IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 28TH JULY 2011 / 6TH SRAVANA 1933 SA.No. 6 of 1998(A) ------------------- AS.224/1994 of SUB COURT, PALA OS.447/1990 of MUNSIFF COURT, PALA .................... APPELLANT(S)/1ST RESPONDENT/1ST DEFENDANT: ------------------------------------------------------------------------ THANKAPPAN NAIR @ DIVAKARAN NAIR, S/O. KRISHNAN NAIR, KARANKAL HOUSE, MOOZHIKADU BHAGOM, PANAMTTOM KARA, ELIKKULAM VILLAGE, P.O., VANCHIMALA, KOTTAYAM DISTRICT. (DIED. ADDL.2ND APPELLANT IMPLEADED) ADDL.2ND APPELLANT. SMITHA CHANDRAN, D/O. C.P. CHANDRAN, CHOTTANICKAL HOUSE, PALA P.O., MEENACHIL VILLAGE AND MEENACHIL TALUK, KOTTAYAM DISTRICT. LEGAL HEIR OF THE ORIGINAL APPELLANT HAS BEEN IMPLEADED AS ADDL. 2ND APPELLANT AS PER ORDER DATED 10.8.2004 IN I.A. 1162/04. BY ADV. SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN RESPONDENT(S)/APPELLANTS 1 & 2 & RESPONDENTS 2 TO 6/ PLAINTIFFS 1 & 2 & DEFENDANTS 2 TO 6 : ---------------------------------------------------------------------------------------- 1. KALLIANI AMMA, D/O. LAKSHMI AMMA, KARANKAL HOUSE, PALA KARA, MEENACHIL VILLAGE, P.O. PALA, KOTTAYAM DISTRICT. (DIED. LRS IMPLEADED) 2. BALAKRISHNAN NAIR, S/O. PARAMESWARAN NAIR, KARANKAL HOUSE, PALA KARA, MEENACHIL VILLAGE, P.O. PALA, KOTTAYAM DISTRICT. (DIED. LRS IMPLEADED) 3. JANAKY AMMA, W/O. KESAVAN NAIR, KARANAKAL HOUSE, KADAPPATTUR KARA, MEENACHIL VILLAGE, P.O. PALA, KOTTAYAM DISTRICT. 4. NANI AMMA, W/O. BHASKARAN NAIR, PUTTUMADATHIL, KADAPPATTUR KARA, MEENACHIL VILLAGE, P.O. PALA, KOTTAYAM DISTRICT. 5. GOVINDAN NAIR, S/O. RAMAN NAIR, KARANKAL HOUSE, MEENACHIL KARA & VILLAGE, P.O. PALA, KOTTAYAM DIST. (DIED. LRS IMPLEADED) 6. KRISHNAN NAIR, S/O. RAMAN NAIR, THAIGANNOOR PUTHUSSERRIYIL, MARIDOM KARA, KIDANGOOR VILLAGE, P.O. KIDANGOOR, KOTTAYAM DISTRICT. 7. BHAVANI AMMA, W/O. CHELLAPPAN NAIR, KANIYAPPARA BHAGOM, POONJAR THEKKEKARA & VILLAGE, P.O. POONJAR, KOTTAYAM DISTRICT. ADDL. R8. BHAGIRATHI AMMA, W/O. LATE GOVINDAN NAIR, VELLATHOTTATHIL, PALA 686 575, KOTTAYAM DISTRICT. ADDL. R9. SANTHOSH, S/O. LATE GOVINDAN NAIR, KARANKAL HOUSE, P.O. CHEMBILAVU, VIA KIDANGOOR, KOTTAYAM DISTRICT. ADDL. R10. PUSHPAVALLY, D/O. LATE GOVINDAN NAIR, PARAYIL, KONGANDOOR P.O., (VIA) KIDANGOOR, KOTTAYAM DISTRICT. ADDL.R11. SHYAMALA, E/O. LATE GOVINDAN NAIR AND W/O. LATE VIJAYAN, CHENNOT HOUSE, THALANAD P.O. (VIA) 686 580, (VIA) THEEKOYI, KOTTAYAM DISTRICT. ADDL. R12. USHA, D/O. LATE NARAYANAN, KULATHINGAL, ELANGULAM, VIA PONKUNNAM, KOTTAYAM DISTRICT. ADDL. R13. NIRMALA, D/O. LATE NARAYANAN, EDAMANA HOUSE, KANJAR P.O.. IDUKKI DISTRICT. ADDL.R14. LATHIKA, D/O. LATE NARAYANAN NAIR, PARAPPALLI KUNNEL, P.O. POOVAANI 686 577, VIA PALA, KOTTAYAM DISTRICT. ADDL. R15. ANITHA, D/O. LATE NARAYANAN NAIR, VELLATHOTTATHIL HOUSE, PALA P.O., 686 574, KOTTAYAM DISTRICT. ADDL. R16. MAYA, D/O. LATE NARAYANAN NAIR, MARUTHUAMKUDIYIL, P.O. KAKKUR 673 619, (VIA) KOOTHATTUKULAM. ADDL. R17. SHAILAJA, W/O. LATE VIJAYAN & DAUGHTER-IN-LAW OF LATE NARAYANAN NAIR, MANNOOR HOUSE, P.O. VADAVATHOOR 686 010., KOTTAYAM DISTRICT. ADDL. R18. VIJISH, S/O. LATE VIJAYAN, GRANDON OF LATE NARAYANAN NAIR (MINOR), AGED 17 YEARS, DO. DO. ADDL. R19. VIDYA, D/O. LATE VIJAYAN, GRANDSOPN OF LATE NARAYANAN NAIR, (MINOR), AGED 17 YEARS, DO. DO. ADDL. RESPONDENTS 18 & 19 HEREIN REPRESENTED BY MOTHER GUARDIAN SHYAMALA) ADDL.R20. V.P.RAMACHANDRAN NAIR, S/O. KALYANI AMMA, SREE BHAVAN, MATTAPPALLIL HOUSE, P.O. KUTTOOR, THIRUVALLA TALUK 689 106. ADDL.R21. K.P. THANKAMMA, D/O. KALYANI AMMA, MAVARA HOUSE, PANNOOR, THODUPUZHA TALUK 670 692. ADDL. R22. BHARGAVI AMMA, D/O. KALYANI AMMA, KARANGAL VEEDU, THEKKEKARA, 11TH WARD, P.O. PALA 686 575. ADDL. R23. GOMATHY AMMA, W/O. LATE BALAKRISHNAN NAIR @ THANKAPPAN NAIR, PAZHAYANNUR PALLIL VEEDU, KARANGAL VEEDU, THEKKEKKARA (11TH WARD) P.O. PALA 686 575, (L.R. OF DECEASED 2ND RESPONDENT.). ADDL. RESPONDENTS 8 TO 19 