1983 Supreme(MP) 250

K. N. Shukla, J.
Patel Babulal v. Smt. Dhannabai
C. R. No. 52 of 1978 (J); Decided on 6-8-1983.

Headnote:Civil P. C., 1908 -- O. 1, 10(2) -- suit for partition -- property alleged to be in fictitious name of trust and deity -- deity is not necessary.

        This revision by the plaintiffs is directed against the order dated 30-11-1977 passed by the Civil Judge. Class I, Narsimhapur, holding that the deity Shri Ramchandraji Dev, was a necessary party to the suit and without adding it, the suit will not be competent.

        The plaintiffs, who are petitioners here, filed a suit in the year 1965 for partition of the agricultural lands and houses. It was alleged that their father Sardarsingh and respondent No. 1--Tejbatisingh were real brothers and the property was inherited by them from their father Laxmansirgh. Both had half share each in the said property and the same was liable to be partitioned by metes and bounds. It was also pleaded that to save the lands from being recorded in the names of lessees in accordance with the provisions of the then Tenancy Act, some of the lands were purchased in the same of the private diety Shri Ramchandraji Dev. In fact, these were fictitious in the name of Shri Ramchandraji Dev and actually the property was owned and enjoyed by Sardarsingh father of the plaintiffs and Tejbalisingh, defendantd`respondent no. 1.

        Held : I find that the Court below committed material irregularity in holding that the diety was a necessary party and directing that it be added in the suit. Plaint allegations clearly indicate that the property in the name of the diety was actually Benami and the so called trust was fictitious. The Court had already framed an issue on this point. In these circumstances, it was not necessary to join the diety as a party to the suit. Significantly, respondent No. 1. Tejbalisingh claimed to be the Sarvarahkar on behalf of the diety. He was already a party to rebut the allegations made in the plaint and he actually did rebut the allegations regarding the property recorded in the name of the diety. Impleading the diety, therefore, was unnecessary. The diety was not even a proper party.

        Order 1, Rule 10 (2) of the Code of Civil procedure Provides that the Court may order that the name of any person who ought to have been joined, or whose presence before the Court necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. In the instant case I find that the facts do not warrant joinder of the diety. As already observed, the plaintiffs case bad been that the property in the name of the diety was under a fictitious trust and their father Sardarsingh being the Karta of the joint Hindu family during his life, acted as Sarvarahkar. In fact the property belonged to the family itself and this was only a device to save the property from being recorded in the names of the lessees cultivating it. This being the real issue between the parties, the Court should have decided it particularly when defendant No. 1. Tejbalisingh, said to be the Savarahkar on behalf of the deity, was a party to the suit and was in a position to rebut the plaint allegations. Revision allowed.