Allowed

Muraleedharan v. T.Madhu

Kerala HC12 Jun 2014FAO/62/2014

Case brief

AI extract

What is this about?

This appeal challenged a lower appellate court order remanding a partition suit for impleadment of alleged necessary parties based on a potential second marriage. The High Court held the remand was baseless, likely to prolong litigation over trivial shares, and allowed the appeal, directing disposal on merits.

What did the court decide?

The impugned judgment of the lower appellate court setting aside the trial decree and remanding the suit was set aside and the appeal was allowed.

Muraleedharan Vs T.Madhu — Partition | Kerala HC (2014)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

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THURSDAY, THE 12TH DAY OF JUNE 2014/22ND JYAISHTA, 1936

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FAO.No. 62 of 2014 ()

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AS 34/2012 of ADDL.D.C.-II, MAVELIKKARA OS 388/2009 of MUNSIFF COURT,KAYAMKULAM

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APPELLANTS/RESPONDENT 1 TO 3/PLAINTIFF:

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MURALEEDHARAN, AGED 46 YEARS S/O.KRISHNAMOORTHI, KUNNATHALUMOOTTIL, VEMBALIL VEEDU KRISHNAPURAM MURI, KRISHNAPURAM VILLAGE REPRESENTED BY P/A.HOLDER VENU, ATGED 44 YEARS S/O.KRISHNAMOORTHI, ASHOK BHAVNAM RAMACHANDRAPURA MUNNESWARA BLOCK, JALAHALLI P.O. BANGLORE FROM VEMBALILVEEDU, KRISHNAPURAM MURI.

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VENU, AGED 44 YEARS, S/O.KRISHNAMOORTHI, VEMBALILVEEDU KRISHNAPURAM VILLAGE NOW RESIDING AT ASHOKA BHAVAN RAMACHANDRA PURA, MUNNESWARA BLOCK, JALAHALLI P.O. BANGLORE .

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MOHANAN, AGED 44 YEARS S/O.KRISHNAMOORTHI, VEMBALILVEEDU, KRISHNAPURAM MURI KRISHNAPURAM VILLAGE.

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BY ADV. SRI.A.SHAFEEK (KAYAMKULAM)

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RESPONDENTS/APPELLANTS/DEFENDANTS:

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T.MADHU

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S/O.THAMPI, VETTATHU VADAKATHIL, KRISHNAPURAMA MURI KRISHNAPURAM VILLAGE, KRISHNAPURAM P.O. KAYAMKULAM-690 533.

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GOPALAKRISHNAN

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S/O.SIVARAMAN NAIR, VALIYAVILAVEEDU, VENKULAM MURI EDAVA VILLAGE, CHIRAYINKEESHU TALUK-696 311.

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R1 BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) R1 BY ADV. SRI.A.R.DILEEP

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R1 BY ADV. SRI.MANU SEBASTIAN

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THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 12-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DL/

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B.KEMAL PASHA, J.

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F.A.O. No.62 of 2014

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Dated this the 12^th day of June, 2014

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~ ~ ~ ~ ~ ~ ~ ~ ~

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The defeated 1^st defendant in a suit for partition

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filed by the plaintiffs as O.S. No.388/2009 before the Munsiff's Court, Kayamkulam, has preferred an appeal as A.S. No.34/2012 before the Additional District Court, Mavelikkara. The learned Additional District Judge has chosen to set aside the preliminary decree and judgment passed by the trial court and to remit the matter to the trial court with a direction to the plaintiffs to implead some other parties in the suit and also by permitting the 1^st defendant to amend the written statement. It seems that an open remand has been made. Aggrieved by the said remand, the plaintiffs have come up in appeal.

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Late Sivaraman Nair, who is the grandfather of the appellants, had 20 cents of property, out of which he had

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FAO.62/2014

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: 2 :

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sold 6 cents of property. Out of the remaining extent of 14

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cents, after the death of Sivaraman Nair, the 2^nd defendant, who is one of the sons of Sivaraman Nair, sold 4 cents of property. Thereafter, an extent of 10 cents of property remained. The same is the plaint schedule property in this case, on which partition has been claimed. The 2^nd defendant has illegally and unauthorisedly sold the plaint schedule property to the 1^st defendant as per Ext.A3 sale deed dated 23.10.2001.

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Sivaraman Nair had a daughter named Rajamma, who is none other than the mother of the appellants, another daughter named Santhamma, who died unmarried and issueless and one son Gopalakrishnan who is the 2^nd defendant. On the death of Sivaraman Nair, the said property devolved on Rajamma and Gopalakrishnan in equal shares. Rajamma died 34 years back to the suit and on her death, her half 'oodukur' right over the property devolved on her husband Krishnamoorthi and her 3

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FAO.62/2014

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: 3 :

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children, who are the appellants herein. On the death of Krishnamoorthi, according to the appellants, the half 'oodukur' right of Rajamma over the plaint schedule property devolved on the appellants alone and none else.

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The 1^st defendant resisted the suit by filing a written statement contending, inter alia , that the suit is bad for non-joinder of necessary parties and that the appellants are not entitled to any share over the plaint schedule property based on an arrangement in the family.

