IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE FRIDAY, THE 4TH JULY 2008 / 13TH ASHADHA 1930 AS.No. 217 of 1994() -------------------- OS.70/1991 of SUB COURT, TIRUR .................... APPELLANT (PLAINTIFF IN THE COURT BELOW) --------------------------------------------------------------------- NAZAR MOIDEEN, S/O POTTARATHU MOIDEENKUTTY REP. BY POWER OF ATTORNEY HOLDER SHRI.MUHAMMED, S/O PARAMBATTU VALAPPIL MUHAMMEDKUTTY RESIDING AT KUTTIPPURAM AMSOM AND DESOM, TIRUR TALUK, MALAPPURAM DISTRICT BY ADV. SRI.K.RAMACHANDRAN, SMT.PREETHY KARUNAKARAN,JAYASREE.S. RESPONDENTS ( DEFENDANTS IN THE COURT BELOW) -------------------------------------------------------------------------- (5TH DEFENDANT BEING DEAD AND RESPONDENTS 6 & 7 HEREIN BEING HER LEGAL REPRESENTATIVES) 1. KAKKATTIL IYYATHUTTY UMMA, W/O DECEASED POTTARATHU MOIDEENKUTTY, KUTTIPPURAM AMSOM AND DESOM, TIRUR TALUK, MALAPPURAM DISTRICT. 2. KUNHATHUTTY UMMA, D/O POTTARATHU MOIDEENKUTTY, --DO-- ---DO--- 3. MUHAMMED, S/O DECEASED POTTARATHU MOIDEENKUTTY, ----DO--- ---DO--- 4. KUNHAISA, S/O KARUTHEDATH MOIDEEN NEDUVA AMSOM, TIRUR TALUK MALAPPURAM DISTRICT AS.NO.217/94 2 5. BEEPATHU, D/O KARUTHEDATH MOIDEEN NEDUVA AMSOM, TIRUR TALUK MALAPPURM DISTRICT 6. HASEENA (MINOR), REP. BY HER FATHER AND LEGAL GUARDIAN OLAPILAL ABDULLA NEDUVA AMSOM, TIRUR TALUK MALAPPURAM DISTRICT 7. OLAPILAVIL ABDULLA, S/O ALAVIKUTTY HAJI, NEDUVA AMSOM, TIRUR TALUK MALAPPURAM DISTRICT THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 04/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE, J. - - - - - - - - - - - - - - - - - - - - - A.S.No.217 OF 1994 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of July, 2008 JUDGMENT The plaintiff in a suit for partition which was dismissed by the trial court is the appellant. The first respondent is the second wife of deceased Moideenkutty, the plaintiff's father. Defendants 2 and 3 (respondents 2 and 3) were children of deceased Moideenkutty. The suit claim was that the plaint schedule properties and other properties belonged to Moideenkutty. Upon the demise of Sri.Moideenkutty the properties left behind by Moideenkutty were partitioned as per registered partition deed No. 1812/1996 of S.R.O.Kuttipuram. At that time, plaintiff was a child in the womb and the plaint schedule property was allotted to the share of defendants 1 to 3 and the plaintiff. Plaintiff's claim is that he is entitled to get 14 out of 40 shares by dividing the plaint schedule property into metes and bounds. The plaintiff has come to know that the plaint schedule properties are presently in the possession and enjoyment of defendants 4 to 6 against the interest and benefit of the plaintiff. According to him, if defendants A.S.No.217/94 2 1 to 3 have created any document transferring the plaint schedule property, such transfer will not affect the share or his rights on the plaint schedule property. He contends that the sale deed executed by the first defendant alienating his share to strangers is ab initio void. He has filed the suit for partition with mense profits since defendants 1 to 3 have colluded together with defendants 4 to 6 to deny him his share in the plaint schedule property. 2. Defendants 4 to 6 filed a joint written statement contending that the suit is filed without any bonafides and with ulterior motives. The age of the plaintiff mentioned in the plaint is not correct. Name of the plaintiff is not Nazer Moideen. His name is Muhammed. A suit for partition of the properties left behind by deceased Moideenkutty was filed as O.S.No. 54/70 on the files of Tirur Sub Court and the plaintiff is treating item Nos. 6 and 7 of the plaint schedule properties in that suit as the plaint schedule property in this case. The plaintiff was the 16th defendant in that suit. The first defendant was the 15th defendant and the second defendant was the 13th defendant and the third defendant was the 14th defendant in that suit. A.S.No.217/94 3 Plaint schedule items 1 to 7 in that suit including the plaint schedule property in the present suit was purchased by the 8th defendant, Hamsa Haji in the year 1966 from defendants 1 to 3. Item No.7 in the plaint schedule property in that suit was excluded from partition as per the judgment and decree in that suit which was disposed of on 18-1-72. The decision in O.S.No.54/70 is