P.K. Misra, J.@mdashThe plaintiffs have filed the present appeals against the common order in Appln. Nos. 237 of 2002, 238 of 2002, 1364 of
2002 and 3954 of 2002 in C.S. No. 450 of 1999 dated 23.2.2004. The appellants filed the aforesaid suit for partition and for appointment of
Receiver to take possession of the suit properties and business and for directing the first defendant to give accounts of 3 family businesses
described in ''B'' schedule as well as 3 house properties indicated in ''A'' schedule of the plaint.
2. During pendency of such suit, the appellants filed Appln. No. 237 of 2002 for impleading one Mrs. S. Devisri, the wife of 4th defendant. On the
same day, they filed Appln. No. 238 of 2002 for amendment of the plaint schedule. For the purpose of this appeal, it is only necessary to state that
the plaintiffs, as stated in third paragraph of the detailed amendment, sought to include a property purchased in the name of S. Devisri, the wife of
4th defendant, after filing of the suit. They also filed Appln. No. 1364 of 2002 praying for impleading S. Devisri as Respondent No. 6 in Appln.
No. 238 of 2002. They filed another Appln. No. 3954 of 2003 for amendment of Appln. No. 238 of 2002 by addition of certain paragraphs as
11A and 11B in Judge''s Summons in Appln. No. 238 of 2002.
3. Notice in the applications had been issued to S. Devisri. She had filed a counter in Appln. No. 237 of 2002 contending that she is not a
necessary party to the suit. In a separate counter affidavit filed in Appln. No. 3954 of 2003, she had contended that the property sought to be
included by way of amendment has been purchased by her father after filing of the suit and such application should be rejected. A similar counter
affidavit has been filed by her in Appln. No. 1364 of 2002.
4. A reply affidavit was filed by the plaintiffs in Appln. No. 237 of 2002.
5. Learned single Judge while partly allowing Appln. No. 238 of 2002 by permitting amendment relating to item No. 3 of ''A'' schedule property,
rejected other amendment as well as other Applications, namely. Appln. No. 237 of 2002. which had been tiled for impleading S. Devisri as a
defendant in the suit. Appln. No. 1364 of 2002 and Appln. No. 3954 of 2003 and also rejected a portion of the amendment sought for in Appln.
No. 238 of 2002.
6. O.S.A. No. 102 of 2005 has been filed against the order of rejection of Appln. No. 237 of 2002. O.S.A. No. 103 of 2005 has been filed
against the rejection of Appln. No. 1364 ot""2002. O.S.A. No. 104 of 2005 has been filed against the rejection of Appln. No. 3954 of 2003 and
O.S.A. No. 105 of 2005 has been filed against the part of the order partly rejecting Appln. No. 238 of 2002. so far as it related to inclusion of
property purchased in the name of Mrs. Devisri.
7. All the appeals have been heard together and shall be disposed of by this common judgment.
8. Learned counsel appearing for the respondents have raised the question of maintainability of the appeals by contending that the order refusing to
implead a particular party or the order refusing to amend the plaint cannot be considered as a ''judgment'' within the meaning of clause 15 of the
Letters Patent, and. therefore, the appeals are not maintainable. On merits, it is contended that admittedly the property was purchased after filing of
the suit for partition and even assuming that such property had been purchased by the erstwhile Kartha of the joint family even by utilising the funds
available to him as Kartha before filing of the suit, such property cannot be considered as a joint family property or as an acquisition from joint
family nucleus, as filing of the suit for partition itself amounted to severance of joint family status and. therefore, any property purchased by the
erstwhile Kartha after such suit, cannot be considered as a joint family property.
9. This last contention of the contesting respondents had been accepted by the learned single Judge by relying upon a decision of the Supreme
Court reported in M.N. Aryamurthy and Another Vs. M.D. Subbaraya Setty (Dead) through L. R. and Others,
10. Learned counsel appearing for the proposed Defendant No. 6 in the suit while supporting the orders has also in addition, submitted that the
contentions raised by the plaintiffs/appellants cannot be countenanced in view of the provisions contained in the Benami Transactions (Prohibition)
Act. 1988.
11. The main question is whether the application for impleading S. Devisri as a defendant in the suit should have been allowed or not. However,
such a question can be decided in the present appeals only if it is found that the order refusing to implead such a party as a defendant is a
''judgment'' within the meaning of Clause 15 of the Letters Patent.
