and permanent injunction qua the estate of deceased Shri Mehtab Singh Sethi comprising of property bearing Khasra No. 2165/1523/4, 2275/1519 and 2276/1519 measuring 15,876 square yards situated in Revenue Estate of Village Tughlakabad, H-Block, Gali No. 16, Ratiya Marg, Sangam Vihar, New Delhi-110062. The plaintiff and the defendant no. 1 alongwith the defendant nos. 3 & 4 are the sons of the deceased Shri Mehtab Singh Sethi, whereas the defendant nos. 5 & 6 are the daughters of the deceased Shri Mehtab Singh Sethi; the defendant no.2 is the wife of the deceased Shri Mehtab Singh Sethi. The suit is premised on the basis that Mehtab Singh Sethi died intestate on 13.04.2012 leaving behind the parties to the instant suit as the only surviving legal heirs to inherit his estate. In I. A. No. 6407/2022, the applicant/Smt. Jayanti Sethi avers that she is the lawfully married wife of the deceased Mehtab Singh Sethi having been married to him on 24.09.1976. The said marriage is stated to have been duly registered with the Registrar of Marriage under the Hindu Marriage Act, 1955.

3. It is asserted in I.A. 6407/2022 that the defendant no.2, Mrs. Mary Sethi, the first wife of the deceased Shri Mehtab Singh Sethi, had deserted the deceased and left for United Kingdom and she never returned to India. Thereafter, the deceased disinherited Mrs. Mary Sethi, the plaintiff and the defendant nos. 3 to 5 from his property and executed the Will dated 25.12.2009 in favour of the applicant/Smt. Jayanti Sethi in respect of all his properties. Significantly, the said Will has also been referred to in the written statement filed on behalf of the defendant nos. 1 and 6. The said defendant nos. 1 and 6 had taken an objection in the written statement with regard to the non-impleadment of the applicant/Smt. Jayanti Sethi, since according to the said defendants, the applicant/Smt. Jayanti Sethi is a necessary party to this proceeding.

4. The impugned order rightly takes note of the judgment of the Supreme Court in Kasturi vs. Iyyamperumal And Ors., 2005 (6) SCC 733, in which the Supreme Court has laid down two tests for determining whether any party is a necessary party to a suit. The two tests are (i) there must be a right to some relief against such party in respect of controversies involved in the proceedings, (ii) No effective decree can be passed in the absence of such party. The relevant extracts of Kasturi (supra) are as under:

“13. From the aforesaid discussion, it is pellucid that necessary parties are those persons in whose absence no decree can be passed by the court or that there must be a right to some relief against some party in respect of the controversy involved in the proceedings and proper parties are those whose presence before the court would be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit although no relief in the suit was claimed against such person.”

5. Likewise in the case of Vidur Impex and Traders Pvt. Ltd. and Ors. Vs. Tosh Apartments Pvt. Ltd. and Ors. 2012, 8 SCC 384, it has been held by the Supreme Court as under:

“36. Though there is apparent conflict in the observations made in some of the aforementioned judgments, the broad principles which should govern disposal of an application for impleadment are:

1. The Court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impl