IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 14TH JANUARY 2010 / 24TH POUSHA 1931 RSA.No. 49 of 2005() -------------------- AS.104/2001 of III ADDITIONAL DISTRICT JUDGE (ADHOC), FAST TRACK COURT NO.I, THRISSUR OS.42/1999 of II ADDITIONAL MUNSIFF COURT,THRISSUR .................... APPELLANT/IST RESPONDENT/IST DEFENDANT: ----------------------------- KELU, AGED 69 YEARS, S/O.KODAPPULLY KARAPPAN, RESIDING AT PATTALAKUNNU, MANNUTHY, OLLUKKARA VILLAGE, THRISSUR TALUK. BY ADV. SRI.P.K.SAJEEV RESPONDENT(S)/APPELLANT AND 2ND RESPONDENT/PLAINTIFF AND 2ND DEFENDANT: --------------- 1. CHANDRIKA @ CHANDRA, AGED 48 YEARS, W/O.PARAKKAL SUGATHAN, D/O.KODAPPULLY VELAYUDHAN, PORATHUR DESOM, ALAPPAT VILLAGE, THRISSUR TALUK. 2. THANKAMMU @ THANKA, AGED ABOUT 64, W/O.IRADA KOCHUMON, D/O.KODAPPULLY KARAPPAN, NADATHARA VILLAGE, THRISSUR TALUK. ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO.49 of 2005 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 14th day of January, 2010 J U D G M E N T --------------------- Defendant No.1 is aggrieved by the judgment and decree of learned third Additional District Judge (Adhoc – Fast Track), Thrissur in A.S. No.104 of 2001 granting a preliminary decree for partition reversing dismissal of O.S. No.42 of 1999 by the learned second Additional Munsiff, Thrissur. Respondent No.1 sued appellant and respondent No.2 for partition and separate possession of her share. Respondent No.1 is the daughter of deceased Velayudhan. Appellant and respondent No.2 are brother and sister of said Velayudhan. According to respondent No.1, suit property - 78 cents in Sy.No.465 was acquired by Velayudhan, appellant and their father, Karappan as per Ext.A1, assignment deed No.3145/1951. In the year 1956 they sold 23 cents out of the said 78 cents as per sale deed No.4530/1956. Remaining 55 cents is the property scheduled in the plaint. Respondent No.1 claimed that her father Velayudhan, appellant and Karappan had 1/3rd share each in the suit property. Velayudhan died in the year 1951. Respondent No.1 got 1/3rd share in the suit property she having inherited it from R.S.A. No.49 of 2005 -: 2 :- Velayudhan. It is also her case that Karappan died in the year 1958 and his 1/3rd share devolved on respondent No.1, her mother and appellant. Respondent No.1 got the share of mother, Devaki on her death in the year 1997. Thus respondent No.1 got 6/12 shares in the suit property which she demanded separate possession. Appellant and respondent No.2 resisted the suit contending that suit property was acquired by the appellant. After the death of father of respondent No.1, appellant married Devaki, mother of respondent No.1 and begot four children in that wedlock. Those children are also entitled to share in the suit property and without them on the party array suit is liable to be dismissed. Trial court considered whether respondent No.1 is entitled to any share in the suit property. Appellant and respondent No.2 produced Exts.B1 to B7 to show that acquisition was made by the appellant. Trial court accepted contention of the appellant and respondent No.2 and dismissed the suit. Respondent No.1 took up the matter in appeal. First appellate court found that the property belonged in Jenm to Padinnjare Thadathil Mana from where leasehold right over the 78 cents was acquired by one Eyyappan and that right was acquired by Velayudhan, appellant and their father, Karappan. First appellate R.S.A. No.49 of 2005 -: 3 :- court also found that what was acquired by appellant as per Exts.B2 and B3 is only the Jenm rights. First appellate court further found that as per Section 72 of the Kerala Land Reforms Act jenm right vested with the Government on 1.1.1970 and thereafter appellant could not have acquire Jenm right from the landlord. Holding so property was found to be partible and respondent No.1 was given her share though not as claimed in the plaint. That is under challenge in the Second Appeal. 2. Following substantial question of law is framed for a decision: Whether since mother of respondent No.1 was remarried to the appellant, children born to her in that wedlock are entitled to share in the suit property and whether in their absence first appellate court was justified in passing a preliminary decree for partition? 