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2022 Supreme(Online)(KER) 36909
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE SATHISH NINAN TUESDAY, THE 22ND DAY OF NOVEMBER 2022 / 1ST AGRAHAYANA, 1944 SA NO. 428 OF 1996 AGAINST THE JUDGMENT IN AS 122/1995 OF ADDITIONAL DISTRICT COURT, THALASSERY OS 455/1993 OF ADDITIONAL SUB COURT, THALASSERY -----
APPELLANTS/APPELLANTS/PLAINTIFFS:
1 CHERUVALATH MADHAVI, D/O. MATHA, RESIDING AT PATHIRIYAD AMSOM, KEEZHATHUR DESOM, THALASSERY, KANNUR DISTRICT.
2 SISTER JANU, (DIED; LHRS IMPLEADED)
RESIDING DO.
3 SISTER CHIRUTHA, RESIDING DO.
4 SISTER NANI, RESIDING DO.
5 BROTHER VASU, RESIDING DO.
*1 SUPPLEMENTAL APPELLANTS 6 TO 9
6 CHERUVALATH PANKAJAKSHI, D/O.LATE JANU,AGED 51,RESIDING AT PARIPPAD VEEDU,P.O.MAMBARAM,PATHIRIYAD AMSOM DESOM,THALASSERY TALUK.
SA NO. 428 OF 1996 -2-
7 CHERUVALATH VINAYAN, S/O.LATE JANU,AGED 40,RESIDING AT PARIPPAD VEEDU,P.O.MAMBARAM,PATHIRIYAD AMSOM DESOM,THALASSERY TALUK.
8 CHERUVALATH DEEPIKA, D/O.LATE JANU,AGED 36,RESIDING AT PARIPPAD VEEDU,P.O.MAMBARAM,PATHIRIYAD AMSOM DESOM,THALASSERY TALUK.
9 MADATHUMKANDY REETHA, W/O.LATE BABU,RESIDING AT PARIPPAD VEEDU,P.O.MAMBARAM,PATHIRIYAD AMSOM DESOM,THALASSERY TALUK.
*1 (THE LEGAL HEIRS OF DECEASED 2ND APPELLANT ARE IMPLEADED AS SUPPLEMENTAL APPELLANTS 6 TO 9 AS PER ORDER DATED 16.11.2022 IN IA.777/2014.)
BY ADVS.
SRI.CIBI THOMAS PHIJO PRADEESH PHILIP SRI.C.KHALID RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 CHERUVALATH KORUMBI @ KORUMBATHI, (DIED; LHRS IMPLEADED)
RESIDING IN KILLIYODE VEEDU, PATHIRIYAD AMSOM, PATHIRIYAD P.O, THALASSERY TALUK, KANNUR DISTRICT.
2 CHERUVALATH GOVINDAN, (DIED; LHRS IMPLEADED)
RESIDING IN KUTTIYERICHI VEEDU, PINARAYI AMSOM, VENDUTTAYI DESOM, THALASSERY TALUK, KANNUR DISTRICT.
SA NO. 428 OF 1996 -3-
3 CHERUVALATH NANU, (DIED; LHRS IMPLEADED)
S/O. MATHA, RESIDING AT PATHIRIYAD AMSOM, KEEZHATHUR DESOM, THALASSERY TALUK, KANNUR DISTRICT.
*2 ADDL. RESPONDENT NO.4
4 CHERUVALATH JAYESH, S/O.LATE JANU, AGED 48 YEARS, RESIDING AT PARIPPAD VEEDU P.O.,MAMBARAM, THALASSERY TALUK-
670101.
*2 (THE LEGAL HEIRS OF 2ND APPELLANT IS IMPLEADED AS ADDL. R4 AS PER ORDER DATED 16.11.2022 IN IA 777/2014)
*3 ADDL. RESPONDENT NOs.5 TO 9
5 CHERUVALATH ROHINI, (DIED; LHR IMPLEADED)
AGED 70 YEARS, D/O.KORUMBI, KILLIYODE VEEDU, PATHIRIYAD AMSOM DESOM, THALASSERY TALUK-670101.
6 PARAMBAN LEELA, W/O.CHERUVALATH KUNHIKANNAN, AGED 62 YEARS, RESIDING AT KILLIYODE VEEDU, PATHIRIYAD AMSOM DESOM, THALASSERY TALUK-670001.
7 CHANDRAN, S/O.KUNHIKANNAN, AGED 45 YEARS, RESIDING AT KILLIYODE VEEDU, PATHIRIYAD AMSOM DESOM, THALASSERY TALUK-670101.
