In Partition Suit, Courts Must Ascertain Interested Parties At The Outset; Absence Of Necessary Party Fatal Defect: Kerala High Court

Justice K. Babu held that “absence of a necessary party is a fatal defect, but the absence of a proper party is not” and observed thus:

“The Code of Civil Procedure does not contain any express provision as to who should be considered necessary parties, but it is clear from an examination of the rules of Or.1 of the Code that two conditions must be satisfied so that a party may be considered a necessary party namely; first, there must be a right to some relief against him in respect of the matter involved in the suit and, secondly, his presence is necessary to enable the court, effectually and completely, to adjudicate upon and settle all the questions involved in the suit. A person who is only indirectly or remotely interested is not a necessary party. A person who may be interested in the result of the suit and who may have a right to seek the assistance of the Court in deciding on the point in issue is a proper party in that suit. “

The Court made the above observations in a second appeal preferred in a partition suit. The plaintiff and one Annie were the daughters and the defendant was the son of Kunjuvareed, who died intestate. The plaintiff approached the trial with a partition suit for the partition of the property of their father, Kunjuvareed. The plaintiff did not make Annie a party in the partition suit because she was already given a share in the family property during her marriage.

The plaintiff pleaded that only she and defendant son were entitled to share in the property to be partitioned. The defendant pleaded that only he was entitled to the share in the father's property because even the plaintiff was given share in the family property during the father's lifetime. The Trial Court dismissed plaintiff's suit and held that she was not entitled for a share in her father's property because she had already obtained her share in the family property.

Against this, the plaintiff preferred an appeal. The First Appellate Court relied upon the decision in Mary Roy & Others v. State of Kerala & Others (1986) and stated that the plaintiff, defendant and Annie were entitled to equal shares, that is 1/3^rd share each, in the father's property as per the Indian Succession Act, 1925. However, it did not implead Annie as a party to the suit.

The defendant preferred a second appeal before the High Court. The Court noted that the First Appellate Court should have impleaded Annie to ascertain if she was entitled to any share in the property.

In a partition suit, the Court held that all interested persons contesting for a right in the property were necessary parties and persons who were not interested in the results of the suit or entitled to any share in the property was not necessary party. It thus held that a partition suit cannot be determined in the absence of necessary parties.

“The rights of the parties cannot be judicially determined in the absence of the persons interested in contesting them. The Court is also required to ascertain the property to be partitioned. All persons interested in determining these and other questions that may be raised in a suit for partition are necessary parties. A person who is not interested in the results of the suit or entitled to any share is not a necessary party. Conversely it means that where a person in a suit for partition is interested in its result and is entitled to a share, he must be regarded as a necessary party.”

Relying upon Kanakarathanammal v. V.S.Loganatha Mudaliar and Another (1965) , the Court noted that a suit would be incompetent if heirs of the deceased who would inherit the property were not impleaded. It further stated that it would be fatal if a proper party who was also a necessary party was not impleaded in the suit. The Court thus noted that there was no effective determination of the rights of the parties by the First Appellate Court.

Accordingly, the Court allowed the Second Appeal and remanded the matter back to the First Appellate Court for impleading necessary parties and for consideration of the matter afresh.

Counsel for the appellant: Advocates T. Ramprasad Unni, Rahul Venugopal

Counsel for the respondents: Advocates Dinesh R. Shenoy, Mahesh Menon

Citation: 2023 LiveLaw (Ker) 671

Case title: Joy v Mary

Case number: RSA No. 1118 of 2010

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