IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 18TH FEBRUARY 2010 / 29TH MAGHA 1931 SA.No. 54 of 1996(F) ---------------------------- AS.NO.288/1991 OF I ADDL. DISTRICT COURT, PALAKKAD, OS.NO.330/1986 OF MUNSIFF COURT, CHITTUR. .................... APPELLANT/RESPONDENTS 1, 3 AND 14/DEFENDANTS 2,4 & 15: -------------------------------------------------------------------------------------------- *1. MADURA MEENAKSHI AMMA, AGED 70 YEARS, D/O. CHEERU AMMA, RESIDING AT POOLAPARAMBIL, ETHANUR AMSOM DESOM, CHITTUR TALUK. *(DIED). **2. RUGMANI AMMA, AGED 57 YEARS, D/O. JANAKI AMMA, RESIDING AT POOLPARAMBIL, ETHANUR AMSOM DESOM, CHITTUR TALUK. **(DIED). ***3. ACHUTHAN NAIR, AGED 60 YEARS, S/O. KANNAMMA AMMA, RESIDING AT POOLAPARAMBIL ETHANUR AMSOM, DESAM, CHITTUR TALUK. ***(DIED). *ADDL. APPELLANTS 4 TO 10 IMPLEADED: 4. P. SAROJINI AMMA, W/O. LATE ACHUTHAN NAIR, `USHUS', ETHANUUR, PALAKKAD DISTRICT. 5. BABURAJ.P., AGED 33, S/O. SAROJINI AMMA, -DO- -DO-. 6. JAYARAJ.P., AGED 31, -DO- -DO- -DO-. 7. USHA.P., AGED 29 -DO- -DO- -DO-. 8. RAGHURAJ.P, AGED 26 -DO- -DO- -DO-. 9. PRAKASH.P, AGED 23, -DO- -DO- -DO-. 10. RAJESH.P, AGED 19, -DO- -DO- -DO-. ***LEGAL REPRESENTATIVES OF THE DECEASED 3RD APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 4 TO 10 AS PER ORDER DT. 06/03/98 ON C.M.P. NO. 1025/97. S.A. NO. 54/1996: *ADDL. APPELLANTS 11 TO 13 IMPLEADED: 11. DEVI AMMA, KIZHAKKETHIL VEEDU, MAYLARAPURAM, CHUNANGOD, OTTAPPALAM. 12. P. OMANA, SOBHA NILAYAM, ARAKULAM, KOTTAPATHA, MUNDOOR.P.O., PALAKKAD. 13. P. PRABHAVATHY, W/O. RAVI, PALLATHAKALATHIL VALLULLY, KARIMBA, KALLADIKKOD.P.O. *ADDL. A 11 TO 13 IMPLEADED AS THE LR'S OF THE DECEASED 1ST APPELLANT VIDE ORDER DATED 10/01/08 IN I.A. 2042/07. **ADDL. APPELLANTS 14 & 15 IMPLEADED: 14. LEELA AMMA, YADHU VIHAR, BUNGLOW KANNU, KONGAD.P.O. 15. NANIKUTTY ACHUKULANPARAMBIL, -DO- -DO-. **ADDL. A.14 & 15 IMPLEADED AS THE LR'S OF THE DECEASED 2ND APPELLANT VIDE ORDER DATED 10/01/08 IN I.A. 2044/07. BY ADVS. MR.P.VELAYUDHAN, MR.T.M.CHANDRAN. RESPONDENTS/APPELLANT NOS. 1 TO 7 – RESPONDENT NOS.2, 4 TO 13 AND 15 TO 19 - PLAINTIFF NOS. 2 TO 8 – DEFENDANT NOS. 3,5 TO 14 AND 16 TO 20: ------------------------------------------------------------------------------------------------------------------ 1. DASAN, AGED 36 YEARS, S/O. LATE GOVINDAN NAIR, RESIDING AT POOLAPARMBIL, ETHANUR AMSOM DESOM, CHITTUR TALUK. 2. SASI, AGED 38 YEARS, S/O. LATE GOVINDAN NAIR, RESIDING AT POOLAPARAMBIL, ETHANUR AMSOM DESOM, CHITTUR TALUK. 3. HARI, AGED 34 YEARS, S/O. LATE GOVINDAN NAIR, RESIDING AT POOLAPARAMBIL, ETHANUR AMSOM DESOM, CHITTUR TALUK. S.A. NO. 54/1996: 4. PANKAJAM, AGED 31 YEARS, D/O. LATE GOVINDAN NAIR, RESIDING AT POOLAPARAMBIL, EDHANUR AMSOM DESOM, CHITTUR TALUK. 5. ROJA, AGED 28 YEARS, D/O. LATE GOVINDAN NAIR, RESIDING AT POOLAPARAMBIL, ETHANUR AMSOM, DESOM, CHITTUR TALUK. 6. CHANDRIKA, AGED 42 YEARS D/O. LATE GOVINDAN NAIR, RESIDING AT POOLAPARMBIL, ETHANUR AMSOM DESOM, CHITTUR TALUK. 7. LEELA, AGED 44 YEARS, D/O. LATE GOVINDAN NAIR, RESIDING AT POOLAPARAMBIL, ETHANUR AMSOM, DESOM, CHITTUR TALUK. 8. KUNJI AMMA, AGED 62 YEARS, D/O. JANAKI AMMA, RESIDING AT POOLAPARMBIL, ETHANUR AMSOM, DESOM, CHITTUR TALUK. 9. THANKAM, AGED 45 YEARS, D/O. JANAKI AMMA, RESIDING AT POOLAPARAMBIL, ETHANUR AMSOM, DESOM, CHITTUR TALUK. 10. CHANDRAN, AGED 43 YEARS, S/O. JANAKI AMMA, RESIDING AT POOLAPARAMBIL, ETHANUR AMSOM DESOM, CHITTUR TALUK. 11. PRABHAKARAN, AGED 41 YEARS, S/O. JANAKI AMMA, RESIDING AT POOLAPARAMBIL, ETHANUR AMSOM, DESOM, CHITTUR TALUK. 12. RADHA, AGED 38 YEARS, D/O. JANAKI AMMA, RESIDING AT POOLAPARAMBIL, ETHANUR AMSOM, DESOM, CHITTUR TALUK. 13. OMANA, AGED 51 YEARS, D/O. KOCHAYA AMMA, RESIDING AT POOLAPARAMBIL, ETHANUR AMSOM, DESOM, CHITTUR TALUK. ****14. SREEDHARAN, AGED 46 YEARS, S/O. KOCHAYA AMMA, RESIDING AT POOLAPARMBIL, ETHANUR AMSOM, DESOM, CHITTUR TALUK. ****(DIED). 15. CHANDRIKA, AGED 43 YEARS, D/O. KOCHAYAMMA. 16. LEELA, AGED 40 YEARS, D/O. KOCHAYAMMA. 17. JALAJA, AGED 33 YEARS, D/O. KOCHAYAMMA. S.A. NO. 54/1996: 18. SHARADAMMA, AGED 62 YEARS, D/O. KOCHAYAMMA. 