High Court of KeralaSingle Judge2022-01-19Dismissed

Padmini Amma.K v. Valsala K K and Rajeevan K K, OP(C) No. 1999 of 2021

Case / Petition Number:OP(C) No.1999/2021

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. BADHARUDEEN
Judgment Date: 2022-01-19
Court Decision / Holding: Original Petition dismissed. The court held that the petitioner is neither a necessary nor a proper party and refused to interfere with the Munsiff’s order denying impleadment. The effect is that the challenge to Exts. P9 and P12 (the execution court’s orders) remains unresolved in favor of maintaining status quo; the Will’s validity and the assignment’s impact remain to be adjudicated in the original suit, but the petitioner cannot compel her joinder as a party.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

Padmini Amma.K

Respondents

Valsala K K
Rajeevan K K

Legal Representation & Advocates

Counsels for Petitioners

• Ashwin Sathyanath (Adv)

Counsels for Respondents

• K. P. Hareendran
• N. Shamna

Case Synopsis & Summary

This High Court of Kerala Original Petition (under Article 227) challenges orders of the executing court in O.S. No. 326/2010. The petitioner, Padmini Amma.K, is the mother of both the plaintiff (A) and defendant (B) in the suit, which arises from Madhavi Amma’s Will that allegedly allocated A schedule property to the plaintiff and B schedule to the defendant, with a boundary-dispute context. The petitioner sought impleadment as the second defendant per Order 1 Rule 10(2) CPC, arguing a family settlement and an assignment deed (No. 1419/2009) gave her some rights to challenge the Will and the plaint property, following loan liability she discharged and subsequent assignment by Madhavi Amma. The trial court (Munsiff) dismissed the impleadment petition. The core issue is whether the petitioner is a necessary or proper party in the litigation, so as to render an effective order and a complete decision. Relying on the classic distinctions between necessary and proper parties (Udit Narain Malpaharia; Razia Begum) and subsequent principles (Moser v. Marsden; Union of India v. Sher Singh), the court held that the petitioner has no present interest in the plaint schedule property and is not a necessary or proper party. Consequently, the original petition is dismissed, and the impugned impleadment attempt is not interfered with.

Provisions of Law Cited

Article 227 of the Constitution of IndiaOrder 1 Rule 10(2) of the Civil Procedure Code (CPC)

Legal Doctrines & Maxims

Necessary party vs proper party distinction; a party without whom no order can be made effectively is necessary; a proper party is one whose absence prevents a complete and final decision but an effective order can still be made without them.
A person must have a direct interest in the subject matter to be joined as a party in a suit.
Liberal construction of 'person interested' in land acquisition (Union of India v. Sher Singh).
Execution of a Will must be proved by the propounder.
Background principles from Razia Begum and Moser v Marsden cited to illustrate scope of party joinder.

Submissions & Arguments

Contentions of Appellants / Petitioners

Counsel for the petitioner contended that under Order 1 Rule 10(2) CPC, impleadment as the 2nd defendant is essential because the petitioner claims rights arising from a family settlement and an assignment deed (No.1419/2009) connected to Madhavi Amma’s Will. She asserts a proprietary or rights-based interest in the plaint A/B schedules that would affect the Will’s interpretation and the boundary claims, and thus cannot be adjudicated fairly without her presence. The petitioner argued that, while the Will may ultimately vest no right in her if proved genuine, any surviving interest or rights bound by the assignment deed must be considered in the light of the Will’s authenticity. Impleading her would ensure a complete, just resolution of the questions surrounding title, scrutiny of the Will, and the validity of the assignment deed.

