1 Reportable

       IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3587   OF 2019 (Arising out of Special Leave Petition (Civil) No.3490 of 2019)

          Shailndra Kumar Jain and others          …Appellants

VERSUS

Maya Prakash Jain and others       …Respondents

J U D G M E N T

Uday Umesh Lalit, J.

1. Leave granted.

2. This  appeal  challenges  the  correctness  of  the  decision  dated

19.07.2018 passed by the High Court of Judicature of Allahabad  in Civil

Revision No.156 of 2016.

3. One Vinay Prakash Jain filed Suit No.92 of 1966 (“1966 Suit”, for

short) in the Court of Sub-Judge, First Class, Delhi seeking declaration that

certain properties had fallen to his share after a partition between his father

Amba Prasad, his mother Smt. Devi Jain and three brothers, all of whom were

arrayed  as  Defendant  Nos.1  to  5.   In  the  suit  four  sisters,  including Smt

Srikanta Jain were also arrayed as Defendant Nos.6 to 9.  

                                     2

4. An order was passed by the trial court on 23.02.1966 in 1966 Suit

recording a compromise amongst the parties pursuant to which the suit was

decreed.  Relevant portion of the order was as under:

“The  plaintiff  has  prayed  that  a  declaration  be made that he is the owner of the properties in the plaint of the suit (illegible).  The said properties had fallen in his  share  in  (illegible)  between  the  plaintiff  and defendant  Nos.1  to  5.   The  defendants  have  today through their counsel Shri Vijay Kishan, Advocate filed written statement admitting the claim of the plaintiff. The  counsel  for  the  defendants  has  also  made  a statement in the Court that decree be passed as prayed for.

In the result, I pass a decree for declaration to the effect that the plaintiff is the owner and in possession of the properties mentioned in clause (a) of para No.11 of the plaint.  The parties be bear their own costs of the suit.

Pronounced.”

5.  Defendant No.5 in 1966 Suit i.e. Maya Prakash thereafter filed Suit

No.464  of  2006  in  the  Court  of  Civil  Judge  (Senior  Division),  Meerut,

submitting inter alia that after the aforesaid decree dated 23.02.1966, there

was a  further  family settlement  arrived at  between all  sons of  said Amba

Prasad  Jain  on  05.11.2005  regarding  division  of  house  and  other  joint

properties.  This settlement was said to have been arrived at in the presence of

Smt.  Chandrakanta  Jain,  Shri  D.P.  Jain,  Smt.  Padamkanta  Jain  and  Shri

                                     3 Akhilesh Jain.  It was claimed that the parties were bound by said settlement

dated 05.11.2005 and that in pursuance thereof said Maya Prakash Jain was

exclusive owner of certain properties mentioned in the schedule to the plaint

in said suit of 2006.

6.  An application Ex.92 Ka was preferred by original Defendant No.8 in

1966 Suit i.e. Srikanta Jain seeking her impleadment as one of the defendants

in aforesaid Suit No.464 of 2006.  It was submitted that after the death of her

parents i.e. Amba Prasad Jain, and Smt. Devi Jain, the applicant was entitled

to the property which was left behind by the parents and the applicant being a

necessary party she ought to be impleaded as one of the defendants in Suit

No.464 of 2006.  During the pendency of the application, Smt. Srikanta Jain

expired and the appellants, i.e. her legal heirs were substituted in her place.

7.   The  application  was  dismissed  by  the  trial  court  vide  order  dated

10.03.2016.   It  was  observed  that  the  applicant  Smt.  Srikanta  Jain  had

knowledge of 1966 Suit but no steps were taken to appeal against the decree

passed on the basis of oral family partition between her parents and brothers

and as such her application was required to be dismissed.