19. PARAMESWARAN NAIR, AGED 55 YEARS, S/O. KANNAMMA AMMA. 20. CHANDRASEKHARAN NAIR, AGED 53 YEARS, S/O. KANNAMMA AMMA. 21. BANUMATHI AMMA, AGED 50 YEARS, D/O. KANNAMMA AMMA. 22. SURENDRANATHAN, AGED 45 YEARS, S/O. KANNAMMA AMMA. 23. KANJANAMALA, AGED 40 YEARS, D/O. KANNAMMA AMMA. ****ADDL. RESPONDENTS 24 TO 26 IMPLEADED: 24. THANKAM, W/O. SREEDHARAN, SREEKRISHNA HOTEL, PANCHAYAMPADAM, KARIMBA.P.O., PALAKKAD. 25. RATHI, D/O. THANKAM, SREEKRISHNA HOTEL, PANCHAYAMPADAM, KARIMBA.P.O., PALAKKAD. 26. RESMI, D/O. THANKAM, SREEKRISHNA HOTEL, PANCHAYAMPADAM, KARIMBA.P.O., PALAKKAD. ****ADDL. R.24 TO 26 ARE IMPLEADED AS THE LR'S OF THE DECEASED R.14 VIDE ORDER DATED 14/09/07 IN CMP.2765/98. R1 TO R7 BY ADV. MR.H.BADARUDDIN. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P.BHAVADASAN, J. ------------------------------------- SA No.54 of 1996-F ------------------------------------- Dated 18th February 2010 Judgment Defendants 2, 4 and 15 on the file of the Court of the First Additional District Judge, Palakkad in AS No.288/91 from OS No.330/86 before the Munsiff's Court, Chittur, which is a suit for partition, are the appellants. 2. The facts and exhibits are hereinafter referred to as they are available before the Trial Court. 3. The property admittedly belonged to one Cheru Amma, the mother of Govindan Nair, Krishnan Nair, Raman Nair and defendants 1 and 2 and also the grand mother of defendants 3 and 4. The plaintiffs contended that each branch was entitled to 1/6th share. Since they did not want to continue joint possession, they issued notice seeking their share and defendants 1, 2 and 4 replied that since Govindan Nair has surrendered his right, the plaintiffs are not entitled to any right. During the pendency SA 54/96 2 of the proceedings, the first defendant died and her legal representatives were impleaded as defendants 14 to 20. 4. The Trial Court raised necessary issues for consideration. The evidence consists of the testimony of PW1 and the documents marked as Exts.A1 to A3 from the side of the plaintiffs. From the side of the defendants, DW1 was examined and Ext.B1 was marked. On a consideration of the materials before it, the Court below found that the claim of the plaintiffs was barred by ouster and limitation, though it was observed that they had established their 1/6th right in the property. The plaintiffs carried the matter in appeal as AS No.288/91. The lower Appellate Court allowed the appeal and granted a preliminary decree, setting aside the judgment and decree of the Trial Court. The said preliminary decree is assailed in this appeal. 5. This appeal can be disposed of on a very short ground. It is pointed out that the second defendant Kunji Amma died in 1992 and she has left behind her, her SA 54/96 3 legal heirs. Kunji Amma is entitled to a share in the property. The appellants have filed CMP No.1682/1998, pointing out that Kunji Amma died in 1992 during the pendency of AS No.288/91 and the appellate decree has been passed without impleading her legal heirs. It is pointed out that Kunji Amma has left behind her legal heirs. The appellants pointed out that the appeal before the lower Appellate Court had abated. 6. The question that arises for consideration in this appeal is whether the appeal is maintainable without impleading the legal representatives of necessary parties. It is trite law that when one of the sharers dies, his legal representatives should be impleaded in the case. In the case on hand, the second defendant before the lower Appellate Court died during the pendency of the appeal and it was necessary to bring her legal representatives on record. So, the preliminary decree without the legal representatives of Kunji Amma on the party array, is a nullity. Accordingly, this Appeal is allowed and the matter is SA 54/96 4 remanded to the lower Appellate Court for fresh consideration in accordance with law and in the light of what has been stated above. P.BHAVADASAN, JUDGE sta SA 54/96 5