A partition suit can be maintained despite a prior decree obtained by fraud when necessary parties were not included, reaffirming the rights of Class 1 heirs under the Hindu Succession Act.

JUDGMENT :

Easwaran S., J.

The present appeal arises out of the judgment in O.S No.365/2005 on the files of the Munsiff Court, Perumbavoor, and the judgment in A.S No.11/2018 on the files of the Sub Court, Perumbavoor.

2. The brief facts necessary for the disposal of this appeal are as follows:-

O.S. No.365/2005 was instituted for a declaration that the decree obtained by the defendants in O.S. No. 210/1994 is initiated by fraud and is not binding upon the plaintiff and for a further partition of 1/5 share. The plaintiff contended that the property originally belonged to one Ayyappan, who had two wives, Kunjikali and Ponni. Out of the first wedlock with Kunjikali, one Narayani and Karthiyayani were born. Out of the second wedlock, there were three children, Thankamma, Narayanan and Sarada. Narayani, who was born in the first wedlock had one child, Ammini, who had in turn has a child Kamalakshi, who is the plaintiff in O.S No.365/2005. Whereas, Karthiyayini, the sibling of Narayani had one son Gangadharan, who had four children, Shobhana, Radhamani, Rameshan and Ajitha. Under the second wedlock, Ayyappan had three children as stated above. Out of the three children, Narayana had two wives Kamala and Kousalya. Whereas, Saradha had four children, Chandra, Sudevan, Thulasi and Prasad.

3. O.S.No.210/1994 was instituted by one Ponnamma, daughter of Kousalya, who is the second wife of Narayanan. In the suit filed by Ponnamma, the children of Ayappan namely, Thankamma, Saradha and Karthiyayini, were arrayed as a party. However, the 1^st daughter Narayani born in the 1^st wedlock of Ayappan was not made a party. Therefore, the plaintiff in O.S No.365/2005 contended that she being the legal heir under Narayani, was entitled to a share over the plaint schedule property and, without her in the party array, the judgment and decree obtained by Ponnamma was vitiated by fraud and hit by Section 44 of the Evidence Act. The defendants entered appearance and contested the suit stating that the remedy of the plaintiff was not to file a separate suit, but they should have agitated the cause in the execution proceedings initiated in execution of O.S. No.210/1994. It was further contended that the decree passed in O.S.No.210/1994 was already executed and that the respective shares were taken hold by the parties. At this point of time, the entire transaction cannot be reopened.

4. The Trial Court on consideration of the contentions framed the following issues:-

1. Whether the preliminary decree and final decree in O.S No.210/1994 are liable to be set aside?

2. Whether the plaintiff is entitled to get a decree for partition of plaint schedule property and if so what shall be the share if any to which each of the parties is entitled?

3. Whether the delivery of property in E.P No.30/2005 dated, 30.11.2005 is liable to be set aside?

4. Whether the plaintiff is entitled to get a decree for permanent prohibitory injunction as prayed for ?

5. Relief and costs?

5. Later an additional issue was also framed as to whether the suit was barred by provisions of Order 21 Rule 97 to 101 of Code of Civil Procedure (for short ‘CPC’). The trial court did not consider the issues 1 to 5 and proceeded to answer the additional issue alone and dismissed the suit as not maintainable under provisions of Order 21 Rule 97 to 103 of CPC and thereafter permitted the plaintiff to file an application under Order 21 Rule 97 before the Executio