Contentions of Respondents

The respondents contended that the petitioner has no presently enforceable right over the plaint schedule property and hence cannot be treated as a necessary or proper party. They argued that the suit’s determination should proceed on the existing parties’ rights, and that inclusion of the petitioner would be unwarranted where no direct or substantial interest is demonstrated. They emphasized that the Will’s genuineness, if established, would supersede any ancillary assignment, reducing the petitioner’s potential involvement to a hypothetical or speculative stake. The counter argued that the Court can pass an effective order without the petitioner’s presence, and that impleadment would unnecessarily complicate a boundary and title dispute that hinges on the Will’s validity and assignment deeds.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar & anr.	AIR 1963 SC 786	Positive	Defines the difference between a necessary party and a proper party and is applied by the High Court to assess impleadment.
Razia Begum v. Sahebzadi Anwar Begum & Ors.	AIR 1958 SC 886	Positive	Cited for the principle that a party not directly interested cannot be added as a defendant.
Moser v. Marsden	1892 (1) Ch. 487	Mentioned Only	Cited in Razia Begum’s discussion; used as background authority on joinder but not directly applied by the present decision.
Union of India v. Sher Singh	(1993) 1 SCC 608	Positive	Cited to support liberal interpretation of 'person interested' in proceedings related to land interests.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 19[TH] DAY OF JANUARY 2022 / 29TH POUSHA, 1943** ## **OP(C) NO. 1999 OF 2021** **AGAINST THE ORDER DATED 10.09.2021 IN OS 326/2010 OF** **MUNSIFF COURT, THALASSERY** ## **PETITIONER/PETITIONER/3RD PARTY:** PADMINI AMMA.K AGED 77 YEARS D/O.MADHAVI AMMA, RESIDING AT ANUKRISHNA, P.O.PARAL, THALASSERY TALUK-670671. BY ADV ASHWIN SATHYANATH ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** 1 VALSALA K K D/O.KRISHNAN NAIR, RESIDING AT VAZHA THADATHIL HOUSE, KODIYERI AMSOM DESOM, .P.O.PARAL, THALASSERY TALUK-670671. 2 RAJEEVAN.K.K, S/O.KRISHNAN NAIR, KUNIYIL KATIL HOUSE, KODIYERI AMSOM DESOM, P.O. PARAL, THALASSERY TALUK-670671. BY ADVS. FOR R1 K.P.HAREENDRAN FOR R1 N.SHAMNA THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 07.01.2022, THE COURT ON 19.01.2022 DELIVERED THE FOLLOWING: O.P(C).No.1999/2021 2 ## _**A. BADHARUDEEN, J.**_ ================================ _O.P(C).No.1999 of 2021_ ================================ _Dated this the 19[th] day of January, 2022_ ## _**J U D G M E N T**_ This Original Petition has been filed under Article 227 of the Constitution of India challenging Exts.P9 and P12 orders passed by the execution court (Sub Judge, Kasaragod). The petitioner herein is the mother of 1st and 2nd respondents, who are the plaintiff and defendant respectively in O.S.326/2010. The plaintiff in the above Suit claimed right over the plaint schedule property originally belonged to her grandmother Madhavi Amma on the strength of a Will executed by Madhavi Amma in favour of plaintiff in respect of plaint A schedule item. Plaint B schedule item, as per the said Will, was allotted to the share of the defendant. Based on the Will, the plaintiff sought the relief of fixation of boundary of A and B schedule property. 2. The Suit was proceeded and evidence also completed. O.P(C).No.1999/2021 3 At this juncture, the petitioner herein, who is the mother of the plaintiff and the defendant, filed I.A.No.4 of 2021 and sought for impleadment in the above Suit as 2nd defendant as provided under Order 1 Rule 10(2) of C.P.C. According to the petitioner, Madhavi Amma availed loan from a Co-operative Bank and the liability was discharged by the petitioner. Thereafter, as part of family settlement she had assigned the plaint schedule properties to the defendant in the Suit as deed per assignment No.1419/2009. Therefore, she has the right to challenge the Will and accordingly she is a necessary party to the Suit. 3. The plaintiff filed counter resisting the contention and stating that, at present the petitioner herein had no manner of right over the plaint schedule property. 4. The learned counsel for the petitioner argued at length to convince that the petitioner is a necessary party in the suit. At the same time, he conceded that if the Will is proved to be genuine, the petitioner would not get any right over the plaint schedule property. He also conceded that, if at all any right is vested with the petitioner, the same also assigned as per O.P(C).No.1999/2021 4 assignment deed No.1419/2009. 