8 RAJESH, S/O.KUNHIKANNAN, AGED 43 YEARS, RESIDING AT KILLIYODE VEEDU, PATHIRIYAD AMSOM DESOM, THALASSERY TALUK-670101.
9 ANEESH, S/O.KUNHIKANNAN, AGED 41 YEARS, RESIDING AT KILLIYODE VEEDU, PATHIRIYAD AMSOM DESOM, THALASSERY TALUK-670101.
SA NO. 428 OF 1996 -4-
*3 (THE LHRS OF DECEASED R1 ARE IMPLEADED AS ADDL.R5 TO R9 AS PER ORDER DATED 16.11.2022 IN IA.779/2014.)
*4 ADDL. RESPONDENT NOS.10 TO 15
10 MOOLAN SARADA, D/O.NANU, AGED 52, RESIDING AT KANDATHIL VEEDU, MANAKKADAVATH KEEZHATHUR AMSOM, PATHIRIYAD AMSOM, THALASSERY TALUK-670101.
11 MOOLAN SHYAMALA, D/O.NANU, RESIDING AT KANDATHIL VEEDU, MANAKKADAVATH KEEZHATHUR AMSOM, PATHIRIYAD AMSOM, THALASSERY TALUK-670101.
12 MOOLAN SHAJAN, (DIED; LHRS IMPLEADED)
S/O.NANU, AGED 44, RESIDING AT KANDATHIL VEEDU, MANAKKADAVATH KEEZHATHUR AMSOM, PATHIRIYAD AMSOM, THALASSERY TALUK-670101.
13 MOOLAN ANIL, S/O.NANU, AGED 42, RESIDING AT KANDATHIL VEEDU, MANAKKADAVATH KEEZHATHUR AMSOM, PATHIRIYAD AMSOM, THALASSERY TALUK-670101.
14 NAMITHA, D/O.MAHIJA, AGED 20 YEARS,RESIDING AT KANDATHIL VEEDU, MANAKKADAVATH KEEZHATHUR AMSOM, PATHIRIYAD AMSOM, THALASSERY TALUK-670101.
15 NITHU, D/O.MOOLAN MAHIJA, AGED 18 YEARS,RESIDING AT KANDATHIL VEEDU, MANAKKADAVATH KEEZHATHUR AMSOM, PATHIRIYAD AMSOM, THALASSERY TALUK-670101.
*4 (THE LHRS OF DECEASED R3 ARE IMPLEADED AS ADDL.R10 TO R15 AS
SA NO. 428 OF 1996 -5-
*5 ADDL. RESPONDENT NOS.16 TO 21
16 VIJAYAN, RESIDING AT KUTTIYERICHI VEEDU, PINARAYI AMSOM, VENDUTTAYI DESOM, THALASSERY TALUK, KANNUR DISTRICT-670 101. 17 RAVEENDRAN, RESIDING AT KUTTIYERICHI VEEDU, PINARAYI AMSOM, VENDUTTAYI DESOM, THALASSERY TALUK, KANNUR DISTRICT-670 101.
18 MANOHARAN, RESIDING AT KUTTIYERICHI VEEDU, PINARAYI AMSOM, VENDUTTAYI DESOM, THALASSERY TALUK, KANNUR DISTRICT-670 101.
19 RAJAN, RESIDING AT KUTTIYERICHI VEEDU, PINARAYI AMSOM, VENDUTTAYI DESOM, THALASSERY TALUK, KANNUR DISTRICT-670 101.
20 CHANDRIKA, RESIDING AT KUTTIYERICHI VEEDU, PINARAYI AMSOM, VENDUTTAYI DESOM, THALASSERY TALUK, KANNUR DISTRICT-670 101.
21 SURESH BABU, RESIDING AT KUTTIYERICHI VEEDU, PINARAYI AMSOM, VENDUTTAYI DESOM, THALASSERY TALUK, KANNUR DISTRICT-670 101.
SA NO. 428 OF 1996 -6-
*6 ADDL. RESPONDENT NO.22
22 CHERUVALLATH HAREENDRAN, AGED 58 YEARS, S/O.ROHINI,KITHIYODE VEEDU,PATHIRIYAD,VIA PINARAYI-670 741.
*6 (THE LHR OF DECEASED R5 IS IMPLEADED AS ADDL.R22 AS PER ORDER DATED 16.11.2022 IN IA.1/2019.)
*7 ADDL. RESPONDENT NOS.23 TO 25
23 NISHA, W/O.MOOLAN SHAJAN,RESIDING AT KANDATHIL VEEDU,MANAKKADAVATH,KEEZHATHUR AMSOM,PATHIRIYAD P.O.,THALASSERY TALUK-670 741.
