Pethiru Thankayyan v. Pethiru Bhaskaran and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD TUESDAY, THE 22ND DAY OF MAY 2018 / 1ST JYAISHTA, 1940 SA.No. 254 of 1999 (E) AGAINST THE JUDGMENT AND DECREE DATED 09.03.1998 IN AS NO.395/1990 of III ADDITIONAL DISTRICT COURT, THIRUVANANTHAPURAM AGAINST THE JUDGMENT AND DECREE DATED 31.01.1990 IN OS NO.1036/1988 of PRINCIPAL MUNSIFF'S COURT,NEYYATTINKARA ## APPELLANT/APPELLANT/1ST DEFENDANT: PETHIRU THANKAYYAN, (DIED) RESIDING AT PANCHIVILA VEEDU, NOCHIYOOR DESOM, CHENKAL VILLAGE. (L.HRS. IMPLEADED) ## ADDL.APPELLANT NO.2 LEENA, AGED 42 YEARS, D/O.PONNAMMA, RESIDING AT LEENA SADANAM, PANCHIVILA, NEAR P.H.CENTRE, CHENKAL, VATTAVILA (P.O.) NEYYATTINKARA, THIRUVANANTHAPURAM-695132. ADDL.APPELLANT NO.2 IMPLEADED AS PER THE ORDER DATED 09.12.2016 IN IA NO.2789/2015. BY ADV.SRI.G.S.REGHUNATH ## RESPONDENTS/RESPONDENTS 1 TO 16 - PLAINTIFFS AND DEFENDANTS 2 TO 15: - (*)1. PETHIRU BHASKARAN, RESIDING AT KALLUVILA VEEDU, (DIED) NOCHIYOOR DESOM, CHENKAL VILLAGE. LEGAL HEIRS IMPLEADED 2. MARY PONNAMMA, RESIDING AT PANCHIVILA VEEDU, NOCHIYOOR DESOM, CHENKAL VILLAGE. 3. MARY LALITHAMMA, RESIDING AT -DO(DIED) 4. SNEHAPPU MARY, RESIDING AT -DO(DIED) 5. LOIS LALITHAKUMAR, RESIDING AT VADAKKEKARA PUTHEN VEEDU, KAVALAKULAM DESOM, NEYYATTINKARA VILLAGE. 6. MANUEL BABU CALLED AS VIJAYAKUMAR, RESIDING AT -DO- -DO- 7. MANUEL CHANDRAN, RESIDING AT -DO- -DO- 8. LOIS SANTHA, RESIDING AT -DO- -DO- - (**)9.LOIS SAKUNTHALA, RESIDING AT -DO- -DO(DIED) LEGAL HEIRS IMPLEADED - (#)10.MANUEL RAJU, RESIDING AT -DO- -DO- (DIED) - LRS RECORDED 11. LOIS SASIPRABHA, RESIDING AT -DO- 12. LOIS BEENA, RESIDING AT -DO- -DO- SA.No. 254 of 1999 (E) 2 - (##)13.NALLATHAMPI MANUEL, RESIDING AT -DO(DIED) - LH RECORDED - (***)14.SAMUEL MONY CALLED AS RAGHAVAN, (DIED) RESIDING AT PANCHIVILA PURAYIDOM, NOCHIYOOR DESOM, CHENKAL VILLAGE. - LEGAL HEIRS IMPLEADED - (****)15.NALLATHAMPI, NESAMONY, RESIDING AT (DIED) PANCHIVILA PURAYIDOM, NOCHIYOOR DESOM, CHENKAL VILLAGE. LEGAL HEIRS IMPLEADED 16. MANJU, D/O.MARY LALITHAMMA, RESIDING AT PANCHIVILA VEEDU, NOCHIYOOR DESOM, CHENKAL VILLAGE, NEYYATTINKARA. ## ADDITIONAL RESPONDENTS 17 TO 19:- 17. LALITHA, W/O.PETHIRA BHASKHARAN, KALLAVILA VEEDU, NACHIYOOR DESOM, CHENKAL P.O., NEYYATINKARA, THIRUVANANTHAPURAM-695132. 18. BEELA. L., D/O.PETHIRA BHASKHARAN, KALLAVILA VEEDU, NACHIYOOR DESOM, CHENKAL P.O., NEYYATINKARA, THIRUVANANTHAPURAM-695132. 19. LIBA.L., D/O.PETHIRA BHASKHARAN, KALLAVILA VEEDU, NACHIYOOR DESOM, CHENKAL P.O., NEYYATINKARA, THIRUVANANTHAPURAM-695132. - (*)THE LEGAL HEIRS OF DECEASED R1 ARE IMPLEADED AS ADDITIONAL RESPONDENTS 17 TO 19 AS PER ORDER DATED 6.3.18 IN I.A.251/2017. ## ADDITIONAL RESPONDENTS 20 TO 22:- 20. RAJU, VADAKKEKKARA PUTHENVEEDU, KAVALAKULAM DESOM, NEYYATINKARA, THIRUVANANTHAPURAM-695121. 21. ASWATHY. S., D/O.LOIS SAKUNTHALA, VADAKKEKKARA PUTHENVEEDU, KAVALAKULAM DESOM, NEYYATINKARA, THIRUVANANTHAPURAM-695121. 22. AJITH.S., S/O.LOIS SAKUNTHALA, VADAKKEKKARA PUTHENVEEDU, KAVALAKULAM DESOM, NEYYATINKARA, THIRUVANANTHAPURAM-695121. - (**)THE LEGAL HEIRS OF DECEASED 9TH RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 20 TO 22 AS PER ORDER DATED 7.2.2018 IN IA.249/2017 ## ADDITIONAL RESPONDENTS 23 AND 24:- 23. PREMAN, S/O.RAGHAVAN, PANCHIVILA PURAIYDAM, NACHIYOOR DESOM,CHENKAL P.O., NEYYATINKARA, THIRUVANANTHAPURAM. 24. PRIYA, D/O.RAGHAVAN,PANCHIVILA PURAIYDAM, NACHIYOOR DESOM,CHENKAL P.O., NEYYATINKARA, THIRUVANANTHAPURAM. SA.No. 254 of 1999 (E) 3 (***)THE LEGAL HEIRS OF DECEASED 14TH RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 23 AND 24 AS PER ORDER DATED 6.3.18 IN I.A.247/2017. ## ADDITIONAL RESPONDENTS 25 TO 27:- 25. SANTHA, W/O.NESAMONY,PANCHIVILA PURAYIDOM, NACHIYOOR DESOM,CHENKAL P.O., NEYYATINKARA, THIRUVANANTHAPURAM-695 132. 26. SHIBU. N., S/O.NESAMONY,PANCHIVILA PURAYIDOM, NACHIYOOR DESOM,CHENKAL P.O., NEYYATINKARA, THIRUVANANTHAPURAM-695 132. 