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The trial court found that the suit is maintainable and is not bad for non-joinder of necessary parties and the trial court further found that the appellants are entitled to get

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half right over the property and thereby a preliminary judgment and decree were passed by ordering partition of the property by meets and bounds. It seems that the 1^st defendant had filed I.A. No.675/2013 before the lower appellate court seeking an amendment of his written statement for incorporating necessary plea for non-joinder of

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FAO.62/2014

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: 4 :

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necessary parties and also by showing the details of such parties, who were sought to be impleaded by the 1^st defendant. The lower appellate court has dismissed the said I.A. The said I.A. was filed by projecting a ground that after the death of Rajamma, her husband Krishnamoorthi had married another woman named Omana Amma, in whom 4 daughters were born to Krishnamoorthi and, therefore, the said Omana Amma and her daughters along with the appellants would be entitled to the share to which Krishnamoorthi is entitled out of the share of Rajamma.

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The 1^st defendant is admittedly a purchaser of the plaint schedule property from the 2^nd defendant through Ext.A3 sale deed dated 23.10.2001. Even though the lower appellate court has dismissed I.A. No.675/2013, it has chosen to allow the appeal and set aside the judgment and decree passed by the trial court and to remit the case to the trial court by directing the appellants herein to implead necessary parties in the suit and allowing the 1^st defendant

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FAO.62/2014

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: 5 :

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to amend his written statement.

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Heard the learned counsel for the appellants

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Sri.A.Shafeek and the learned counsel for the respondent Sri.George Varghese.

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The learned counsel for the appellants has argued that there was no reason at all for the court below to pass a remand order as the one passed in this case and the present remand cannot be one as contemplated under Order XLI Rules 23 and 23A. The learned counsel for the respondent has strenuously attempted to support the impugned judgment by taking a stand that if necessary parties are not impleaded, it could have a repercussion as far as his rights over the property is concerned.

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It is evident that either Ext.A3 sale deed or the earlier sale deed in respect of 4 cents of property executed by the 2^nd defendant are not binding on the rights of the appellants over the plaint schedule property. At the same time, as far as the 4 cents of property, which was sold away

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FAO.62/2014

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: 6 :

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by the 2^nd defendant much earlier, is concerned, the appellants are not claiming any right over it at present. The claim for partition is confined to the remaining 10 cents of property, which was ultimately sold by the 2^nd defendant to the 1^st defendant on 23.10.2001 through Ext.A3 sale deed.

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The learned counsel for the respondent has invited the attention of this Court to various questions put by the learned counsel for the 1^st defendant to PW1 in order to bring out that Krishnamoorthi had married Omana Amma in whom Krishnamoorthi has got 4 daughters. Those assertions were denied by PW1. The appellants have taken a consistent stand that Krishnamoorthi had no second marriage as alleged and he has no daughters in any such second marriage. It seems that such a specific plea was not taken up before the trial court, by the defendants. Apart from incorporating a stray sentence in the written statement that the suit was bad for 'non-joinder', it was not even pleaded that the suit was bad for 'non-joinder of necessary

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FAO.62/2014

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: 7 :

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parties'. The particulars as to how the suit happened to be bad for such non-joinder were also not seen stated in the written statement. It was only during the pendency of the appeal, wisdom prevailed on the 1^st defendant to put forward a contention regarding such non-joinder of necessary parties by showing the details of persons who were to be impleaded. Apart from making such assertions, there was no formal proof in the matter.

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If at all, Krishnamoorthi had gone into a form of second marriage and he has issues in such second marriage, in no way either the 2^nd defendant or his transferee, who is the 1^st defendant, will be adversely affected by such non-joinder. Admittedly, the 2^nd defendant is entitled to half share over the plaint schedule property and the remaining half share will go to Rajamma and ultimately, to Krishnamoorthi and the appellants. On the death of Krishnamoorthi, his rights will devolve on his legal heirs. Even if any such claimants are there, such claimants can

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FAO.62/2014

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: 8 :

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even in future, point fingers towards the appellants to claim their rights over the property and it is not a concern of the 1^st defendant. Of course, it is a heart burn on the part of the 1^st defendant that he who had purchased 10 cents of property by believing that the same exclusively belonged to the 2^nd defendant, in parting with the half portion of the property. Solely because of such heartburn, the legitimate rights of the appellants over the half portion of the property cannot be denied.

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It seems that the remand made by the court below will pave way for an unending litigation in respect of trivial shares, if at all any such sharers are there. On a calculation, it can be seen that if at all Krishnamoorthi had gone into a second marriage in which he has 4 daughters, the fractional right over the approximate 1.1 cents of property devolved on Krishnamoorthi will go to 8 sharers. In normal course, no such sharer will come up with a claim for getting such 1/8^th share over a meagre extent of 1.1 cents.

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FAO.62/2014

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: 9 :

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True that this attempt by the 1^st defendant is to drag the litigation forward to force the appellants to come to terms. The remand order has resulted in substantial miscarriage of justice and the same has to be undone.

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In the result, this appeal is allowed and the impugned judgment passed by the lower appellate court is set aside. The lower appellate court is directed to dispose of the appeal on merits, quite untrammeled by any of the observations made by the lower appellate court in the impugned judgment. The parties shall appear before the court below on 12.08.2014. There is no order as to costs.

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Sd/- (B.KEMAL PASHA, JUDGE)

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aks/18/06

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// True Copy //

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PA to Judge

Muraleedharan v. T.Madhu

Case brief

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Muraleedharan v. T.Madhu

Case brief

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