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 5TH RESPAONDENT AND ADDITIONAL RESONDENTS 20 TO 22 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 1ST RESPONDENT AND ADDITIONAL RESONDENT 23 IS IMPLEADED AS THE LEGAL REPRESENTATIVE OF THE DECEASED 2ND RESPONDENT AS PER ORDERS DATED 12.11.2003 AND 4.11.2003 IN C.M.P.1672/00 AND I.A. 635/2003 AND I.A.636/2003 RESPECTIVELY. ADV. SRI.T.P.VARGHESE & SRI.PHILIP T.VARGHESE FOR R3, R4, R6 & R7 SRI. N.K.KARNIS & SRI. T.S. ROY ADDL. R9 SRI.PHILIP T.VARGHESE & SRI.THOMAS T.VARGHESE FOR R 20 TO 23 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 6 of 1998 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of July, 2011. JUDGMENT The first defendant in O.S.447 of 1990 before the Munsiff's Court is the appellant. 2. The parties and facts are hereinafter referred to as they are available before the trial court. It appears that during the pendency of the appeal before this court the appellant, first respondent, second respondent and the fifth respondent died and their legal heirs have been brought on the party array. 3. The relationship between the parties is admitted. The property is said to have been originally belonged to one Gouriamma, who is the sister of the first plaintiff who obtained it under a partition deed of 1100 M.E.. Gouriamma had no issues. Therefore her legal heirs are the first plaintiff, first defendant and other defendants, who are S.A.6/1998. 2 the children of late Parvathy Amma. Since the plaintiffs did not wish to continue the joint status, they sought for partition. 4. The first defendant contested the suit. He pointed out that the suit is bad for non-joinder of necessary parties and there are other legal heirs who are liable to be impleaded in the suit. According to him, at the time of the death of Gouriamma, her five brothers and sisters were alive and they were in possession and enjoyment of the property. He speaks about various other transactions which are not very relevant for the present purpose. He also claims that he had obtained purchase certificate in respect of the property and therefore it was not partible. 5. Defendants 2 to 6 supported the plaintiffs and claimed their share. 6. On the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of P.Ws.1 to 3 and documents marked as Ext.A1 from the side of the plaintiffs. Defendants examined D.Ws.1 and 2 and S.A.6/1998. 3 had Exts. B1 to B8 marked. The trial court dismissed the suit on two grounds, i.e., i) that the property was not available for partition, and ii) there was non-joinder of necessary parties. 7. The matter was carried in appeal by the plaintiffs as A.S. 224 of 1994 before the Sub Court, Pala. The lower appellate court allowed the appeal, reversed the finding of the trial court and passed a preliminary decree, which reads as follows: “A. The first plaintiff is entitled to 1/5 share over the plaint schedule property. The first defendant is entitled to 3/5 shares over the plaint schedule property. The defendants 2 to 6 are jointly entitled to 1/5 share over the plaint schedule property. B. A commission will be deputed in the final decree proceedings to effect partition of the properties by metes and bounds. It is open to the parties to file an application for passing a final decree within six months from today, on payment of court fee, if it is already paid. S.A.6/1998. 4 C. The plaintiff and defendants 2 to 6 are entitled to recover their share of mesne profits from the first defendant from the date of suit till recovery of possession of their share through court. The quantum of mesne profit is left open to be decided in the final decree proceedings. D. The first defendant is hereby restrained from cutting and removing the trees standing in plaint schedule property till the filing of the application for passing the final decree. It is open to the plaintiff to move for extension of the injunction after filing the application for passing the final decree. The cost will come out of the estate.” 