27. NISHA.N., D/O.NESAMONY,PANCHIVILA PURAYIDOM, NACHIYOOR DESOM,CHENKAL P.O., NEYYATINKARA, THIRUVANANTHAPURAM-695 132. (****)THE LEGAL HEIRS OF DECEASED 15TH RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 25 TO 27 AS PER ORDER DATED 06.3.18 IN I.A.208./2017 (#)THE 10TH RESPONDENT IS DIED AND RESPONDENTS 6 TO 9, 11 AND 12 ARE RECORDED AS LEGAL REPRESENTATIVES OF DECEASED 10TH RESPONDENT AS PER ORDER DATED 06.3.18 ON VIDE MEMO CF 1471/2018 DATED 19.2.2018. (##)THE 13TH RESPONDENT DIED AND RESPONDENTS 6 TO 12 ARE RECORDED AS LEGAL HEIRS OF DECEASED 13TH RESPONDENT AS PER ORDER DATED 6.3.18 VIDE MEMO CF 1471/18 DATED 19.02.2018. R2 BY ADV. SMT.BINDU SREEKUMAR R5 TO R8, R11,R12 & R16 BY ADV. SRI.S.MOHEMED AL RAFI R17 TO R19 BY ADV. SRI.R.S.KALKURA THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06.03.2018, THE COURT ON 22.05.2018 DELIVERED THE FOLLOWING: ## **A.HARIPRASAD, J. -------------------------------------S.A. No.254 of 1999 -------------------------------------Dated this the 22[nd] day of May, 2018** ## **JUDGMENT** This second appeal is filed by the 1[st] defendant in O.S.No.1036 of 1988 before the Principal Munsiff's Court, Neyyattinkara. The suit is one for partition and separation of joint right. It was decreed by the trial court on 31.01.1990 and a preliminary decree for partition was passed. The appellant, aggrieved by the judgment and decree, preferred A.S.No.395 of 1990 before the District Court, Thiruvananthapuram. And it was heard and disposed by the III Additional District Judge vide judgment dated 09.03.1998. The lower appellate court, on reconsideration of the entire issues, dismissed the appeal confirming the judgment and decree passed by the trial court. 2. Short facts in the plaint are thus: Plaint schedule property belonged to Joseph Pethiru, father of the plaintiff. He died in 1959. On his death, his rights devolved on the 4[th] defendant (wife) and children, who are the plaintiff, defendants 1 to 3 and deceased Loice. 4[th] defendant got 1/3[rd] share in the property and the plaintiff, defendants 1 to 3 and Loice together got 2/3[rd] share. On the death of Loice, her right devolved on her husband, the 13[th] defendant and her children, defendants 5 to 12. Defendants 14 2 SA No.254 of 1999 and 15 have some right under the 1[st] defendant and 14[th] defendant had constructed a building in the suit property. Despite demanding partition, the 1[st] defendant was not amenable and therefore the suit for partition. 3. 1[st] defendant/appellant filed a written statement with the following contentions: 2.25 acres of land comprised in survey No.113/1 of Chenkal Pakuthy was owned by the 4[th] defendant, mother of the 1[st] defendant. The said land was originally belonging to Palamthottathu tarwad. Members of that tarwad sold the property to the 4[th] defendant permitting her to redeem the mortgage executed by members of the tarwad. For redemption of mortgage, 4[th] defendant filed O.S.No.1435 of 1122 ME before the Munsiff's Court, Neyyattinkara and obtained a decree. She took delivery of the property through court on 26.09.1956. After delivery, she was in possession and enjoyment of the property. In respect of that property, the plaintiff has no right or possession and therefore it is not partible. Defendants 1 and 4 got jenm right in respect of 3.2 acres comprised in survey No.113/2 of Chenkal Village and they got purchase certificate in respect of that property. They are in possession and enjoyment of the same since long years. While so, 4[th] defendant gifted 60 cents comprised in survey No.113/2 to the 1[st] defendant on 24.08.1988. In continuation of the prior possession, 1[st] defendant keeps possession of the same. Vasudevan Pillai Ayyappan Pillai got 1.58 acres as B schedule in the partition deed No.3946 of 1122 ME. After his death, the right devolved 3 SA