BY AD v. SRI.M.R.ANANDAKUTTAN

THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 07.08.2024, ALONG WITH CO.21/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE SATHISH NINAN & THE HONOURABLE MR. JUSTICE JOHNSON JOHN WEDNESDAY, THE 7TH DAY OF AUGUST 2024 / 16TH SRAVANA, 1946 CO NO. 21 OF 2019 IN RFA NO.318/2015 ----- AGAINST JUDGMENT AND DECREE DATED 10.02.2015 IN OS NO.308/2008 OF II ADDL. SUB COURT, THIRUVANANTHAPURAM ----- CROSS OBJECTOR/1ST RESPONDENT/PLAINTIFF: NAGENDRANATH P. THIRUKODE S/O DR.N.P.PILLAI, KALYANI MANDIRAM, VAZHUTHACAUD, THIRUVANANTHAPURAM, PRESENTLY RESIDING AT B-605, MANTICLASSIC, S-T, BED LAYANT, 4TH BLOCK, KORAMANGALA, BANGALORE-650534. BY ADV G.S.REGHUNATH RESPONDENTS/APPELLANT & RESPONDENTS 2 & 3/DEFENDANTS 5 AND 1 & 2: 1 2 INDIRA NAIR, AGED 70, W/O LATE C.P.N.NAIR, RESIDING AT C.P.N. NAIR, PRESENTLY RESIDING AT 'SRI VIDYA', KALYANI MANDIRAM COMPOUND, VZHUTHACAUD, THIRUVANANTHAPURAM-695010. T.P.MADHAVAN, S/O DR.N.P.PILLAI, KALYANI MANDIRAM ANNEX, KALYANI MANDIRAM COMPOUND, VAZHUTHACAUD, THIRUVANANTHAPURAM-695010. HEADNOTE- CO NO. 21 OF 2019 -2- 3 DR. RAM NAYAR, D/O DR.N.P.PILLAI, KALYANI MANDIRAM, VAZHUTHACAUD, THIRUVANANTHAPURAM, PRESENTLY RESIDING AT 1423, DOXTER DRIVE NORTH, PORT, ORANGE, FLORIDA-32020, U.S.A. BY ADVS. M.R.ANANDAKUTTAN SRI.P.A.AHAMMED SRI.B.SATHIQ SMT.S.LAKSHMY THIS CROSS OBJECTION HAVING COME UP FOR ADMISSION ON 07.08.2024, ALONG WITH RFA.318/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SATHISH NINAN & JOHNSON JOHN, JJ. = = = = = = = = = = = = = = = = = = R. F. A. No.318 of 2015 & Cross Objection No.21 of 2019 = = = = = = = = = = = = = = = = = = Dated this the 7th day of August, 2024 J U D G M E N T Sathish Ninan, J. The preliminary decree in a suit for partition is under challenge by the 5th defendant. The plaintiff has filed a cross objection with regard to the quantum of share.

2. The plaint 'A' schedule property has an extent of 70 cents. The plaint 'B' schedule is a portion of plaint 'A' schedule and has an extent of 17.150 cents. The plaintiff and the defendants are the children of late Meenakshikutty Amma and Sri.N.Parameswaran Pillai.

3. According to the plaintiff, the plaint schedule property is 'thavazhi' property of the parties. It originally belonged to Thirikkottu Meenakshi Amma, the great grand mother of the plaintiff by virtue of RFA No.318 of 2015 & Cross Objection No.21/2019 -: 2 :- Partition Deed No.3177/1110 ME. After her demise, her daughter Kalyani Amma (grand mother of the plaintiff) and her three children viz. Meenakshikutty Amma (the mother of the plaintiff), T.P.Krishnan Nair and T.P.Narayanan Nair executed Ext.A1 = B1 Partition Deed dated 16.08.1955. In the said partition, the plaint 'A' schedule property herein was allotted to Meenakshikutty Amma as included in the 'C' schedule therein. At the time of execution of Ext.A1 Partition Deed, the plaintiff and defendants were in existence and were members of the 'thavazhi' and had interest over the property.