binding on the plaintiff. Hence the prayer in the suit is barred by res judicata. Sri.Hamsa Haji after purchasing the plaint schedule property in the year 1966 entrusted certain properties to Saidali under an oral lease. Defendants 4 and 5 purchased the jenm right and tenancy right in respect of item 2 of the plaint schedule property. Right if any, the plaintiff was having on the plaint schedule property is lost to him by adverse possession and ouster. Item No. 1 of the plaint schedule property is in the possession and enjoyment of Pathutty, Muhammed, Muhammed Sherif, Kunhimoideenkutty and Abdul Khader, all children of Alavi. They are necessary parties in the suit. Suit is bad for non-joinder of the above persons. 3. Supplemental defendants 8 and 10 were impleaded as legal A.S.No.217/94 4 heirs of deceased 5th respondent and the 8th defendant made ex parte. The 7th defendant is a minor and the guardian appointed for the 7th defendant filed a written statement contending that the suit property is not available for partition. 4. On the pleadings, learned Subordinate Judge formulated the following issues for trial. 1) Whether the suit is bad for res judicata? 2) What is the date of birth of the plaintiff? 3) What is the name of the plaintiff? 4) Whether the claim is barred by limitation and adverse possession. 5) What is the identity of the property ? 5. The evidence in the case consisted of the oral testimonies of PW1 and DW1. Documentary evidence consisted of Ext.A1-extract of the admission register issued by G.H.S.Kuttippuram in respect of Nazer Moideen. Ext.A2 is the copy of the lawyer notice issued on behalf of the appellant-plaintiff. On the side of the defendant, the documentary evidence consisted of Exts.B1 to B4. Ext.B1 is the janm A.S.No.217/94 5 assignment deed executed by Hamsa Haji in favour of Kunjayammu and others. Ext.B2 is the copy of the decree in O.S.No. 54/70. Ext.B3 is the copy of jenm assignment deed executed by Hamza Haji in favour of Pathutty and others. Ext.B4 is the copy of the judgment in O.S.No.54/70. 6. Learned Subordinate Judge considering issue Nos. 2 and 3 would enter a finding that Mohammed who is the 16th defendant in Ext.B4 suit is the present plaintiff himself. According to the learned Judge it is possible that his name was changed subsequently to Nazer Moideen at the time of his admission in the school. However relying on Ext.A1 itself, the court found that the correct date of birth of the appellant- plaintiff is 28-5-1967. The court noticed the finding in the judgment in O.S.No.54/70 -Ext.B4 judgment that the 18th defendant therein had dealt with the property bonafide and is protected by Section 41 of the Transfer of Property Act. Accordingly, it was held that Ext.B4 judgment is binding on the 16th defendant in that suit namely the plaintiff in the present suit since “the minor was properly represented by a guardian in that suit”. Relying on Ext.B4 judgment in A.S.No.217/94 6 O.S.No. 54/1970, the learned Subordinate Judge held that in as much as the present plaintiff who was the 16th defendant in that suit did not contend that he has a title for share in the properties, such a contention now raised through the present suit will not be available to him. Thus it was held that the present suit is barred by principles of constructive res judicata. 7. Issue No. 4 was also answered by the learned Subordinate Judge in favour of defendants 4 to 6 regarding item No.2 of plaint schedule properties. To issue No.5 as to whether properties is to be identified, the learned Subordinate Judge would answer that in the positive on the reason that the defendants have identified the plaint schedule properties. Coming to issue No. 6, while considering issue No. 6, the learned Subordinate Judge would hold that the plaintiff ought to have impleaded all the legal heirs of the 5th defendant who had expired prior to the institution of the suit, but has impleaded only defendants 7 and 8. The non-impleadment of the father of the 5th defendant is however ignored by the court on the reason that the same does not seriously affect the question involved in the case since some A.S.No.217/94 7 of the legal heirs of the 5th defendant have already been been arrayed. The court did notice the contention of defendants 4 and 6 that item No.1 in the plaint schedule property was in the possession and enjoyment of Pathutty, Muhammed, Mohammed Sherief, Kunhimoideenkutty and Abdul Khader, all children of Alavi. As regards this contention the court below noticed that the plaintiff did not take steps for impleading those persons who are assignees from Hamsa Haji and even though it was found that those persons are necessary parties in the suit, the court below does not decide the suit on the reason of non-impleadment in view of the finding that the suit is barred by res judicata. 