8. Notice is seen issued on the following questions of law: “1. If the pleading raised by a party is alleged to be vague and ambiguous, and if a party having a right to apply for particulars does not do so in trial court, can such a party complain for want of particulars in the Appellate court, since his failure o apply operates as an estoppel? S.A.6/1998. 5 2. Whether the omission to mention the name of the necessary party in a partition suit in the written statement is fatal to the pleadings? More so, when the plaintiffs are close relatives of such parties omitted? 3. Whether the party is expected to plead evidence in his pleading and is it not sufficient that he need plead only material particulars as enjoined in Order VI of the Code of Civil Procedure? 4. Is it not sufficient to prove adverse possession or ouster, that possession must be open and without any concealment, and should possession be effective so as to bring it to the specific knowledge of a co-owner? 5. Is not sole possession by one co-sharer continuously for a long period, without any claim or demand by any other co-sharers, evidence, from which an actual ouster of other co-sharer/s be presumed? 6. When the plaintiff, in a suit for partition, admits in evidence about the existence of a necessary party, and does not take any steps to implead that necessary party or his or her legal representative, is not such omission fatal to the S.A.6/1998. 6 suit and whether a suit for partition without necessary party is maintainable? 7. Whether the court below is correct in reversing the legal presumption drawn by trial court on the basis of Section 90 of Evidence Act in relation to documents which are more than 30 years old. 8. Whether, in the facts and circumstances of the case, the judgment and decree of lower appellate court is sustainable.” 9. Learned counsel appearing for the appellant pressed only one point for consideration. According to the learned counsel, being a suit for partition, it is absolutely necessary that all sharers are on the party array. The first defendant in his written statement had specifically pointed out that there are other legal heirs who are liable to be joined as parties to the suit and without them the suit is not maintainable. The trial court had found that P.W.1 had infact admitted that there are other legal heirs who are entitled to the property and who have not been impleaded. S.A.6/1998. 7 However, according to learned counsel for the appellant, the lower appellate court did not advert to this aspect in the right perspective and simply came to the conclusion that there was no averment to that effect and therefore it need not be considered. This, according to learned counsel, is not justified. 10. Learned counsel appearing for the respondents on the other hand contended that there was no specific plea in the written statement giving details of the sharers who are not impleaded in the partition suit. There is only a very vague statement regarding the non-joinder of necessary parties. The written statement does not speak about who are the sharers and who are liable to be included in the party array and therefore, according to learned counsel, the lower appellate court was justified in reversing the finding of the trial court and passing the preliminary decree. 11. It is difficult to accept the contention raised by the learned counsel for the respondents. There was a S.A.6/1998. 