3. It is contended by learned counsel for the appellant that in paragraph six of the written statement it is contended that after the death of Velayudhan, his brother, appellant married Devaki, wife of Velayudhan and mother of respondent No.1 in the year 1953. R.S.A. No.49 of 2005 -: 4 :- Devaki died in the year 1997 but since Karappan died in the year 1958 succession to his 1/3rd share opened on that date and hence by virtue of Section 24 of the Hindu Succession Act Devaki could not claim right in the share of Karappan since she had by then got married to the appellant. It is argued by learned counsel that evidence of D.W.1 supported by Exts.B4 to B7 show that four children were born to Devaki in the appellant. They being necessary parties to the suit first appellate court was not correct in granting a preliminary decree for partition. It is also contended by learned counsel that none of the courts below have adverted to this question. Learned counsel for respondent No.1 would contend that no such issue was raised in any of the courts below and hence cannot be raised at this stage. 4. It is seen that no issue regarding non-joinder of necessary parties was raised by the learned Munsiff nor was that question considered. First appellate court also did not advert to that question. It is not clear whether the issue was actually raised before the trial or first appellate court at the time of hearing. Even if it is assumed that question was not so raised, if non- impleadment is in respect of necessary parties that is certainly a R.S.A. No.49 of 2005 -: 5 :- substantial question of law which is required to be decided in the Second Appeal. For, without necessary parties on record, no effective adjudication of the dispute can be made. I stated from the evidence of D.W.1 and Exts.B4 to B7 that as pleaded by the appellant in paragraph 6 of the written statement he had married Devaki, wife of Velayudhan (and mother of respondent No.1) in the year 1953 following the death of Velayudhan in the year 1951. Death of Karappan was only in the year 1958 and hence succession to his share opened at that time. Going by Section 24 of the Hindu Succession Act any heir who is related to the intestate as the widow of a pre-deceased son, the widow of a pre-deceased son or the widow of a brother shall not be entitled to succeed to the property of the intestate as such widow, if on the date the succession opens, she has re-married. If Section 24 of the Hindu Succession Act were applicable, Devaki may not be entitled to any share in the 1/3rd right of Karappan. But she could inherit a share in the 1/3rd right of Velayudhan and on her death, that share of her could go to all her legal representatives including her children in defendant No.1. Courts below have not referred to Section 24 of the Hindu Succession Act with reference to the contention raised by the R.S.A. No.49 of 2005 -: 6 :- appellant as aforesaid. Legality of marriage of Devaki with defendant No.1 is not raised as an issue in this case. Assuming so that the marriage is not valid, still it has to be decided what is its consequence on her children born to defendant No.1. In the light of the above legal and factual situation judgment and decree passed by the courts below cannot stand. But respondent No.1 has to be given an opportunity to implead necessary parties to the suit and prosecute the matter further. I am not entering into any finding as to whether right of Devaki is lost on account of her marrying the appellant in view of Section 24 of the Hindu Succession Act. That is a matter which the trial court has to decide. Substantial question of law framed is answered accordingly. Resultantly the Second Appeal is allowed by way of remand. Judgment and decree passed by the courts below are set aside and case is remitted to the court of learned second Additional Munsiff, Thrissur for fresh disposal after giving opportunity to respondent No.1 to implead necessary parties in the light of the contention raised by the appellant. Parties will get opportunity to amend their pleadings if they are so advised and if circumstances warranted that. Parties will also get opportunity to adduce further evidence if any. R.S.A. No.49 of 2005 -: 7 :- Trial court shall decide partibility of the suit property and the question whether Devaki was disentitled to claim right in the share of Karappan in view of Section 24 of the Hindu Succession Act. Trial court shall decide the issues untrammelled by any finding contained in the judgments of the courts below. Registry shall send back the records to the trial court immediately. Parties shall appear in the trial court on 27.02.2010. Interlocutory Application No.100 of 2005 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv