J U D G M E N T

This Original Petition has been filed under Article 227 of the Constitution of India challenging Exts.P9 and P12 orders passed by the execution court (Sub Judge, Kasaragod). The petitioner herein is the mother of 1st and 2nd respondents, who are the plaintiff and defendant respectively in O.S.326/2010. The plaintiff in the above Suit claimed right over the plaint schedule property originally belonged to her grandmother Madhavi Amma on the strength of a Will executed by Madhavi Amma in favour of plaintiff in respect of plaint A schedule item. Plaint B schedule item, as per the said Will, was allotted to the share of the defendant. Based on the Will, the plaintiff sought the relief of fixation of boundary of A and B schedule property.

2. The Suit was proceeded and evidence also completed.

At this juncture, the petitioner herein, who is the mother of the plaintiff and the defendant, filed I.A.No.4 of 2021 and sought for impleadment in the above Suit as 2nd defendant as provided under Order 1 Rule 10(2) of C.P.C. According to the petitioner, Madhavi Amma availed loan from a Co-operative Bank and the liability was discharged by the petitioner. Thereafter, as part of family settlement she had assigned the plaint schedule properties to the defendant in the Suit as per assignment deed No.1419/2009. Therefore, she has the right to challenge the Will and accordingly she is a necessary party to the Suit.

3. The plaintiff filed counter resisting the contention and stating that, at present the petitioner herein had no manner of right over the plaint schedule property.

4. The learned counsel for the petitioner argued at length to convince that the petitioner is a necessary party in the suit. At the same time, he conceded that if the Will is proved to be genuine, the petitioner would not get any right over the plaint schedule property. He also conceded that, if at all any right is vested with the petitioner, the same also assigned as per assignment deed No.1419/2009.

5. The learned Munsiff considered the rival contentions and found that the petitioner has no manner of right over the plaint schedule property at present. Therefore, the petition filed by the petitioner to implead herself as 2nd defendant was dismissed.

6. Coming to the core issue herein, it could be gathered that it is the duty of the propounder of the Will to prove the Will so as to establish right over the plaint A schedule property. Plaintiff obtained A schedule on the strength of a Will. The defendant also obtained B schedule property on the strength of the same Will. Ignoring the Will, being the legal heir of Madhavi Amma, the plaintiff had executed assignment deed in favour of defendant. If the Will is proved, the assignment deed has no significance. It is the settled law that the execution of the Will must be proved by the propounder. The defendant, who contested the Suit after getting the entire property assigned by the petitioner, resisted the contention and evidence in this case is almost complete.

7. Thus the crucial question emerges is; whether the petitioner is a necessary party or a proper party in this case.

8. While drawing the distinction between a necessary party and a proper party, a four Judges' Bench of the Apex Court in [AIR 1963 SC 786] Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar & anr. held that a necessary party is one without whom no order can be made effectively and a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding.

9. In a three Judges' Bench decision reported in [AIR

1958 SC 886] Razia Begum v. Sahebzadi Anwar Begum & Ors. wherein taking note of the decision of Lindley LJ in [1892 (1) Ch.487] Moser v. Marsden, it was held that a party who is not directly interested in the issues between the plaintiff and the defendant, but is only indirectly or commercially affected, cannot be added as a