8 definite statement in the written statement of the first defendant that the suit was bad for non-joinder of necessary parties since all the legal heirs are not made parties to the suit. On the death of Gouriamma, going by the pleadings, the first plaintiff, first defendant and defendants 2 to 6, who are the children of deceased Parvathy Amma, who was the sister of Gouriamma, are the legal heirs. However, when the second plaintiff was examined as P.W.1 he had stated that Parvathy Amma had another daughter by name Karthianiamma, who is no more. P.W.1 also stated that he did not know how many children Karthianiamma had. However, in re-examination P.W.1 stated that her whereabouts were not known to the plaintiffs for last 12 years. It was these statements of P.W.1 which had persuaded the trial court to come to the conclusion that the plaintiffs were aware that there was another person, who was entitled to a share and nothing was stated in the plaint regarding the said sharer. S.A.6/1998. 9 12. The lower appellate court on the other hand had merely gone by the fact that in the written statement it was not specifically mentioned about Karthianiamma and her progeny. In the light of that fact, the plaintiffs were not bound to implead any person. 13. The approach made by the lower appellate court does not appear to be correct. When the second plaintiff while examined as P.W.1 says that Parvathy Amma had another daughter by name Karthianiamma, it is for the plaintiffs to explain as to why either Karthianiamma or her legal heirs were not brought on the party array. It is here one has to notice the evidence of P.W.1. He is definite that Parvathi Amma had a daughter by name Karthianiamma. The lower appellate court feels that since D.W.1 had not stated anything about either Karthianiamma or her children, that issue does not arise for consideration. The lower appellate court also noticed that defendants 2 to 6 who are S.A.6/1998. 10 the children of Parvathi Amma does not speak about Karthianiamma. 14. The grounds relied on by the court below to find against non-joinder do not appear to be proper. When the plaintiffs admit that Parvathi Amma had a daughter by name Karthianiamma, it is for them to explain why she was omitted. P.W.1 had stated that he did not know how many children Karthianiamma had. In re-examination he came forward with a case that her whereabouts are not known for last 12 years. From the evidence of P.W.1 it is not clear whether Karthianiamma is dead or alive. Also if she is married details of her children she had. If Karthianiamma or her children are alive, they are necessary parties to the suit. Merely because defendants 2 to 6 do not speak about Karthianiamma is by itself not a ground to hold that Parvathy Amma did not have a daughter by name Karthianiamma. These facts have to be probed into to find out whether Parvathy Amma had a daughter by name Karthianiamma, and if she is not alive whether left behind S.A.6/1998. 11 any legal heirs. If the case is that the whereabouts of Karthianiamma were not known, that fact has to be pleaded and if she has left behind legal heirs, they are entitled to a share. 15. But merely because the necessary parties were not impleaded in the suit, it may not be proper to dismiss the suit, and an opportunity must be given to the plaintiffs to cure the defects. Therefore, this appeal is allowed, the impugned judgment and decree are set aside with regard to the finding of non-joinder of necessary parties. The finding of the lower appellate court that the properties are partible is confirmed. The matter is remanded to the trial court for ascertaining whether there are any other legal heirs who are liable to be brought on the party array and if it is found that there are other legal heirs, an opportunity be given to the plaintiffs to bring them on the party array. The parties shall appear before the trial court on 24.8.2011. Parties shall be given liberty to amend the pleadings to the above effect S.A.6/1998. 12 and to adduce further evidence in that regard only. The trial court may make every endeavour to dispose of the suit as expeditiously as possible, at any rate within six months from the date of appearance of the parties. P. BHAVADASAN, JUDGE sb.