5. The learned Munsiff considered the rival contentions and found that the petitioner has no manner of right over the plaint schedule property at present. Therefore, the petition filed by the petitioner to implead herself as 2nd defendant was dismissed. 6. Coming to the core issue herein, it could be gathered that it is the duty of the propounder of the Will to prove the Will so as to establish right over the plaint A schedule property. Plaintiff obtained A schedule on the strength of a Will. The defendant also obtained B schedule property on the strength of the same Will. Ignoring the Will, being the legal heir of Madhavi Amma, the plaintiff had executed assignment deed in favour of defendant. If the Will is proved, the assignment deed has no significance. It is the settled law that the execution of the Will must be proved by the propounder. The defendant, who contested the Suit after getting the entire property assigned by the petitioner, resisted the contention and evidence in this case is almost complete. O.P(C).No.1999/2021 5 7. Thus the crucial question emerges is; whether the petitioner is a necessary party or a proper party in this case. 8. While drawing the distinction between a **necessary party** and a **proper party** , a four Judges' Bench of the Apex Court in [AIR 1963 SC 786] _**Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar & anr.**_ held that a necessary party is one without whom no order can be made effectively and a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. 9. In a three Judges' Bench decision reported in [AIR 1958 SC 886] _**Razia Begum v. Sahebzadi Anwar Begum & Ors.**_ wherein taking note of the decision of Lindley LJ in [1892 (1) Ch.487] _**Moser v. Marsden**_ , it was held that a party who is not directly interested in the issues between the plaintiff and the defendant, but is only indirectly or commercially affected, cannot be added as a defendant because the Court has no jurisdiction to bring him on the record even as a proper party. It was held to O.P(C).No.1999/2021 6 have been firmly established as a result of judicial decisions that in order that a person may be added as a party to a suit, he should have a direct interest in the subject matter of the litigation whether it raises questions relating to movable or immovable property. That is not the case here as facts _ipso facto_ would establish. 10. In the decision reported in [(1993) 1 SCC 608], _**Union of India v. Sher Singh**_ it was held by the Apex Court that the definition of a person interested being of inclusive one, the same must be liberally construed so as to implead person who may be directly or indirectly interested either to the title or to the quantum of compensation when dealing with land acquisition reference. 11. Thus going by the settled law, it is not in dispute that **a necessary party in a proceedings is one, without whom no order can be made effectively. Similarly, a proper party is one in whose absence, an effective order can be made, but whose presence is necessary for a complete and final decision** . **on the question involved in the proceedings** O.P(C).No.1999/2021 7 12. Following the settled law as espoused, I do not think that the petitioner, who has no interest in the property at present, is a necessary party or a proper party. It is true that when the petitioner is either a necessary party or a proper party, she should be impleaded in this case. Here, the impleadement of the petitioner is not necessary to decide the case treating her either as a proper party or necessary party. In view of the matter, the learned Munsiff rightly dismissed the petition for impleadment. Therefore, I am not inclined to interfere with the said order produced as Ext.P6. Accordingly, this Original Petition fails and is dismissed. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_ O.P(C).No.1999/2021 8 ## **APPENDIX OF OP(C) 1999/2021** PETITIONER'S EXHIBITS |Exhibit P1|TRUE COPY OF THE PLAINT DATED| |---|---| ||21.07.2010 IN O.S.NO.326/2020 ON THE| ||FILES OF THE HON'BLE MUNSIFF COURT,| ||THALASSERY.| |Exhibit P2|TRUE COPY OF THE WRITTEN STATEMENT| ||DATED 11.11.2010 FILED BY THE 2ND| ||RESPONDENT/DEFENDANT IN O.S.326/2010 ON| ||THE FILE OF THE HON'BLE MUNSIFF COURT,| ||THALASSERY.| |Exhibit P3|TRUE COPY OF THE AFFIDAVIT DATED 08-09-| ||2015 IN SUPPORT OF THE AMENDMENT FILED| ||BY 1ST RESPONDENT/PLAINTIFF.| |Exhibit P4|TRUE COPY OF THE AFFIDAVIT DATED| ||09.07.2021 IN SUPPORT OF I.A.NO.4/2021| ||IN O.S.NO.326/2010 FILED BY THE| ||PETITIONER BEFORE THE HON'BLE MUNSIFF| ||COURT, THALASSERY.| |Exhibit P5|THE TRUE COPY OF THE COUNTER DATED| ||05.08.2021 FILED BY THE 1ST| ||RESPONDENT/PLAINTIFF IN I.A.4/2021 IN| ||O.S.326/2010.| |Exhibit P6|TRUE COPY OF THE ORDER DATED 10.09.2021| ||IN I.A.4/2021 IN O.S.NO.326/2010 BEFORE| ||THE HON'BLE MUNSIFF COURT, THALASSERY.|