4. On 26.05.1972 Meenakshikutty Amma executed Ext.B2 gift whereunder the 'A' schedule therein having an extent of 17.150 cents was gifted to her daughter, the 5th defendant (It is the 17.150 cents which is included in 'B' schedule to the plaint). Under Ext.B2 gift, the 'B' schedule therein having an extent of RFA No.318 of 2015 & Cross Objection No.21/2019 -: 3 :-

22.100 cents was gifted to another daughter, the 4 th defendant and the 'C' schedule therein having an extent of 26 cents was gifted to yet another daughter, the third defendant. The 'D' schedule described therein was a pathway. The suit has been instituted alleging that the property in question being a 'thavazhi' property, the mother Meenakshikutty Amma had no right to execute Ext.B2 Gift Deed and the document is void. Meenakshikutty Amma died on 05.10.1980 and Kalyani Amma died subsequently in the year 1985 or 1986, the exact date not being available.

5. On the commencement of the Joint Family System Abolition Act, the plaintiff and the defendants are entitled for equal shares in the property. Accordingly the plaintiff claims partition and separate possession of 1/6 share.

6. Pending the suit, the plaintiff and defendants 1 and 2 conveyed their rights over the 'C' schedule RFA No.318 of 2015 & Cross Objection No.21/2019 -: 4 :- property in Ext.B2 gift in favour of the third defendant under Ext.A7 Release Deed. So also, as per Ext.A8 Release Deed, the plaintiff and defendants 1 and 2 released their rights over the 'B' schedule in Ext.B2 Gift Deed to the 4th defendant. Pursuant thereto the suit was amended confining the relief of partition to the 'A' schedule property in Ext.B2 Gift Deed and including the said item as plaint 'B' schedule. Defendants 3 and 4 were deleted from the party array. Therefore, as per the amended plaint, the plaintiff claims partition and separate possession of 1/6th shares in the plaint 'B' schedule property.

7. The 5th defendant who is the contesting defendant contended that the property is not a 'thavazhi' property, but was the absolute property of Meenakshikutty Amma. It was contended that Ext.B2 Gift Deed is valid. It was claimed that the suit is bad for non-joinder of necessary parties. An alternate plea of RFA No.318 of 2015 & Cross Objection No.21/2019 -: 5 :- adverse possession and ouster was also raised.

8. The trial court, holding the property to be 'thavazhi' property, passed a preliminary decree for partition declaring the 1/6th share of the plaintiff over the plaint 'B' schedule.

9. We have heard learned Senior Counsel Sri.S.V.Balakrishna Iyer on behalf of the appellant-5th defendant and Sri.G.S.Reghunath, the learned counsel for the first respondent-plaintiff.

10. Admittedly the parties belong to the Hindu Nair Community folowing the Marumakkathayam Law and were governed by the Travancore Nair Act II of 1100 ME till the commencement of the Joint Family System (Abolition) Act, 1975.

11. During the course of the arguments of the appellant, it was felt that the issue of non-joinder of necessary parties need to be considered first since, in the event it was found that the necessary parties are RFA No.318 of 2015 & Cross Objection No.21/2019 -: 6 :- not on the party array the suit needs to be remanded back to the trial court. Accordingly the learned counsel were heard on the following issue :- “Is the suit bad for non-joinder of necessary parties ?”.

12. The suit is founded on the plea that the property in question is a 'thavazhi' property. Though at the time of execution of Ext.A1 = B1 partition in the year 1955 the plaintiff and the defendants were born, only their mother Meenakshikutty Amma was a party to the document. The claim of the plaintiff is that, the nature of the property being that of a 'thavazhi' property all the children acquired a right by birth. Therefore, they had right over the property. On the commencement of the Joint Hindu Family (Abolition) Act, they got separate shares. Thus, the very basis of the claim for partition is that the property is a 'thavazhi' property.