24 ANUSREE, AGED 18 YEARS D/O.MOOLAN SHAJAN,RESIDING AT KANDATHIL VEEDU,MANAKKADAVATH,KEEZHATHUR AMSOM,PATHIRIYAD P.O.,THALASSERY TALUK-670 741.
25 ASHWINI, AGED 16 YEARS D/O.MOOLAN SHAJAN,RESIDING AT KANDATHIL VEEDU,MANAKKADAVATH,KEEZHATHUR AMSOM,PATHIRIYAD P.O.,THALASSERY TALUK-670 741.
*7 (THE LHRS OF DECEASED R12 ARE IMPLEADED AS ADDL.R23 TO R25 AS PER ORDER DATED 16.11.2022 IN IA.4/2019.)
BY ADVS.
R.SURENDRAN S.MAYUKHA JIJO PAUL E.V.NAYANAR THIS SECOND APPEAL HAVING COME UP FOR ADMISSION ON
22.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SATHISH NINAN, J.
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
Dated this the 22nd day of November, 2022
['SRI CIBI THOMAS', '', 'SRI C KHALID', 'SRI PHIJO PRADEESH PHILIP', 'T P SAJIDK', 'PHIJO PRADEESH PHILIP', 'SMT A C VIDYA', 'R SURENDRAN', 'S MAYUKHA']
J U D G M E N T
The suit for partition was dismissed concurrently by the courts. The plaintiffs are in appeal.
2. The plaint schedule consists of three items. The properties belonged to Kannan, the uncle of the plaintiffs (mother's brother); plaint item Nos.1 and 2 as per Ext.A2 partition karar of the year 1968, and item No.3 as per Ext.A1 assignment deed of the year 1968. Kannan is unheard of since the year 1975 and is presumed to be dead. He was unmarried and issueless. It is on the said allegations that the suit was filed for partition.
3. The second defendant filed written statement contending that Kannan had executed a power of attorney in his favour to deal with the property. He was put in possession of the property. There was an understanding that the property would be conveyed to him. The plaintiffs' contention that Kannan is presumed to be dead, was denied.
4. When the case was listed for trial in the list, the second defendant remained ex parte. Defendants 1 and 2 had filed written statements supporting the plaintiffs' case.
5. The courts refused to draw the presumption of death under Section 108 of the Evidence Act. The Courts were not satisfied with the evidence on record, to draw the presumption.
6. Heard Sri.T.P.Sajid, the learned counsel for the appellants and Sri.R.Surendran, the learned counsel for the contesting respondents, on the following substantial questions of law :-
(i) Were the courts right in holding that the evidence on record is insufficient to draw the presumption of death under Section 108 of the Indian Evidence Act ?
(ii) Did the courts overlook the fact that the suit is bad for non-joinder of necessary parties namely, all the siblings of Kannan or the legal heirs of deceased siblings?
7. Kannan had four siblings viz. Panjali, Matha, Kunhiraman and Korumbi @ Korumbathi. The children of Matha are the plaintiffs and one of the sons of Panjali is the second defendant. The other children of Panjali have not been impleaded in the suit. Korumbi is the first defendant in the suit. The legal heirs of Kunhiraman have also not been made as parties to the suit. The suit being one for partition, they are necessary parties to the suit; this is so since, admittedly Kannan was unmarried and issueless. Therefore, the suit is bad for non-joinder of parties. In terms of Order I Rule 9 of the Code of Civil Procedure, a suit shall not fail for the reason of non-
joinder of parties unless he is a necessary party. As found supra, the necessary parties to the suit have not been impleaded. Substantial question of law No.(ii) is answered accordingly.
8. The courts found that the evidence on record is insufficient to draw the presumption of death of Kannan under Section 108 of the Indian Evidence Act. Having found that the suit is bound to fail for non-joinder of necessary parties, it is not necessary to delve into the other issue with regard to the sufficiency of evidence regarding presumption of death. It would be sufficient if the question as to whether Kannan is alive or died is left open to be decided in appropriate suit, if any, filed with all the necessary parties on the party array. In order to enable the same, the finding on the said issue is set aside.
9. Having found that the suit is bad for non-
joinder of necessary parties, the suit is bound to fail.
Resultantly the Regular Second Appeal is allowed.
The decree and judgment of the courts are set aside and the suit is dismissed. It is clarified that the dismissal of the suit will not stand in the way of a fresh suit for partition being filed on impleading all the necessary parties.
