IMPORTANT POINTS
It will not constitute res judicata as the earlier suit was dismissed on the ground of incompetency due to non-compliance of Order 1 Rule 8 of C.P.C- Hence it will not operate as res judicata in defending the present suit- Maintaining a suit in a representative capacity, the core requirement is the existence of 'same interest' and in the absence of such interest, there cannot be a representative suit- The admission made earlier regarding the status and authority of the defendants would bind on the plaintiffs- Both the trial court and the first appellate court failed in appreciating the admission made in the earlier documents by some of the sharers who were having indivisible right of ownership over the property and impact of the said admission in a suit under Order 1 Rule 8 C.P.C. and that has resulted in miscarriage of justice.

JUDGMENT :

1. A suit for declaration of co-ownership right, possession thereof over plaint A and B schedule and a permanent prohibitory injunction not to meddle with the right of plaintiff, was decreed by both the trial court and the first appellate court. Earlier the suit was dismissed, but the first appellate court set aside the decree and remanded back to the trial court. It is thereafter both the courts below decreed the suit, against which defendants 1, 3, 8, 9 , 10, 13, 14, 15, 21 and 23 came up with this appeal.

2. The plaint A schedule is having 24.5 cents in Sy.No.5/8 A of Thiruppuram village, Neyyattinkara and the B schedule is the structures situated therein, the temple and its connected structures. The plaint A schedule property was a part of large extent of 1 acre 83 cents in Sy.No.5/8 A. Earlier this property was subjected to a settlement by the settlement officer under the Travancore Oodukur settlement proclamation 1122 (ME), by which it was divided into 14 plots and allotted to 10 persons. The plot No.11 is the plaint A schedule. It was kept in common to the 10 persons under the settlement order -Ext.A1, over which the plaintiffs claim co-ownership right and possession. The suit was instituted in a representative capacity for themselves and also for and on behalf of all the co-owners.

3. The defendants contested the suit that the temple is a public temple belonged to a section of people, the Ezhava community and from time immemorial they were managing and administering the affairs of the temple through an elected body by name Kshetra Yoga Committee headed by its President. Inter alia it was contended that they have acquired so many immoveable properties in the name of deity. On 14.10.1982, they have executed and registered a trust udampady based on the decision taken by the general body of section of people belonged to Ezhava community dated 8.8.1982. The trial court and the first appellate court rejected the contention of the defendants and granted a declaration in favour of the plaintiffs besides a prohibitory injunction not to meddle with the right, title and interest of the plaintiffs over the property.

4. During the pendency of this appeal, some of the defendants and the plaintiffs were passed away. But their legal heirs were not impleaded. Hence, it was submitted that the present appeal is abated as against those who are dead.

5. The questions to be addressed in this appeal are:

(1) Whether an appeal would stand abated on death of some of the appellants and respondents during its pendency, due to non-impleadment of legal heirs/legal representatives ? Is there any difference in the legal position if it is in a representative capacity or defended in a representative capacity ? What would be the legal position if it is both under individual and representative capacity ?

(2) What is the right held by the plaintiffs over the plaint schedule property and whether it is a divisible or an indivisible right of co-ownership ? What is the legal impact of acts done by some of the co-sharers over the property, if it is related to indivisible co-ownership right over the said property ?

(3) When some of the co-owners having indivisible right had acted in derogation of others, can a suit be maintained in a representative capacity for and on behalf of the said co-owners and whether estoppel by conduct would not come into play against the plaintiffs ?

(4) Is it permissible to have conflicting interest and divergent contention between the plaintiffs in a suit and what is the legal position if it is a representative suit for and on behalf of the person having the same interest, but some of them acted against the said interest ?

(5) What would be the legal impact when there is no challenge regarding the act done against the interest of the plaintiffs by others in whose behalf also the suit was instituted in a representative capacity and whether the plaintiff would stand bound by the act done against their interest by other co-owners ?

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