JUDGMENT
Pradeep Nandrajog, J.
1. Applicants Satish Chand Gupta, Kishan Chand Gupta and Avinash Gupta, all sons of late Sh. Prem Chand have filed the present application under Order 1 Rule 10 C.P.C. praying for being imp leaded as defendants in the suit above captioned.
2. Suit is for partition, rendition of accounts and perpetual injunction.
3. Plaintiff as well as defendants No.1 to 3 in the suit as also the applicants claim to be related to late Lala Prem Chand. It is the admitted case of the parties that late Lala Prem Chand had two wives namely, Raj Dulari Devi and Satya Devi. Applicants are the sons born out of the wedlock of Lala Prem Chand with his second wife Satya Devi. Plaintiff, Mira Gupta is the second wife of Subhash Chand, son of late Lala Prem Chand born from his first wife Raj Dulari Devi. Defendant No.1 is the other son orn from Raj Dulari Devi to Lala Prem Chand. Defendant No.2 is the wife of defendant No.1. Defendant No.3 is the adopted daughter of late Subhash Chand.
4. Pedigree affronted has been admitted by the plaintiff in the suit and not denied by defendants No.1 to 4. Properties, in respect of which partition has been sought are 1607-08, Dariba Kalan, Delhi; and C-7, Geetanjali, New Delhi. It is stated in the plaint that properties at Dariba Kalan and Geetanjali belonged to Dinesh Chand and late Sh. Subhash Chand, each having half share. Reference in the plaint is also made to a property at Chhota Bazar, Kashmere Gate, Delhi, stated to be sold by Subhash Chand and Dinesh Chand sometimes before the death of Subhash Chand. Plaintiff, being the wife of late Sh. Subhash Chand accordingly, claims 1/4th share in the two suit properties. As per written statement filed by defendants No.1 and 2, it is stated that the property at Dariba Kalan is a subject matter of dispute in another suit. Qua property at Geetanjali, no dispute has been raised.
5. In the Written statement filed by defendant No.3, it is stated that property No.C-7, Geetanjali was owned by Subhash Chand Gupta and his brother Dinesh Chand by and under a will dated 13.12.1973 executed by their grand-mother, Smt. Nirmala Devi. It is stated that Subhash Chand Gupta executed a Will on 16.9.1988. As per the said Will, certain part of the estate was bequeathed to a trust and the rest was bequeathed to defendant No.3.
6. Pleadings of the plaintiff and defendants would reveal that they are not joining issues with each other as far as ownership of property No.C-7, Geetanjali was concerned. Parties are ad idem that late Subhash Chand and defendant No.1 have half share each. Qua the property at Dariban Kalan, defendants No.1 and 2 have stated that the property is under dispute.
7. Qua the property at Dariba Kalan, defendants No.1 and 2 plead that it is ancestral property of defendant No.1 and late Sh. Subhash Chand. It is stated that applicants would have an interest in the said property being the sons born to Prem Chand from his second wife Smt. Satyawati.
8. The question of impleadment of a party to a suit has to be decided on the touchstone of Rule 10 of Order 1, which provides that a necessary or a proper party may be imp leaded as a party in an existing suit. Who would be a necessary party? The answer is simple. Any person whose right, title or interest is likely to be affected as a result of decision in the suit would be a necessary party for the reason that every person whose rights are affected is entitled to be heard. A caveat! Mere interest o a party in the fruits of litigation should not be applied as a test to determine impleadment.
9. Another guiding factor. Addition of party should not change the scope or character of the suit. Party claiming a right to be imp leaded has no right to litigate its independent claim unconnected with the dispute in the suit.
10. In a suit for partition by members of one branch, heads of other branches are indeed necessary parties. In a suit for partition, all persons interested in the property i.e. persons whose share would be determined at a partition are necessary parties.
11. Considering the admitted pedigree of the family, defense taken by defendants No.1 and 2 and in particular their pleadings in para 9 of the written statement wherein it is averred:-
”As regards property No.1607-08, Dariban Kalan, Delhi is concerned, the same is an ancestral property of defendant No.1 and late Sh. Subhash Chand. The said property was not partitioned. It is submitted that late Sh. Pyare Lal, grandfather of defendant No.1 married twice. From the first wife he had one son, late Sh. Prem Chand. Late Sh. Prem Chand also married twice. From the first wife, he had two sons, defendant No.1 and late Sh. Subhash Chand. From the second wife, Smt. Satyawati, late Sh. Prem Chand had 3 sons, namely, Sh. Satish Chand, Sh. Kiran Chand and Sh. Avinash Chand. Sh. Prem Chand died on 11.12.1983. During his lifetime, he had filed a suit for partition against the answering defendants and also against late Sh. Subhash Chand……….. The said suit being suit No.305/1979 was dismissed for default on 16th March, 1991.”
applicants would be a necessary party to the present suit.
12. IA No.6538/2003 is accordingly allowed. Applicants are imp leaded as defendants No.5, 6 and 7. Amended memo of parties be filed within a week.