Govindan vs Kalarani
2022 Latest Caselaw 4528 Mad

                                                                                     S.A.No. 81 of 2017


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED: 08.03.2022

                                                         CORAM:
                                   THE HONOURABLE Mr. JUSTICE S.S.SUNDAR
                                                     S.A. No.81 of 2017


                1. Govindan
                2. Dhanam                                                              .. Appellants

                                                            Vs.

                1. Kalarani
                2. Kiruthika
                3. Gopi Krishnan                                                     .. Respondents

                (Respondents 2 & 3 are impleaded as party vide Court order dated 16.06.2021
                made in C.M.P. No.5870 of 2021 in S.A. No.81 of 2017)
                      Second Appeal filed is under Section 100 of Civil Procedure Code, 1908,

                against the judgment and decree dated 10.10.2014 made in A.S. No.56 of 2011

                on the file of the Principal District Judge of Salem confirming the judgment and

                decree dated 30.09.2010 made in             O.S. No.102 of 2007 on the file of I

                Additional Sub Judge, Salem.



                                   For Appellants           : Mr. R.Rajaramani
                                   For Respondents          : Mr. S.Kousik
                                                              for K.Sathish Kumar for R2&3
                                                              No appearance for R1

https://www.mhc.tn.gov.in/judis
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                                                                                    S.A.No. 81 of 2017


                                                    JUDGMENT

The unsuccessful defendants in suit in O.S. No.102 of 2007 on the file of

I Additional Sub Court, Salem are the appellants in the above second appeal.

The first respondent in this appeal as plaintiff filed a suit in O.S. No.102 of

2007 for partition of her 1/2 share in suit items 1,2 & 5 and for partition of her

1/4th share in respect of items 3 and 4 of the suit properties.

2. The plaintiff / first respondent is the daughter-in-law of appellants

being the wife of their deceased son. The case of the plaintiff is that items 1 and

2 of the suit schedule are the properties purchased by plaintiff's husband from

first defendant and item 5 of suit schedule is a movable asset in respect of which

the plaintiff claim share along with the mother of plaintiff's husband. As regards

the suit items 3 and 4, it is stated by the plaintiff that they are the ancestral

properties of first defendant and his children. During pendency of appeal, it is

brought to the notice of this Court that respondents 2 and 3 are the children of

first defendant's daughter by name Saraswathi. Since they are also proper and

necessary parties to the suit, this Court allowed the application filed by them to

implead themselves as respondents in this appeal. The respondents 2 and 3 who

are the children of first defendant's daughter are contending before this Court

that suit items 1 and 2 are also ancestral properties and that the first defendant https://www.mhc.tn.gov.in/judis

S.A.No. 81 of 2017

had no right to sell the property in favour of plaintiff's husband as it was

contended by the plaintiff. It is further stated that the respondents 2 and 3 have

already filed a suit in O.S. No.236 of 2017 before the II Additional Sub Court,

Salem, for declaration that the sale deed executed by father of the first

defendant in favour of plaintiff's husband is invalid and for consequential

prayers. The suit is also for partition of their share in all the suit properties

namely Items 1,2,3, and 4. It is admitted that the plaintiff in the present suit is

also a party to the suit in O.S. No.236 of 2017.

3. Having regard to the admitted facts in the present case that the

respondents 2 and 3 who have not been impleaded as parties in the suit are the

children of first defendant's daughter, they are also entitled to a share in the

ancestral properties of first defendant. Since the respondents 2 and 3 are

necessary and proper parties to the suit, this Court is of the view that the suit for

partition is not maintainable as the necessary parties have not been impleaded.

However, the defect in the suit can be rectified by permitting the plaintiff to

implead the respondents 2 and 3 in the suit. Whenever, the Civil Court comes to

the conclusion that the suit is bad for want of necessary and proper parties, it

will be fair to give an opportunity to the plaintiff to implead the necessary and

proper parties so that the lis can be decided without giving room for any https://www.mhc.tn.gov.in/judis

S.A.No. 81 of 2017

complication or multiplicity of proceedings in future. In view of that matter, this

Court is of the view that the second appeal can be allowed on short ground that

the suit in O.S. No.102 of 2007 on the file of Sub Court, Salem is bad for non-

joinder of necessary parties.

4. Though the necessary and proper parties have been properly impleaded

in an application filed now before this Court, this Court is of the view that the

judgment and decree of the Courts below cannot be saved by impleading

necessary parties before this Court in second appeal. Therefore, the proper

course is to either implead the necessary parties or to direct the parties to file a

petition to implead the proper and necessary parties so as to prosecute the suit

for partition more effectively.

5. Having regard to the peculiar circumstances and facts borne out from

the records, this Court is of the view that the second appeal is liable to be

allowed on a short ground that the suit in O.S. No.102 of 2007 is bad for non-

joinder of necessary parties and that the respondents 2 and 3 are entitled to

defend the suit on the basis of available materials after giving sufficient

opportunity to the proposed parties.

6. It is also brought to the notice of this Court that the suit was dismissed https://www.mhc.tn.gov.in/judis

S.A.No. 81 of 2017

as regards item 5 of suit schedule on the ground that the amount had already

been withdrawn. Considering the facts that are brought to the notice of this

Court, this Court is inclined to set aside the order in A.S. No.56 of 2011.

Accordingly, the order passed by the Principal District Judge, Salem in A.S.

No.56 of 2011 is set aside. The matter is remitted back on the file of Sub Court,

Salem. The Sub Judge, Salem, shall dispose of the suit within a period of six

months from the date of receipt of a copy of this order. Considering the fact that

the suit in O.S. No.102 of 2007 is dismissed in respect of Item 5 of the suit

property, it is open to the parties to raise their factual and legal issues with

regard to entire suit property uninfluenced by any of the observations of this

Court in this order. The plaint shall be suitably amended to implead respondents

2 and 3 herein. It is open to the parties to seek joint trial of both suits namely

O.S. No.236 of 2017 and O.S. No.102 of 2007.

7. As a result, this Second Appeal is allowed and disposed of with the

above directions. No costs.

08.03.2022 Index:Yes/No Speaking order / Non speaking order

bkn S.S.SUNDAR. J.,

https://www.mhc.tn.gov.in/judis

S.A.No. 81 of 2017

bkn To:

1.The Principal District Judge of Salem.

2. The I Additional Sub Judge, Salem.

S.A. No. 81 of 2017

08.03.2022

https://www.mhc.tn.gov.in/judis