Allowed

K.M.Muraleedharan v. K.M.Anandakumari

Kerala HC27 Sept 2021FAO (RO)/165/2016

Case brief

AI extract

What is this about?

In a first appeal challenging a remand order in a partition suit, the High Court held that since the suit was not maintainable due to non-joinder of necessary parties, the appellate court erred in adjudicating other issues. The appeal was allowed, remanding the matter to the trial court on an open remand to dispose of the original suit untrammelled by previous observations.

What did the court decide?

The appeal was disposed of directing the trial court to dispose of the original suit untrammelled by observations in the first appellate order.

K.M.Muraleedharan Vs K.M.Anandakumari — Partition | Kerala HC (2021)

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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.SOMARAJAN

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MONDAY, THE 27^TH DAY OF SEPTEMBER 2021 / 5TH ASWINA, 1943

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FAO (RO) NO. 165 OF 2016

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AGAINST THE JUDGMENT AND DECREE DATED 05/04/2016 IN AS 244/2014 OF

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II ADDITIONAL SUB COURT, THRISSUR

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AGAINST THE JUDGMENT AND DECREE DATED 28/11/2012 IN OS 13/2011 OF

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MUNSIFF COURT, WADAKANCHERY

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APPELLANTS/RESPONDENTS 1 & 2/PLAINTIFFS 1 & 2:

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1 K.M.MURALEEDHARAN, AGED 68 YEARS, S/O. DEVAKIKUTTY AMMA, KELATHPAKAVATH, TIRUVILWAMALA VILLAGE, PATTIPARAMBU DESOM, TALAPPILLY TALUK, THRISSUR DISTRICT-680588.

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2 K.M.GOPINATHAN, AGED 72 YEARS, S/O. DEVAKIKUTTY AMMA,KELATHPAKAVATH, TIRUVILWAMALA VILLAGE,PATTIPARAMBU DESOM, TALAPPILLY TALUK,THRISSUR DISTRICT, NOW RESIDING AT NO.313, 1ST FLOOR, 24 MAIN, VI^TH PHASE, J P NAGAR, BANGALORE-560078.

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BY ADVS.

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SRI.R.SREEHARI SRI.P.B.KRISHNAN SRI.SACHIN VYAS

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RESPONDENT/APPELLANT 1 TO 4 AND RESPONDENTS 3 TO 8/DEFENDANTS 2 TO 4, SUPPL 9TH DEFENDANT, 3RD PLAINTIFF AND DEFENDANTS 1,5 TO 8:

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1 K.M.ANANDAKUMARI, AGED 70 YEARS, D/O. DEVAKIKUTTY AMMA,KELATHPAKAVATH, TIRUVILWAMALA,THRISSUR DISTRICT AND NOW RESIDING AT SHREYAS,NO.11, SAKTHI NAGAR, 1ST MAIN ROAD,VIJAYANAGAR, VELACHERI, CHENNAI-600042.

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2 K.M.VIJAYAKUMARY, AGED 65 YEARS, D/O. DEVAKIKUTTY AMMA,KELATHPAKAVATH, TIRUVILWAMALA,THRISSUR DISTRICT AND NOW RESIDING AT PLOT NO.5, MADHAVA GOKULAM, ANIE BESANT STREET, VIJAYALEKSHMIPURAM, AMBATUR, CHENNAI-600058.

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3 K.M.VANAJAKUMARI, AGED 63 YEARS, D/O. DEVAKIKUTTY AMMA & W/O. A.V.MENON, KELATHPAKAVATH, TIRUVILWAMALA,

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FAO (RO) NO. 165 OF 2016 2

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THRISSUR DISTRICT AND NOW RESIDING AT PRAVESH, 33-4, SUDHA COLONY, KATTUR, METTUPALAYAM-641305, TAMIL NADU.

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4 VIJAYAKUMAR, AGED 60 YEARS, S/O. DEVAKIKUTTY AMMA,KELATHPAKAVATH,PATTIPARAMBU DESOM, TIRUVILWAMALA VILLAGE,TALAPPILLY TALUK, THRISSUR DISTRICT-680588.

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5 K.M.AJITHA KUMARI, AGED 58 YEARS, D/O. DEVAKIKUTTY AMMA, KELATHPAKAVATH,PATTIPARAMBU DESOM, TIRUVILWAMALA VILLAGE,TALAPPILLY TALUK, THRISSUR DISTRICT-680588.

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6 RETHNA KUMARY, AGED 75 YEARS D/O. DEVAKIKUTTY AMMA, KELATHPAKAVATH,'MYTHRI', PATTIPARAMBU DESOM, TIRUVILWAMALA VILLAGE,TALAPPILLY TALUK, THRISSUR DISTRICT-680588.

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7 SANTHA SUKUMARAN, AGED 65 YEARS, W/O. LATE K.M.SUKUMARAN, NEDUVELI HOUSE, PALLASSANA DESOM, KOLLANGODE TALUK, PALAKKAD DIST, PIN-678505.

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8 KRISHNAKUMAR, AGED 43 YEARS S/O. GOPI, KINATTINKARA, PATTIPARAMBU DESOM, TIRUVILWAMALA, THRISSUR DISTRICT-680588.

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9 KARTHIK (MINOR), AGED 14 YEARS, S/O. KINATTINKARA KRISHNAKUMAR, PATTITHARA, THIRUVILWAMALA, THRISSUR.

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10 KAUSAK (MINOR), AGED 12 YEARS AGED 12 YEARS, S/O. KINATTINKARA KRISHNAKUMAR, PATTITHARA, THIRUVILWAMALA, THRISSUR.MINORS 9 & 10 ARE REPRESENTED BY THEIR GRAND MOTHER SANTHA SUKUMARAN, NEDUVELI HOUSE, PALLASSANA DESOM, KOLLANGODE TALUK, PALAKKAD DIST, PIN-678505.

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BY ADVS. SRI.O.P.NANDAKUMAR SRI.P.JAYARAM SRI.V.P.REGHURAJ SRI.K.R.SANTHOSH KUMAR SRI.V.SHYAM

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THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR ADMISSION ON 27.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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FAO (RO) NO. 165 OF 2016 3

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JUDGMENT

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Whether the first appellate court is justified in

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adjudicating the various disputes involved in the suit, when the suit is found to be not maintainable due to non-joinder of necessary parties.

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Aggrieved by the order of remand in a suit for

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partition, the plaintiffs who suffered the order of

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remand came up, on the ground that originally the

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suit was decreed by the trial court for partitioning

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the property into 27 equal shares by metes and bounds. But, it was reversed by the first appellate

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court on the ground of non-joinder of necessary

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parties. In spite of finding rendered on the question of non-joinder, the appellate court proceeded with the appeal by adjudicating all other

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issues. When the suit found to be bad for

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non-joinder of necessary parties and remanded to

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implead necessary parties, further adjudication on

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the disputed matters without the juncture of person to be impleaded will not serve any purpose, except

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FAO (RO) NO. 165 OF 2016 4

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causing prejudice to the parties to be impleaded.. Hence, there will be an open remand of the matter to the trial court to consider all questions afresh untrammelled by any of the observations made in the order of first appellate court.

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Hence, the appeal is disposed of directing the

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trial court to dispose of the original suit untrammelled by any of the observations made in the order of the first appellate court. The parties shall appear before the trial court on 12/10/2021.

Sd/-

P.SOMARAJAN

JUDGE

msp

K.M.Muraleedharan v. K.M.Anandakumari

Case brief

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K.M.Muraleedharan v. K.M.Anandakumari

Case brief

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