No.254 of 1999 on his wife Lekshmi Pilla Karthiyayani Amma and daughter Padmakumari Amma. They assigned their rights to the 1[st] defendant as per a release deed dated 26.10.1972. As such, the appellant/1[st] defendant got absolute right and possession over 1.58 acres and 60 cents mentioned above, amounting to a total extent of 2.18 acres. That property is not liable to be partitioned. All the persons, who are in possession of the property, are not made parties to the suit. Plaintiff was residing in Karnataka State for the last 25 years. He has no right or possession over the property. There are various buildings in the property and persons in possession thereof are not made parties to the suit. Suit is bad for non-joinder of parties. Plaint claim is not allowable. The suit is liable to be dismissed. 4. Defendants 10 to 12 filed written statement supporting the plaint claims. 5. On the basis of the contentions raised, the trial court framed relevant issues. There was no witness examined on the side of the 1[st] respondent/plaintiff. DWs 1 to 3 testified for and on behalf of the appellant/1[st] defendant. Exts.A1 and A2 are the documents marked on the side of 1[st] respondent and Exts.B1 to B4, on the side of the appellant. 6. Pending the appeal, the appellant died. His legal representative is impleaded as additional 2[nd] appellant. Respondents 1, 9, 10, 13, 14 and 15 died and their legal representatives are impleaded/recorded. 4 SA No.254 of 1999 7. Heard the learned counsel for the additional 2[nd] appellant and the learned counsel appearing for the 2[nd] respondent and the additional respondents 17 to 27. 8. From the records, it is seen that a learned single Judge, while admitting the appeal, raised the following substantial questions of law: (i). When Ext.A1 mortgage admittedly takes in only 83 cents of land, was the plaintiff entitled to claim partition in respect of 1.58 acres of which 83 cents alone is covered by Ext.A1 mortgage? (ii) Even assuming that the plaintiff as a legal heir of Joseph Pethiru, who died in 1959, was entitled to claim the mortgage right under Ext.A1 in respect of 83 cents, when under Ext.B1 the first defendant had purchased jenm rights over the entire plaint schedule property of 1.58 acres including 83 cents covered by Ext.A1 and has been in exclusive possession ever since Ext.B1, was the plaintiff entitled to claim any share over any portion of the plaint schedule property? However, after hearing the counsel on both sides, the questions of law reframed are as follows: (i) If Ext.A2 is a release of equity of redemption by one of the comortgagees (1[st] defendant), does it not extinguish the equity of redemption and consequently extinguishment of the mortgage right of Pethiru over 83 cents in survey No.113/2? (ii) If Ext.A1 does not contain 75 cents in survey No.113/1, can a 5 SA No.254 of 1999 mere statement in Ext.A2 that Pethiru had possession over the property in survey No.113/1 confer any right on Pethiru and plaintiff, who claimed right of partition only under Pethiru? (iii) If the mortgage right of Pethiru over 83 cents in survey No.113/2 is already extinguished by Ext.A2, can plaintiff and supporting defendants claim partition over the said 83 cents in survey No.113/2? (iv) If Pethiru had no pre-existing right over 75 cents in survey No.113/1, can a mere statement in Ext.A2, even if viewed as an admission, confer title on Pethiru over the property? (v) Can Pethiru be in possession of any portion of property in survey No.113/1 in view of the clear evidence that 4[th] defendant has obtained joint title and possession over 2.25 acres in survey No.113/1? Is not his possession, if any, only behalf of 4[th] defendant, his wife? (vi). In a suit for partition should not be the plaintiff proved his title and possession as the 1[st] defendant had denied his right? In such circumstances, does not his abstention from witness box fatal? 