8. Even after completion of service of notice on the respondents, none of them entered appearance before this court for resisting the appeal. I have heard the submissions of Sri.K.Ramachandran, learned counsel for the appellant. Sri.Ramachandran would address me extensively on the various grounds raised in the appeal memorandum. Since I find that the case will have to be remanded to the trial court on two reasons, I do not A.S.No.217/94 8 propose to decide the merits of the other submissions which were addressed before me by Sri.Ramachandran. 9. As noticed already, the appellant-plaintiff was non-suited mainly on the reason that Ext.B4 decree in O.S.No.54/1970 operates as res judicata for the suit claim. It is fairly settled that for muslim minors in the absence of father, the legal guardians are executor appointed by the father's will and the executor appointed by the will of the paternal grand father. The Supreme Court in Meethiyan Sidhique v. Muhammed Kunju ( 1996(1)KLT 366(SC) referred to principles of Mohammedian law by Mulla and observed that no other relations are entitled to be the guardian for the property of the muslim minor as of right, not even the mother, brother or the uncle. Nothing has been brought on record to indicate that in O.S.No.54/1970 the question whether appellant's mother who has apparently represented him as guardian could have represented him as guardian and as to whether any other legal guardians were available to represent the appellant was considered by the learned Subordinate Judge. In other words, whether the appellant-plaintiff then a minor was represented by a competent and A.S.No.217/94 9 authorised person in O.S.No.54/1970 is a question which should have received the attention of the learned Subordinate Judge. 10. One of the contentions raised seriously in this case by some of the defendants is that the suit is bad for non-joinder of parties namely Pathutty, Muhammed, Mohammed Sherief, Kunhimoideenkutty and Abdul Khader, all children of Alavi. A reading of paragraph 18 of the judgment will show that the learned Judge blames the appellants for not having taken steps for impleading the above persons as parties to the suit. According to me when a contention that the suit property in a suit for partition is in possession and enjoyment of strangers and hence not available for partition is seriously taken, it was for the learned Subordinate Judge to have raised an issue as to whether the suit is bad for non-joinder of necessary parties so that in the light of that issue the plaintiff could seek impleadment of the parties who are stated to be necessary parties. In the present suit after holding that the suit is bad for non-joinder of necessary parties, the learned Judge goes on to hold that the issue of non-joinder of necessary parties does not assume importance in the A.S.No.217/94 10 light of his findings of the other issues. According to me, as found by the learned Judge, the issue as to whether the suit is bad for non-joinder of necessary parties did arise in the suit and therefore such an issue should have been formulated by the court below for trial. 11. The result of the above discussion is that I set aside the judgment and decree under appeal and remand the suit back to the trial court. The trial court will formulate additional issue as to whether the suit is bad for non-joinder of Alavi's children and would permit the appellant to bring them also on the array. Fresh decision will be taken on all issues and while taking decision on Issue No.1, the court below will consider the question whether the appellant was represented by a competent person in Ext.B4 suit. Remanded as above. Refund the full court fee paid on the appeal memorandum to Sri.K.Ramachandran, counsel for the appellant. PIUS.C.KURIAKOSE JUDGE sv. A.S.No.217/94 11