8.  The appellants being aggrieved, preferred Civil Revision No.156 of

2016 in the High Court, which revision was dismissed by the High Court vide

order dated 19.07.2018.  It was observed as under:

                                     4 “Since,  as  noticed  above,  the  suit  where  from this  revision arises basically seeks implementation of an earlier decree in Suit No.92 of 1966, which determined the shares of the parties thereto, upon acceptance of an alleged oral partition between them, and since admittedly the parties to the suit are only those whose  shares  are  to  be  separated,  the  Court  below  has committed  no  illegality  in  rejecting  the  impleadment application,  on  a  finding  that  revisionist  are  not  necessary parties In the proceedings.”

9. We heard Shri D.K. Garg,  learned Advocate for the appellants and

Shri Jitender Mohan Sharma, learned Senior Advocate for the respondents.

10.  The earlier suit was filed by a son against his parents, three brothers

and four sisters.  In terms of compromise entered into between the Plaintiff,

the parents and three brothers, the properties were mutually divided amongst

said six persons.  Since Amba Prasad Jain and Smt. Devi Jain were alive, the

proper parties in an action seeking relief of partition of joint family estate,

going by the then prevailing principles of Hindu Law, were only the husband,

wife and their sons.  The daughters in the family, namely, Defendant Nos.6 to

9 could not, as a matter of right, claim any share if the joint family properties

were to be partitioned.  However, it is well settled1 that if a partition takes

place between her husband and sons, a wife is entitled (except in Southern

India) to receive a share equal to that of a son and enjoy that share separately

1 See: Lakshmi Chand Khajuria and Ors vs.  Ishroo Devi – (1977) 2 SCC 501 para 14

                                     5 even  from her  husband2.   Therefore,  if  the  compromise  was  entered  into

between the Plaintiff and Defendant Nos.1 to 5, there was nothing improper

about it.  In the circumstances, the absence of any challenge to the decree in

1966 Suit  was irrelevant.   As a  matter  of  fact,  the applicant  Srikanta  Jain

could not have challenged the decree in 1966 Suit.

11. On the death  of  the father  and mother,  if  they died  intestate,  then

under the principles of the Hindu Succession Act, every Class I heir including

the daughters, would be entitled to a share in the property left behind by their

parents.  It is precisely on this count that the applicant Srikanta Jain claims to

be entitled to have a share in the properties which were allocated to Amba

Prasad Jain and Smt. Devi Jain.  The partition effected pursuant to decree in

1966 Suit  cannot,  in  any way,  disentitle  her  from claiming a  share  in  the

properties of her father and mother.  In the aforesaid premises, Srikanta Jain

was definitely a necessary and proper party to be impleaded in the subsequent

suit which was filed by Maya Prakash Jain.   

12. It was, however, contended by Mr. Jitender Mohan Sharma, learned

Senior  Advocate  appearing  for  Respondent  No.1  that  the  father  and  the

mother, namely, Amba Prasad Jain and Smt. Devi Jain had left behind Wills

under which their properties had devolved upon the sons exclusively.  The due

2 Mulla on Hindu Law – 22nd Edition Page 496

                                     6 execution of the Wills is yet to the proved by the Respondents.  If the Wills

are not proved, the daughters would be entitled to a share in the properties,

being Class-I  heirs.   The daughters  are,  therefore,  necessary parties to the

proceedings.  In the present case, if the Wills so propounded are proved, they

will chart a course of succession other than the normal mode of succession

and to the prejudice of the daughters.   In such an action or proceeding, the

daughters being Class I heirs are necessary and proper parties and are required

to be impleaded.  

13. Thus,  considering  the  matter  from  any  perspective,  the  applicant

Srikanta  Jain  was  a  necessary  and  proper  party.   Her  application  to  be

impleaded as one of the defendants in the suit, was erroneously rejected by

the courts below.  We, therefore, allow this appeal, set aside the order passed

by the courts below, and allow the application Ext.92 Ka filed under Order 1

Rule 10 CPC preferred by the applicant Srikanta Jain in Suit No.464 of 2006.

No costs.

………..…..……..……J.                                                                                          (Uday Umesh Lalit)

                                                            ..………….……………J.                            (Indu Malhotra)

New Delhi;  April 09, 2019.