Sri Satya Sai Seva Samithi, Koduvayur v. Sri Sathya Sai Seva Organisation and Sri Sathya Sai Seva Trust, Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` FRIDAY, THE 1[ST] DAY OF MARCH 2024 / 11TH PHALGUNA, 1945 ``` ``` RSA NO. 697 OF 2023 ``` ``` AGAINST THE DECREE AND JUDGMENT DATED 20.06.2023 IN AS NO.15 OF 2020 ``` ``` ON THE FILES OF THE ADDITIONAL DISTRICT COURT- IV, PALAKKAD AROSE FROM THE DECREE AND JUDGMENT DATED 30.09.2019 IN OS NO.170 OF 2012 ON THE FILES OF THE MUNSIFF COURT, CHITTUR ``` ## **`APPELLANTS/APPELLANTS/PLAINTIFF NO.2 TO 4:`** - **`1 ARAVINDAN CM AGED 73 YEARS`** - **`S/O LATE PC KARUNAKARAN, RESIDING AT 4/798, RATHNA VILLA, KAMMANTHARA, KODUVAYUR POST, CHITTUR TALUK, PALAKKAD DISTRICT, PIN - 678501`** - **`2 JOHNSON A, AGED 82 YEARS S/O LATE ARULAPPAN, AADIBHAVANAM, ETHANUR POST, KODUVAYUR, CHITTUR TALUK, PALAKKAD DISTRICT, PIN - 678502`** - **`3 KRISHNANKUTTY AGED 65 YEARS S/O LATE SANKARANARAYANA GURUKKAL, RESIDING AT KURUKKALAM, PILLAYANDI HOUSE, KODUVAYUR POST, CHITTUR TALUK, PALAKKAD DISTRICT, PIN - 678501`** ``` BY ADVS. SAJAN VARGHEESE K. LIJU. M.P ``` ## **`RESPONDENTS/RESPONDENTS/DEFENDANTS:`** - **`1 SRI SATHYASAI SEVA ORGANISATION REP. BY A.M.PRABHAKARAN, AGED 61, DISTRICT PRESIDENT, "SAI SANNIDHI", SRI SATHYASAI NAGAR, KALLEKULANGARA, PALAKKAD, PIN - 678009`** - **`2 SRI SATHYASAI SEVA SAMITHY REP. BY CONVENOR A RAMAKRISHNAN, AGED 80, S/O LATE AANDI, KALLUKETTUKALAM, CHETTIARPADAM, PALLASENA VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT, PIN - 678505`** ``` 2 ``` ``` R.S.A. No. 697 of 2023 ``` ``` BY ADVS. PRATHEESH.P, S.ABHILASH, ANJANA KANNATH FOR R1 SUNIL KUMAR A.G FOR R2 ``` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON ``` ``` 01.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` R.S.A. No. 697 of 2023 ``` ``` 3 ``` ## **“C.R.”** ## **JUDGMENT** ## **Dated this the 1[st] day of March, 2024** This regular second appeal has been filed under order XLII Rule 1 read with Section 100 of the Code of Civil Procedure (“CPC” hereinafter) challenging the decree and judgment in A.S. No.15 of 2020 dated 20.06.2023 on the files of the Court of the Additional District Judge-IV, Palakkad arose from decree and judgment in O.S. No.170 of 2012 dated 30.09.2019 on the files of the Munsiff Court, Chittur. The appellants herein are plaintiffs 2 to 4 and the respondents are the defendants in the above suit. 2. Heard the learned counsel for the appellants as well as the learned counsel appearing for the 1st respondent. No representation for the 2nd respondent. 3. Parties in this appeal shall be referred as “plaintiffs” and “defendants” with reference to their status before the trial court. 4. On hearing both sides, this appeal stands admitted by formulating the following substantial questions ``` R.S.A. No. 697 of 2023 ``` ``` 4 ``` ## of law: 1. Whether the trial court is justified in dismissing the suit on finding non joinder, without providing an opportunity to the plaintiffs to implead necessary party, before the dismissal of the suit? 2. Whether the First Appellate Court properly addressed the question of nonjoinder? 5. In this matter, the plaintiffs filed the suit for setting aside Ext.A4 gift deed and for permanent prohibitory injunction. The plaintiffs’ case is that, few residents of Koduvayur including the plaintiffs joined together and formed ‘Sri Satya Sai Seva Samithi, Koduvayur’ to conduct bhajans and other spiritual activities. Thereafter, the official receiver in O.S. No.34/1960, Sub Court, Palakkad Adv.T.M. Parameswaran Namboodiripadu on behalf of the Kurthiravattom Nair Estate executed Ext.A3 gift deed with sanction of the court in favour of Sri Satya Sai Seva Samithi to construct ‘Bhajana Mandiram’. Though, the property was gifted to one Kesavan Nair, who was a member of the Samithi, he had no independent right, title or interest over ``` R.S.A. No. 697 of 2023 ``` ``` 5 ``` the same. Later, Sri. Kesavan Nair had executed a deed of settlement Ext.A4 in favour of Sri Satya Sai Seva Trust, Kerala. Hence, Ext.A4 executed by Sri.Kesavan Nair to be declared as sham, void ab initio, null and void, non est in law and the same did not bind the Satya Sai Seva Samithi, Koduvayur. 6. The 1st defendant filed written statement and resisted the suit. It is contented by the 1st defendant that the receiver of the Ottapalam Sub Court in O.S. No.34/1960, with the permission of the Court had transferred the property in favour of Sri Satya Sai Seva Samithi. Thereafter, then committee members and chairman Sri.Kesavan Nair decided to transfer the property in favour of Sri Satya Sai Seva Trust, Kerala as per Ext.A4 deed. The 1st defendant never raised claim on the property owned by Sri Satya Sai Seva Trust, Kerala and the 1st defendant is not even a member of the said Trust. 