Stranger cannot be impleaded as party to partition suit under order 1, rule 10(2).

This revision petition is against the order of the learned Subordinate Judge of Madurai, dismissing the application which the petitioner herein filed for impleading himself as a supplemental defendant in a partition suit, Original Suit No. 51 of 1963. Respondents 1 and 2 herein are plaintiffs in the said suit while the third respondent, M. K. Sundararama Iyer, is the first defendant against whom partition was claimed. The petitioner’s case in support of his application was that the first defendant M. K. Sundararama Iyer, had entered into a written agreement of sale, dated 6th September, 1962 with the petitioner, agreeing to convey a house in Madurai Town (one of the items involved in the suit for partition) for a sum of Rs. 29.000 and in pursuance of the agreement a sum of Rs. 9,000 had been paid by the petitioner to Sundararama Iyer aforesaid who had agreed to convey the property and execute the registered deed of sale within three months from the date of the agreement of sale. The petitioner’s case was that the agreement of sale was entered into by Sundararama Iyer aforesaid making the express representation, both oral and under the express terms of the agreement of sale, that the property agreed to be conveyed is his own self-acquired property. As the plaintiffs in the partition suit are claiming the property as joint family property and as the petitioner apprehends collusion between the plaintiffs and the first defendant he sought to be impleaded as a party to prevent any collusion and also to bring to the notice of the Sub-Court his rights under the agreement of sale, so that in equity the property agreed to be sold, may if possible be allotted to the share of the first defendant. The plaintiffs alone filed an objection statement, opposing the application ; the first defendant did not file any objection statement denying the allegations made by the petitioner concerning the written agreement of sale. The learned Subordinate Judge dismissed the application taking the view that the agreement of sale did not clothe the petitioner with any legal or equitable right and that the remedy of the petitioner is only to file a suit for specific performance, and that the same should be done in an independent suit and no relief could be granted to him in the partition suit. Hence the present revision petition by the petitioner.

I have no doubt that the Order of the learned Subordinate Judge is clearly wrong and cannot be sustained. I am of the view that this is a case in which the petitioner ought to have been impleaded as a supplemental defendant by the Court exercising its powers under Order 1, rule 10(2) of the Civil Procedure Code. Before I proceed further it is necessary to set out the relevant provision, Order 1, rule 10(2), Civil Procedure Code:

“The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order, that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.”

It is not claimed that the petitioner is a person who ought to have been joined as a necessary party to the suit, and the only question is whether he could be impleaded as a party whose presence before the Court may be necessary in order to enable the Court to effectually and completely adjudicate upon and settle the questions involved in the suit.

Learned Counsel on both sides relied upon some of the decisions which have considered the ambit of the power of the Court in impleading a person as a proper party to the suit and explained the proper meaning of the words all the questions involved in the suit. The decisions illustrate a variety of in