9. Learned counsel for the appellant strongly contended that the courts below failed to appreciate the contentions raised by the contestants. According to him, the courts below erred in not finding that the suit for partition could not have been maintained for multiple reasons. It is mainly contended that the plaintiff had no partiable right over the property and therefore the suit is incompetent. Secondly, going by the plaint averments 6 SA No.254 of 1999 itself, it can be seen that certain strangers are occupying various portions of the property scheduled to the plaint. Without impleading them, a simple suit for partition could not be maintained as it is hit by non-joinder of necessary parties. Thirdly, from the averments in the plaint itself it will be clear that a suit for partition simplicitor without a prayer for recovery of possession is not maintainable. Fourthly, the plaintiff failed to establish a pre-existing right and even failed to mount the witness box to establish that he has a partiable right over the property. For all these reasons the suit should have been dismissed. 10. Per contra, learned counsel for the respondents (plaintiff and supporting defendants) would contend that the appeal itself is incompetent as it stood abated on the death of the original appellant (1[st] defendant) and the present additional 2[nd] appellant has no right to prosecute the appeal. That apart, the original 1[st] defendant could not have resisted the suit as he was only a co-owner with the plaintiff. Learned counsel supported the judgments and decrees passed by the courts below to the hilt. 11. Learned counsel for the appellant urged this Court to look into the schedule to the plaint to understand the rival contentions. From the descriptions in the plaint schedule, it can be seen that the property sought to be partitioned is a part and parcel of two survey numbers, viz., 113/1 and 113/2 of Chenkal Village. It is mentioned in the plaint schedule that the total extent of survey No.113/1 is 13.69 acres and that of survey 7 SA No.254 of 1999 No.113/2 is 3 .2 acres. Further description would show that both these properties lie together. Out of 3 acres in survey No.113/1, 75 cents in Panchivilakam purayidom, after setting apart 2.25 acres belonging to Thankayyan, is sought to be partitioned. In survey No.113/2, 1.58 acres of land is sought to be partitioned, which takes in 83 cents of land included in document No.3538 of 1099 M.E. It is interesting to note that the plaintiff did not mount the witness box to prove his right to claim partition. Plaintiff sought to rely on Ext.A1, an otti and kuzhikkanam deed dated 08.08.1102 M.E. executed by Velayudhan Kumaran in favour of Joseph Pethiru. Another document relied on by the plaintiff is Ext.A2 dated 26.10.1972, which is an otti kuzhikkanam deed executed by Lekshmi Pilla Karthiyayani Amma. Apart from producing these two documents, the plaintiff did not produce any material to support his claim, nor did he produce any evidence to identify the property. It is interesting to note that no commission was taken out to identify as to what portion of the total property, having a larger extent, is sought to be partitioned. None of these aspects have been considered by the courts below. As against this infirmity, it is seen from the records that Exts.B1 to B4 produced on the side of the appellant/original 1[st] defendant and testimony of DWs 1 to 3 adduced by him have not been controverted properly. 12. Learned counsel for the appellant contended that the courts below without understanding whether any property is available for partition 8 SA No.254 of 1999 at all, as mentioned in the plaint, simply decreed the suit. 13. Ext.A1 is a document of the year 1927 executed in favour of Joseph Pethiru who is the predecessor-in-interest of the parties. It takes in 83 cents in survey No.113/2 and 114/4. It is brought to my notice that this document does not take in the property included in survey No.113/1. 