LI Network
Published on: November 21, 2023 at 12:30 IST
The Kerala High Court underscored the distinction between necessary and proper parties in partition suits.
Justice K. Babu clarified that a necessary party is one entitled to relief in the suit, and their presence is essential for the court to effectively adjudicate the matter. Conversely, a person with only remote or indirect interest is not considered a necessary party.
The court, led by Justice K. Babu, emphasized that the absence of a necessary party constitutes a fatal defect, while the absence of a proper party is not as critical. The judgment was delivered in response to a second appeal arising from a partition suit.
The case involved a plaintiff and Annie, daughters, and a defendant, a son, of the deceased Kunjuvareed. The plaintiff initiated a partition suit seeking a share in their father’s property. Notably, Annie was not made a party as she had received a share during her marriage. The trial court dismissed the suit, asserting that the plaintiff had already obtained her share in the family property.
On appeal, the first appellate court ruled that all three siblings were entitled to equal shares in their father’s property, relying on the Indian Succession Act, 1925. However, it did not implead Annie as a party.
The High Court observed that the first appellate court should have included Annie as a party to determine her entitlement to a share in the property. In a partition suit, the court clarified that all interested parties contesting property rights are necessary parties, and the suit cannot be effectively determined in their absence.
The court cited the decision in Mary Roy & Others v. State of Kerala & Others (1986) and stressed that a partition suit requires the inclusion of all interested persons. It noted that determining the rights of the parties and ascertaining the property to be partitioned necessitates the presence of necessary parties.
Referring to Kanakarathanammal v. V.S.Loganatha Mudaliar and Another (1965), the court highlighted the incompetency of a suit if heirs who would inherit the property were not impleaded. The judgment emphasized that the failure to include a proper party, who is also a necessary party, is fatal to the suit.
Consequently, the High Court allowed the second appeal and remanded the case to the first appellate court for the inclusion of necessary parties and a fresh consideration of the matter.
Case Title: Joy v Mary