13. If the property is a 'thavazhi' property, then, the children if any born to defendants 3, 4 and 5 prior RFA No.318 of 2015 & Cross Objection No.21/2019 -: 7 :- to 01.12.1976 also get a right by birth. At paragraph 6 of the plaint it has been stated that the third defendant has a daughter who, as on the date of filing of the suit in the year 2008 was aged 40 years. If that be so she was born before 01.12.1976. The plaintiff as PW1, in his cross-examination has deposed that two children were born to the 5th defendant in the year 1961 and 1967 respectively. He has also deposed that the 4 th defendant also has two children. The children who were born to defendants 3, 4 and 5 before 01.12.1976 has right over the property and are sharers. However, they are not made parties to the suit.

14. The learned counsel for the contesting respondent would contend that there is no proper plea of non-joinder of parties.

15. It is seen that, at paragraph 10 of the additional written statement filed by the 5th defendant, on referring to Tarwad property and the deemed partition RFA No.318 of 2015 & Cross Objection No.21/2019 -: 8 :- as on 01.12.1976 it is alleged that the suit is bad for non-joinder of necessary parties. However, the trial court negatived the plea observing that the plaintiff and the defendants are the legal heirs of late Meenakshikutty Amma and that being a suit for partition any supplementary preliminary decree could be passed. Obviously the reference was to other sharers if any who are not parties to the suit.

16. The reasoning of the trial court is unsustainable. The shares of the parties, including the share of the plaintiff, will depend on the total number of sharers who are in existence as on 01.12.1976. In a suit for partition, all the sharers are necessary parties. Even if there is no proper plea by the defendant but it comes out that any sharer is not made a party to the suit, even the Court can under Order I Rule 10(2) of the Code of Civil Procedure direct impleadment of necessary party. Even going by the plaintiff’s case, RFA No.318 of 2015 & Cross Objection No.21/2019 -: 9 :- the children born to defendants 3, 4 and 5 prior to

01.12.1976 being sharers and not made parties to the suit, the suit is bad for non-joinder of necessary parties. Therefore, the finding of the trial court on the issue of non-joinder is liable to be set aside and we do so.

17. The appellant has a further contention with regard to non-joinder. According to the appellant, it is the contention of the plaintiff that Ext.B2 Gift Deed is a void document it having been executed in respect of a 'thavazhi' property. It is accordingly that the claim for partition has been laid. If Ext.B2 Gift Deed is to be ignored, then, on the death of Meenakshikutty Amma, her mother Kalyani Amma who was then alive, also became one of the sharers of Meenakshikutty Amma. On the death of Kalyani Amma defendants 3 and 4 also acquire an interest over her share. However, defendants 3 and 4 RFA No.318 of 2015 & Cross Objection No.21/2019 -: 10 :- were deleted from the party array. On the said account also the suit is bad for non-joinder of necessary parties, it is urged.

18. The above contention of the appellant has also been urged at paragraph 8 of the additional written statement filed by her. It is pleaded thus :- “The deletion of defendants 3 and 4 from the party array is fatal to the suit. Thus the suit has become bad for non-joinder of necessary parties at the instance of the plaintiff himself and the suit is to be dismissed on that sole ground.” The said aspect also requires consideration.

19. It having found that the suit is bad for non- joinder of necessary parties, it is necessary to afford the plaintiff opportunity to implead them. There could not be any findings on the merits of the rival contentions in their absence. Therefore, the entire RFA No.318 of 2015 & Cross Objection No.21/2019 -: 11 :- findings in the impugned judgment are to be set aside and we do so. The suit needs to be tried and disposed of afresh after impleading the necessary parties.

20. The plaintiff has filed a cross objection claiming that he is entitled for one out of four shares. It is open for the plaintiff to urge all his claims before the trial court. It is also clarified that, all the contentions of the appellant-5th defendant including the challenge on the character of the property are left open. Resultantly, the decree and judgment of the trial court are set aside. The suit is remanded back to the trial court for disposal anew. The trial court shall afford opportunity to the plaintiff to implead the necessary parties. The appeal and the cross objection are allowed as above. RFA No.318 of 2015 & Cross Objection No.21/2019 -: 12 :- Parties to appear before the trial court on

30.08.2024. Sd/- SATHISH NINAN JUDGE Sd/- JOHNSON JOHN JUDGE kns/- //True Copy// P.S. To Judge