12. Learned counsel appearing for the contesting defendants and the proposed defendant have placed reliance upon the decision of the Madras
High Court reported in 1993 (1) L.W 127 (A.S. Munavuh Chettiar v. T. V. Selvarajan & 6 others). In the said decision, the Division Bench held
that an order impleading a new party and the consequential amendment prayed will be purely-procedural and interlocutory and does not in either
manner decide the right of the parties or determine the proceedings finally, in so far as the court is concerned, and therefore, it cannot be said that
such order is a ''judgment'' within the meaning of Clause 15 of the Letters Patent.
13. The aforesaid view of the Division Bench was based on the earlier Division Bench decision of this Court reported in 60 MLJ 237= 32 LAV.
766 (Ramaswami Cheiliar v. Kunniappa Mudaliar), which was again followed by another Division Bench decision reported in R.N. Selvam
Mudaliar and Others Vs. P.A. Raju Mudaliar and Another, However, a discordant note seems to have been expressed in 1993 1 L.W. 177
(Lingam, B.C., (died) & 7 others, v. Mrs. Statesenko Larissa & 2 others), wherein another Division Bench by placing reliance upon the decision
of the Delhi High Court in AIR 1990 Del 130 (Gurmauj Saran v. Joyce C. Salim) has expressed some doubt regarding correctness of the decision
and observed that certain aspects of law require consideration.
14. In our opinion, if the learned single Judge simply rejects an application for impletion of a defendant and thereafter refuses to amend the plaint
by inclusion of a property of such proposed defendant without expressing any final opinion in the matter and only on a prima facie view, such order
may not be a ''judgment'' within the meaning of clause 15 of the Letters Patent as rights of the parties are not finally decided and the applications
are rejected merely on the basis of prima facie expression of some opinion.
15. However, since in the present case, the learned single Judge while rejecting the application for impletion of a defendant and inclusion of the
property purchased in the name of such proposed defendant has practically purported to decide the rights of the parties by making a final
observation, it would not be proper to hold that such order of the learned single Judge would not come within the meaning of the ''judgment''.
16. In the peculiar facts of the present case, in view of the categorical observation made by the learned single Judge on the particular aspect, in our
opinion, the order can be taken to be a ''judgment'' within the meaning of clause 15 of the Letters Patent. Therefore, the appeals can be held to be
maintainable in the peculiar facts and circumstances.
17. Next comes the question relating to validity of the order. In our opinion, the question as to whether a party should be impleaded as a defendant
under Order I Rule 10 is not an order which goes to the jurisdiction of the Court. If a discretion is exercised, normally the appellate court should
be slow to interfere with such discretionary only. In the present case, the addition of a party and the consequential addition of a property, which in
its wake would require delving into many matters which are not essential or necessary for deciding the main dispute in the suit, can be left out of the
present proceedings, leaving it open to the plaintiffs, if so advised, to file a fresh suit to establish their alleged right in the property purchased in the
name of the defendant sought to be added. Since it was not necessary for the learned single Judge to finally decide about the matter in a
proceedings under Order I Rule 10 or in an application under Order VI Rule 17. we can only observe that the observation made by the learned
single Judge may not be construed as a final observation in the matter and such matter is left open to be decided if at all and when a suit is filed by
the plaintiffs for establishing their alleged right in such property purchased in the name of the party sought to be impleaded.
18. In view of the aforesaid opinion expressed by us. we do not feel it necessary to consider whether the views expressed in M.N. Aryamurthy
and Another Vs. M.D. Subbaraya Setty (Dead) through L. R. and Others, have been modified to any extent in the subsequent decision of the
Supreme Court reported in Bhagwant P. Sulakhe Vs. Digambar Gopal Sulakhe and Others,
19. For the aforesaid reasons, we dispose of the appeals by upholding the order of the learned single Judge rejecting the applications for
impleading Mrs. S. Devisri as a defendant in the suit and by rejecting the connected applications for amendment or amendment of other connected
application with a further observation that the order passed by the learned single Judge should not be taken to be any final opinion expressed on
the point and such question relating to any alleged right of the plaintiffs in the property purchased by or in the name of the party sought to be
impleaded as a defendant can be considered at the appropriate stage, if at all any such fresh suit is filed by the appellants. We make it clear that we
have not expressed any opinion on that aspect. Subject to the aforesaid observations, all the appeals are disposed of. No costs.
