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2025 Supreme(Online)(Mad) 66798
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dr.A.D.MARIA CLETE, J
Petchimuthu Konar(Died) – Appellant
Versus
S.H. Beema Beevi – Respondent
Second Appeal | S.A.(MD) No.752 of 2022
For the Appellants: Mr. P.T.Ramesh Raja
For the Respondents: Mr.M.P.Senthil
The non-joinder of necessary parties does not invalidate a partition suit decree when the alienee can adequately represent the vendor's interests.
Headnote:(A) Civil Procedure Code - Section 100 - Second appeal against judgment confirming partition decree - Claims for partition under Mohammedan law by heirs of deceased - Non-joinder of parties raised at second appeal stage - Held, objection waived by non-raising in earlier stages; not mandatory but proper party - Second appeal dismissed. (Paras 8-12)
(B) Mohammedan Law - Succession principles - Distribution of property shares post-decease of Mohammedan - Decree for partition validated against alienee - Plaintiffs entitled to respective shares despite omission of vendors. (Paras 4-7)
Facts of the case:
Plaintiffs claim share based on succeeding to their deceased father’s estate, asserting their legitimate right against defendant's claim of absolute ownership post-purchase from deceased's widow and daughters.
Findings of Court:
The prior decree in favour of plaintiffs established their entitlement; their claim not affected by subsequent sale to defendant.
Issues: 1. Were the plaintiffs’ claims legitimate under Mohammedan law? 2. Is non-joinder of parties grounds for dismissal?
Ratio Decidendi: Non-joinder did not affect trial dynamics; alienee binds interests, decree operational despite vendor absence; rights recognized under inheritance principles.
Result: Second Appeal dismissed.
| Table of Content |
|---|
| 1. overview of appeals and procedural context. (Para 2 , 3 , 4) |
| 2. claims for partition based on logical inheritance under mohammedan law. (Para 5 , 6) |
| 3. non-joinder of vendors debated in second appeal process. (Para 7 , 8) |
| 4. court's reaffirmation of decree despite vendor absence. (Para 9 , 10 , 11) |
| 5. final dismissal of second appeal at admission stage. (Para 12) |
JUDGMENT
Heard.
2. This second appeal is directed against the judgment and decree dated 28.02.2020 made in A.S.No.78 of 2018 on the file of the Subordinate Judge Tiruchendur confirming the judgment and decree dated 05-04-2018 made in O.S.No.10 of 2016 on the file of the District Munsif Tiruchendur.
3. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court.
4. The plaintiffs, being the widow and children of late N.M.S. Sahul Hameed , claimed that he was the brother of N.M.S. Mohamed Kavdhu, who had purchased the suit property in 1969 and passed away in 1991 as a Muslim. According to them, upon his death, the estate devolved in accordance with Mohammedan law, whereby his widow became entitled to 9/72 share, each of his two daughters to 24/72 share, and his brother, Sahul Hameed, as the residuary heir, to 15/72 share. Since Sahul Hameed died in 1992, his heirs, namely the plaintiffs, claimed succession to his share. Their grievance was that the defendant, who had purchased the entire property in 2004 from Mohamed Kavdhu’s widow and daughters, ignored their lawful entitlement and asserted absolute ownership. The plaintiffs therefore sought partition and separate possession of their 15/72 share.
5. The defendant contested the suit by denying the very relationship between Mohamed Kavdhu and Sahul Hameed, asserting that they were not brothers. He further maintained that, having purchased the property in its entirety from the widow and daughters of Mohamed Kavdhu, he had acquired absolute title. On that basis, he contended that the plaintiffs had no manner of right in the suit property.
6. The trial court framed the main issues as to whether Mohamed Kavdhu and Sahul Hameed were brothers and whether the plaintiffs were entitled to a share under Mohammedan law. Relying on death certificates, prior decrees in O.S. No.66 of 1996, partition deeds, and revenue records, it found that the brotherhood between Kavdhu and Sahul Hameed stood established. Applying the principles of Mohammedan law of succession, the court held that the widow of Kavdhu was entitled to 9/72 share, each of his two daughters to 24/72 share, and the remaining 15/72 share devolved upon his brother, Sahul Hameed, as residuary heir. Since Sahul Hameed had died in 1992, his heirs, namely the plaintiffs, succeeded to his 15/72 share. The court further held that the defendant’s sale deed of 2004 was valid only to the extent of the shares of the vendors—the widow and daughters—and could not affect the plaintiffs’ entitlement. The suit was therefore decreed for partition. On appeal, the findings and decree of the trial court were affirmed, and the appeal came to be dismissed.
7. At the time of hearing, the learned counsel for the appellant confined his submissions to the plea of non-joinder of parties. He contended that the vendors of the appellant, from whom he had purchased the property, were not impleaded in the suit, and that such omission amounted to non-joinder of necessary parties, rendering the very suit for partition not maintainable. He further urged that, since the objection went to the root of maintainability and involved a pure question of law, it could be raised at any stage of the proceedings, even in appeal, irrespective of whether it had been pleaded in the written statement or set forth in the grounds of appeal.
8. The appellant, as defendant in the suit, had not raised the plea of non-joinder either in his written statement or at any stage before the trial court. He did not urge the same before the first appellate court, nor was it even set out
