Remanded

.M. Geetha v. K.M. Vijayalakshmi

Kerala HC7 Apr 2016RSA/349/2010

Case brief

AI extract

What is this about?

In a partition suit where non-joinder of parties was conceded, the High Court set aside the appellate decree which had treated the property as thavazhi. The matter was remitted to the trial court for fresh disposal after impleading all necessary parties.

What did the court decide?

The impugned judgments set aside and the suit remitted to the trial court for fresh disposal after impleading necessary parties.

.M. Geetha Vs K.M. Vijayalakshmi — Partition | Kerala HC (2016)

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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 P.B.SURESH KUMAR

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THURSDAY, THE 7TH DAY OF APRIL 2016/18TH CHAITHRA, 1938

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RSA.No. 349 of 2010 (G)

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AS 159/2002 of ADDL.DISTRICT COURT,THALASSERY DATED 12-08-2009

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OS 326/1999 of ADDL.SUB COURT, THALASSERY DATED 25-07-2002

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APPELLANTS/RESPONDENTS 2, 3, 4 & 8/DEFENDANTS 2, 3, 4 & 8:

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K.M.GEETHA,D/O.BALAKRISHNAN NAMBIAR,

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AGED 37 YEARS,MANJERINDAVIDA VEEDU,PUTHUR VILLAGE,

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P.O. PUTHOOR,THALASSRY TALUK,KANNUR DISTRICT.

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K.M.REKHA,D/O.BALAKRISHNAN NAMBIAR, AGED 35 YEARS, MANJERINDAVIDA VEEDU,PUTHUR VILLAGE,, P.O PUTHOOR, THALASSRY TALUK,KANNUR DISTRICT.

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K.M.RESHMA,D/O.BALAKRISHNAN NAMBIAR, AGED 32 YEARS,MANJERINDAVIDA VEEDU, PUTHUR VILLAGE, P.O PUTHOOR,THALASSRY TALUK,KANNUR DISTRICT.

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K.M.BALAKRISHNAN NAMBIAR, S/O.GOVINDAN NAMBIAR,, AGED 70 YEARS, MANJERINDAVIDA VEEDU, PUTHUR VILLAGE,P.O PUTHOOR,THALASSERY TALUK,, KANNUR DISTRICT.

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BY ADV. SRI.C.P.PEETHAMBARAN

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RESPONDENTS/APPELLANTS & RESPONDENTS 1, 5, 6 & 7/PLAINTIFFS/DEFENDANTS 1, 5, 6 & 7

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K.M.VIJAYALAKSHMI,W/O.KUNHIKANNAN NAMBIAR,

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AGED 62 YEARS, 'HARISREE NILAYAM',, AYYAPPAN NAGAR,KODULU VILLAGE,P.O KUDULU,, KASARGOD DISTRICT.

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RSA 349/10

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K.M.HARIDAS,AGED 41 YEARS, RESIDING AT -DO-

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K.M.SUMATHI,AGED 41 YEARS, -DO-

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K.M.SIVADAS,AGED 37 YEARS, -DO-

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K.M.SUCHITHRA,AGED 34 YEARS, -DO-

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K.M.KUNHIKANNAN NAMBIAR,AGED 71 YEARS,

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-DO-

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K.M.JANARDHANAN NAMBIAR,AGED 64 YEARS, S/O.K.M.NARAYANAN NAMBIAR,BUILDING SECTION NO.2,, PWD OFFICE,MANANTHAVADY,WYNAD DISTRICT.

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K.M.PRASANTH,'RAMALAYAM',TEMPLE ROAD, P.O CHERUKUNNU,KANNUR DISTRICT.

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THE ASST.EXECUTIVE ENGINEER,WBP T.C, SUB DIVISION,KSEB,KANHIRODE,KANNUR,KANNUR TALUK.

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THE SECRETARY,KSE BOARD, TRIVANDRUM.

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R1-R5 BY ADV. SRI.K.C.SANTHOSHKUMAR

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R1-R6 BY ADV. SMT.K.K.CHANDRALEKHA R9 & 10 BY ADV. SRI.K.M.SATHIANATHA MENON,SC,KSEB

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07-04-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:-

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TGS

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P.B.SURESH KUMAR, J.

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R.S.A. No.349 of 2010

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Dated 7^th April, 2016.

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J U D G M E N T

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This second appeal arises from a suit for partition. Respondents 1 to 6 had instituted the suit alleging that the suit property is the thavazhi property of one Mathu Amma and her children and that they are entitled to partition on that basis. The defendants contended that all the persons who are entitled to share in the suit property are not made parties. They also contended that the suit property is not the thavazhi property of Mathu Amma and her children as claimed by the plaintiffs. The trial court dismissed the suit. The plaintiffs took up the matter in appeal. In the appeal, two additional documents were produced by the plaintiffs invoking Order 41 Rule 27 of the Code of Civil Procedure. The application filed for the said purpose was I.A.No.1854 of 2006. Based on the additional documents produced by the plaintiffs, the appellate court

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RSA No.349 of 2010

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reversed the finding rendered by the trial court as regards the nature of the property and held that the suit property is the thavazhi property as claimed by the plaintiffs. The appellate court also found that the suit is not defective on account of nonjoinder of parties. Consequently, the appellate court decreed the suit as prayed for. Defendants 2, 3, 4 and 8, who are aggrieved by the decision of the appellate court have thus come up in this second appeal.

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Heard the learned counsel for the appellants as also the learned counsel for the respondents 1 to 5.

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It is conceded by the learned counsel for respondents 1 to 5 that all the persons who are entitled to share in the suit property have not been impleaded in the suit. Though the said defect is fatal, the suit being one for partition, I deem it appropriate to afford the plaintiffs an opportunity to pursue their claim after impleading all the necessary parties. The matter, in the circumstances, has to go back to the trial court for the said purpose. Since it is conceded that the suit was instituted without impleading necessary parties, I also

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RSA No.349 of 2010

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deem it appropriate to leave open all the issues.

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In the result, the impugned judgments are set aside and the suit is remitted to the trial court for fresh disposal. The plaintiffs are at liberty to implead all the necessary parties in the suit. The parties are also free to amend their pleadings, if they choose to do so. The trial court shall decide all the issues afresh after affording the parties an opportunity to adduce evidence. The suit being one instituted in the year 1999, I deem it appropriate to direct the trial court to dispose of the suit, as expeditiously as possible. All the interlocutory applications in the appeal are closed.

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Sd/-

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P.B.SURESH KUMAR, JUDGE.

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tgs

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(true copy)

.M. Geetha v. K.M. Vijayalakshmi

Case brief

What is this about?

What did the court decide?

.M. Geetha v. K.M. Vijayalakshmi

Case brief

What is this about?

What did the court decide?

What the court decided

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