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Judgment
Das, J.—This appeal is directed against a preliminary decree in an action for partition. The only question which has been argued before us is, that the plaintiff did not cite as parties to the action certain persons who would be entitled to a share on partition.
Now the plaintiffs are the sons of defendant No. 1, and defendant No. 2 is also a son of defendant No. 1. It is argued before us that the plaintiffs should have brought on the record their sons and the sons of defendant No. 2. The learned Subordinate Judge has taken the view that grandsons are not entitled to claim partition as against the grandfather. I am not prepared to uphold the view of the learned Subordinate Judge in this respect. No doubt a Full Bench of the Bombay High Court in the case of Apaji Narhar Kulkarni v. Ram Chandra Ravji Kulkarni (1891) 16 Bom. 29, took the view that it is not open to a grandson to maintain an action for partition against a grandfather, but all the other High Courts have dissented from that view, see Jogul Kishore v. Shib Sahai (1883) 5 All 430=1883 A. W. N. 102 (F. B.). Rameshwar Proshad Singh Vs. Lachmi Prosad Singh, , and Subba Ayyar v. Ganesa Ayyar Subba Ayyar v. Ganesa Ayyar (1895) 18 Mad. 179.
In my opinion, it was open to the grand-sons to claim partition as against the-defendant No. 1. But the question in the present action is somewhat different, namely, whether these grandsons were necessary parties in an action for partition. In my opinion, the distinction between a proper party and a necessary party is not always recognised. It may be that the grandsons were proper parties in the present action, but I am not prepared to admit that they were necessary parties. They were fully represented in the action by their father and there is no prejudice to their interest by the decree which has been pronounced by the learned Subordinate Judge.
But the learned Vakil on behalf of the appellant makes a grievance, and I think that the best course to adopt in this matter would be to bring the grand sons the record as parties to the suit The learned Vakil for the plaintiffs undertakes to present an application to the Court below for the purpose of bringing the sons of the plaintiffs and the sons of defendant No. 2 on the record as party defendants. The names of these added parties will be mentioned in the decree and the Commissioner will proceed to make the partition in accordance with the decision of the learned Subordinate Judge. If however, the added defendants-wish to have shares allotted to them they must apply to the Court for that purpose, and in that case the learned Subordinate Judge will give the necessary directions to the Commissioner.
Subject to this variation, this appeal will stand dismissed, but without costs.
Adami, J.
I agree.