14. Ext.A2 is a release deed executed by two ladies in favour of the 1[st] defendant. On the basis of this document, learned counsel for the respondents argued that the original appellant could not have contended that he derived the properly not by succession from Joseph Pethiru. There is a mention in Ext.A2 that the deceased 1[st] defendant had derived right over the property by succession from Joseph Pethiru. Learned counsel for the appellant contended that merely because a wrong mention is made in the document, no right could have been claimed by the legal representatives of Joseph Pethiru since he himself had no right over the property at any point of time. It is also contended that a mere admission, which is apparently erroneous, will not confer title on anyone. This legal principle is indubitable. On looking at the schedule to Ext.A2, it can been seen that two items of property included in survey Nos.113/1 and 113/2 are mentioned therein. As pointed out by the learned counsel for the appellant, there is no material produced to hold that Joseph Pethiru had any right over the property included in survey No.113/1. In the recital portion in Ext.A2, clear mention about Ext.A1 can be seen. It is also 9 SA No.254 of 1999 discernible from Ext.A2 that the assignors therein had filed O.S.No.591 of 1963 before the Munsiff's Court, Neyyattinkara for redemption of mortgage. The suit was filed during the currency of the earlier Limitation Act, 1908 where 60 years had been provided for a suit for redemption. It is therefore clear that the suit was well within the time. In Ext.A2 itself it has been mentioned that their right to redeem the mortgage had been barred by limitation. However, merely on account of producing Ext.A2, the plaintiff could not have succeeded in claiming a partition. 15. Learned counsel for the appellant contended that the lower appellate court was clearly misled by the mentioning in Ext.A2 that the 1[st] defendant had succeeded to the estate of Joseph Pethiru and therefore, the property could have been partitioned. It is pointed out that recitals in Ext.A2 are palpably wrong and the 1[st] defendant could not have inherited the properties from Joseph Pethiru for the sole reason that latter did not acquire any right over the property in survey No.113/1. The lower appellate court failed to take into consideration the fundamental principle that admission in a document cannot confer title, if either the grantor or grantee does not have the same. 16. It has been mentioned by the lower appellate court that Ext.B1 indicates that the 1[st] defendant took renewal after the death of Joseph Pethiru. Ext.A2 (Ext.B1) cannot be taken as a renewal document as observed by the lower appellate court especially in the light of the fact that 10 SA No.254 of 1999 the 1[st] defendant acquired the property asserting an independent right. 17. Much reliance has been placed on Ext.B3 series basic tax receipts to assert that the 1[st] defendant was claiming an exclusive right over the property. 18. On the basis of Ext.B4, it was contended by the learned counsel for the appellant that as it is a document executed by the 4[th] defendant in favour of defendants 5 to 13 and they took assignment admitting the fact that the property in survey No.113/1 belonged to 4[th] defendant, defendants 5 to 13 are estopped from contending against the right of 4[th] defendant (mother of the original appellant). From the schedule, it can be seen that property included in survey No.113/1 has been taken as an assignment by defendants 5 to 13 admitting the title of 4[th] defendant. Ext.B6 is the judgment in O.S.No.1435 of 1122 M.E. before the Court of District Munsiff, Neyyattinkara. That was a suit filed by the 4[th] defendant against Krishna Pillai Narayana Pillai and others. Ext.B5 is the decree in the suit. Redemption of property described in plaint B schedule to the suit along with certain buildings had been sought for in the suit which was granted. The suit pertained to the properties in survey No.113/1 having a total extent of 13.64 acres. All these documents fortify the case of appellant that Joseph Pethiru had no right over the properties included in survey No.113/1, so much so partition thereof could not have been granted. 