A necessary party has a right to be added at any stage of the proceedings, and a partition suit with a preliminary decree is still a pending suit.

DEVAN RAMACHANDRAN, J.

1. The petitioners wanted to implead themselves as additional defendants in a suit for partition that is instituted by the plaintiffs. The essential allegation of the petitioners is that the property that is sought to be partitioned among the plaintiffs and the defendants do not belong to them but to the petitioners. They assert that even though the original plaintiffs and defendants have been able to obtain a decree of partition allegedly by collusion, the properties that are involved in the suit are, in fact, belonging to the petitioners and not to the plaintiffs or the defendants and they, therefore claim that the properties ought not to have been included in the suit for partition.

2. To establish the claim over the properties involved in the suit, the petitioners filed two I.As, one to implead themselves in the suit and the other to re-open the preliminary decree. The court below considered the application for impleadment and held that it is unnecessary and that the petitioners cannot have a locus to get themselves impleaded in the suit that has been filed by the plaintiffs for partition. It is noticed that the petitioner cannot have a claim to be impleaded as a sharer in the suit so as to claim a share in the preliminary decree as sharer of the property. This is of course without doubt. However, what has been contended by the petitioners is not that they are entitled to a share in the property but that the plaintiffs and defendants have included their property fraudulently in the plaint schedule, even though they are not entitled to the same. In effect, the contention of the petitioners is that they are the owners of the property and that the plaintiffs or the defendants cannot claim any share or right over the same.

3. In a technical way of looking, the court below was perhaps right in holding that the application under Order 1 Rule 10(2) filed by the petitioners to implead themselves in the list was unnecessary and without locus. However, what the court below did not see was that the contention of the petitioners is not that they are sharers but that they are the owners of the property and that the said property has been included among the plaint schedules fraudulently. In a sence, therefore, what they are claiming is not as sharers of the property but exclusion of the property from partition, which they say has been managed by collusion and fraud by plaintiffs and defendants.

4. Since, the issue that arises in this Original Petition relate to the ownership of the property, which the petitioners claim exclusively as theirs and which the plaintiffs and defendants claim, on the other hand, to be available for partition among them, it will have to be adjudicated by the court before passing a final decree. The preliminary decree that has been passed by the court below has proceeded on the assumption that the property belongs to the plaintiffs or the defendants in some certain shares. However, the court had never an opportunity to consider the case of the petitioners in this Original Petition that the property does not belong to the plaintiffs or the defendants but to them exclusively. In such view of the matter, the petitioners are necessary parties and they would then, therefore, obtain a right to be added as a party at any stage of the proceedings so as to ensure that a fraudulent final decree is not obtained. I am fortified in my view, but the judgment of this Court in Ammini Ammal vs. Krishnan and Others, 1978 KLT 80, wherein this court has already declared the law unambiguously that a person who is a necessary party has a right to be added as a party at any stage of the proceedings. This Court also declared that the proceedings do not come to an end until the final decree is passed. Even though a preliminary decree is a final decision and operate as resjudicata, however, a partition suit in which a preliminary decree has been passed is still a pending suit.

5. I am concerned more about the