Point of Law: An order remanding a proceeding may ordinarily be made when trial Court has decided case on a preliminary point, and appellate court reversed that decision.

JUDGMENT :

This appeal arises from the judgment dated 29.5.2020 passed by the Additional District Court, North Paravur, in A.S.No.166 of 2002. The defendant is the appellant.

2. The plaintiff and defendant are the children of Kunjuvareeth. Kunjuvareeth has another daughter named Annies. The plaint schedule property belonged to Kunjuvareed, who died intestate in 1984.

3. The plaintiff instituted a suit for partition as O.S.No.707/1994 before the Principal Subordinate Judge’s Court, North Paravur, seeking partition of the plaint schedule property.

4. The plaintiff pleaded the following:-

The plaintiff is residing in Madras along with her family. Annies, her sister, had been given a share in the family property when she was married. The plaintiff and defendant are the only persons entitled to share in the plaint schedule property in their joint possession and enjoyment.

5. The defendant pleaded as follows:-

The plaintiff has no right over the property. She had already received her share in the family property even during the lifetime of their father. The plaintiff has received Rs.20,000/-in cash and 25 sovereigns of gold ornaments in addition to the usufructuary mortgage regarding a property in favour of herself and her husband. The period fixed for the mortgage was five years. The redemption period was over, and therefore, the plaintiff obtained that property without encumbrance. Hence, the plaintiff cannot claim any share in the property of Kunjuvareeth.

6. The parties went to trial. During the trial, Exts.A1 & A2 were marked on the plaintiff's side, and Ext.B1 was marked on the defendant’s side.

7. The trial Court framed the following issues:-

1. Is the suit maintainable?

2. Whether the plaint schedule property is partible?

3. What is the share if any of plaintiff?

4. Whether the plaintiff is entitled to get mesne profits. If so the quantum?

5. Costs and Reliefs.

8. The trial Court dismissed the suit, holding that the plaintiff was not entitled to a share in her father’s property as she had already obtained her share in the family property.

9. The Plaintiff challenged the decree and judgment passed by the trial Court in A.S.No.166/2002 before the First Appellate Court. The First Appellate Court decreed the suit, holding that the plaintiff, defendant and Smt.Annies are entitled to 1/3rd share each in the plaint schedule property.

10. The defendant challenges the decree and judgment passed by the First Appellate Court under Section 100 of the CPC in this Regular Second Appeal.

11. After hearing both sides, this Court re-formulated the substantial question of law as follows:-

“Did the non-impleadment of Smt.Annies, one of the daughters of Kunjuvareeth, prevent the Courts below in passing an effective decree as provided in Order 20 Rule 18 of the Code of Civil Procedure?”

12. Heard the learned Senior Counsel appearing for the appellant/defendant Sri.K.Ramakumar and Sri.Dinesh R.Shenoy, the learned counsel appearing for the respondent/plaintiff.

13. The learned counsel for the appellant/defendant contends that the rights of the parties cannot be judicially determined in the absence of the persons interested in contesting them. It is further submitted that allotment of share to Smt.Annies, who is otherwise not entitled to it, without her in the party array, has affected the share the defendant is entitled to. The learned Senior Counsel relied on Kanakarathanammal v. V.S.Loganatha Mudaliar and Another (AIR 1965 SC 271) in support of his contention.

14. The learned counsel appearing for the plaintiff contends that non-impleadment of Annies would not affect the decree passed by the First Appellate Court as in a suit for partition, a party interested has the right to be impleaded until the final decree is passed. The learned counsel relied on Ammini Ammal v. Krishnan and Others (1978 KHC 21), Ollur Bank Ltd. v. Little Flower Bank Ltd. (1954 KHC 104), Pitchai S. v. Ponnammal and Others (2017 KHC 5703), and Ramader Appala Narasinga Rao v. Chunduru Sarada (AI