11 SA No.254 of 1999 19. Ext.B2 is a gift deed executed by the 4[th] defendant in favour of 1[st] defendant in respect of 60 cents in survey No.113/1 and 113/2. No step was taken by the plaintiff to identify the property described in the plaint schedule, leaving it to the imagination of the courts dealing with the facts to find out as to which property could be partitioned. As pointed out by the learned counsel for the appellant, there was no attempt at all on the part of the plaintiff to establish his right to get a partition of the properties and also to show which property was liable to be partitioned. 20. Relying on Section 60 of the Transfer of Property Act, 1882, learned counsel for the appellant contended that right of a mortgagor to redeem conferred by the Section could be extinguished by the act of the parties or by the decree of a court. This is evident from the proviso to the Section. It is clear from the documents produced on the side of the appellant that by the act of parties, the right of redemption, if any, survived had been extinguished by Ext.A2 document. 21. Learned counsel for the appellant contended that Joseph Pethiru could not have claimed right in respect of any property included in survey No.113/1 in view of the clear evidence that the 4[th] defendant had obtained joint title and possession over 2.25 acres of land in the said survey number. If at all he had any possession, it could have only been as husband of the 4[th] defendant. Reliance is placed on **Sarojini v. Santha Trading Co. & Others (1969 KLT 412)** to contend that a mere recital that 12 SA No.254 of 1999 the property belonged to both the husband and wife will not convey any right of the wife in the property to the husband. It is further contended that though a suit for redemption, viz., O.S.No.591 of 1963, was filed in time, the right of redemption was extinguished only by the act of parties and therefore, the mortgage right was also extinguished. It is therefore contended that the plaintiff and the supporting defendants have no right over the properties inaccurately described in the plaint schedule and on that score, the suit has to be dismissed. 22. Even though the learned counsel for the respondents strongly resisted the arguments advanced by the learned counsel for the appellant, I am of the view that the plaintiff and the supporting defendants failed to establish their right in respect of the property scheduled to the plaint. That apart, by virtue of Ext.B4, defendants 5 to 13 are estopped from raising contentions against the title of the 4[th] defendant over the property included in survey No.113/1 because they have admitted her title and accepted transfer of property. 23. Another contention raised by the learned counsel for the respondents is that the appeal is liable to be dismissed as abated. It is seen from the records that I.A.No.2789 of 2015 has been filed by the additional 2[nd] appellant to get herself impleaded. Along with the application, she had produced two documents to substantiate her claim to be impleaded. It is averred in the affidavit that the original appellant, 2[nd] 13 SA No.254 of 1999 respondent and father of the additional 2[nd] appellant had executed a settlement deed dated 09.03.2000 in her favour and in favour of her husband Jayakumar. Document No.1 produced along with the application is the settlement deed. Subsequently, additional appellant's husband released all his rights in the property as per another document dated 27.02.2015 which is produced as document No.2 along with the application. According to the additional appellant, these documents would show her interest in the property sought to be partitioned. It is further averred in the affidavit that much before the original appellant's death, he along with others had assigned the property in the name of the additional appellant and therefore at the time of his death, he had no right left in the scheduled properties. 2[nd] respondent was the only surviving legal heir of the original appellant and as she was already in the party array, there is no abatement. Since the original appellant and 2[nd] respondent and another person had transferred their right in favour of the additional appellant, she has to be impleaded for continuing the litigation and there is no question of abatement arising in this case. 24. Learned counsel for the contesting respondents relying on **Goutami Devi Sitamony v. Madhavan Sivarajan (AIR 1977 Ker. 83)** contended that the additional appellant cannot come on record by invoking Order XXII Rule 10 of the Code of Civil Procedure, 1908 (in short “the Code”) in view of the scheme of Order XXII of the Code because an 14 SA No.254 of 1999 assignee can make an application for leave to continue the suit so long as there is a suit. In this case, the appeal has been abated and therefore application under Order XXII Rule 10 of the Code was incompetent at the instance of the additional appellant. 25. This contention was rebutted by the learned counsel for the appellant by contending that first of all there is no abatement because 2[nd] respondent, who was the legal representative of the deceased original appellant was in the party array. Reliance is placed on **Mahabir Prasad v. Jage Ram and others (AIR 1971 SC 742)** wherein it has been held that where in a proceeding a party dies and one of the legal representatives is already on record in another capacity (as a respondent) it is only necessary that he should be described by an appropriate application made in that behalf that he is also in the record as a heir and legal representative. Even if there are other heirs and legal representatives and no application for impleading them was made within the period of limitation prescribed under the Limitation Act, 1963, the proceedings will not abate. The plea by the respondents that the appeal is abated cannot be sustained in the light of the fact that the 2[nd] respondent was present in the party array and also that the assignment in favour of the additional appellant was much before the death of the original appellant. 26. Having regard to the facts and circumstances and the materials placed before this Court, I am of the view that the courts below 15 SA No.254 of 1999 committed a serious error in decreeing the suit without the plaintiff establishing his right to claim partition. In the absence of adducing any oral evidence to substantiate the right to get a partition and identity of the property sought to be partitioned, the courts below, merely relying on some observations in Ext.A2, granted partition which is per se unsustainable. Having regard to the facts and circumstances, I am of the view that the substantial questions of law framed are to be answered in favour of the appellant, thereby resulting in allowing the appeal and dismissing the suit. In the result, the appeal is allowed. The impugned judgments and decrees passed by the courts below are set aside. Suit is dismissed. There is no order as to costs. All pending interlocutory applications will stand closed. ## **A. HARIPRASAD, JUDGE.** **cks** 16 SA No.254 of 1999 ## **A.HARIPRASAD, J.** **S.A.No.254 of 1999** ## **JUDGMENT** **22[nd] May, 2018**