7. The 2nd defendant also filed written statement contending that the Sri Satya Sai Seva Samithi, Koduvayur had nothing to do with Satya Sai Trust, Kerala or Satya Sai ``` R.S.A. No. 697 of 2023 ``` ``` 6 ``` Seva Organization. Both defendants raised contention that Sri Satya Sai Seva Trust, Kerala is a necessary party to the suit and the suit is otherwise bad for non-joinder of necessary party. 8. The trial court raised necessary issues and tried the matter. PW1 examined and Exts.A1 to A8 marked on the side of the plaintiffs. DW1 examined and Exts.B1 to B3 marked on the side of defendants. Exts.C1 and C2 were also marked as court exhibits. 9. Finally, the trial court dismissed the suit for non joinder of necessary party. The trial court also found that the plaintiffs are not entitled for any of the reliefs sought for. 10. Though, appeal has been filed challenging the decree and judgment of the trial court vide A.S. No.15/2020, the Appellate Court also dismissed the appeal and concurred the finding of the trial court, giving thrust upon non-joinder of necessary parties. 11. The learned counsel for the plaintiffs submitted that the specific case of the plaintiffs is that, there is no ``` R.S.A. No. 697 of 2023 ``` ``` 7 ``` organization by name Sri. Satya Sai Seva Trust, Kerala. Therefore, the plaintiffs effected paper publication inviting the parties interested to join the suit and contest the matter. But, Sri Satya Sai Seva Trust, Kerala, did not join. Therefore, the plaintiffs proceeded the suit, without impleading Sri Satya Sai Seva Trust, Kerala. 12. The learned counsel appearing for the 1st respondent submitted that the plaintiffs did not effect paper publication, specifically highlighting the name of Sri Satya Sai Seva Trust, Kerala. Therefore, the finding of the trial court as well as the Appellate court holding the view that the suit is bad for non joinder of necessary party is perfectly in order. 13. On perusal of the verdicts under challenge, it is emphatically clear that the challenge is against Ext.A4 gift deed executed by Sri.Keshavan Nair, a member of Sri Satya Sai Seva Samithi, Koduvayur in favour of Sri Satya Sai Seva Trust, Kerala. The records of the trial court would go to show that, now the beneficiary to Ext.A4 is Sri Satya Sai Seva Trust, Kerala. Therefore, without impleading Sri Satya ``` R.S.A. No. 697 of 2023 ``` ``` 8 ``` Sai Seva Trust, Kerala, the prayer in the suit could not be considered as rightly found by the trial court as well as the First Appellate Court. But it is shocking to note that the trial court failed to provide opportunity to the plaintiffs to implead Sri Satya Sai Seva Trust, Kerala and to proceed with the suit. The Appellate Court, presided over by a District Judge also failed to take note of this anomaly, though more responsibility and legal acumen to be expected from a District Judge. 14. In the decision reported in **Sankara Pillai v. Baiju and Others [2021 KHC 730 : 2021 KHC OnLine 730 : 2021 (6) KLT 400],** this Court addressed the question as to whether dismissal of a suit, finding nonjoinder is legally permissible, without giving opportunity to the plaintiff to implead necessary party/parties. In the said decision, an earlier decision of this Court reported in **Narayanan Nair v. Rukmini Amma and others, [2017 KHC 863]** was referred, wherein this Court held that no suit could be dismissed for non joinder of necessary parties or proper parties and an opportunity must be given to the ``` R.S.A. No. 697 of 2023 ``` ``` 9 ``` plaintiff to implead the party and to contest the case. 15. In paragraph No.11 of **Sankara Pillai’s** case (supra), this Court held as under: “The vital question to be decided is whether dismissal of a suit or a petition of this nature, finding non- joinder is legally permissible without giving opportunity to the plaintiff or the petitioner to implead necessary party / parties. In this context, it has to be noted that whenever a Court or a Tribunal finds non - joinder of necessary parties, it is absolutely necessary to provide an opportunity to the plaintiff or the petitioner, as the case may be, to implead necessary parties in the proceedings and proceed with the matter. If such an opportunity is given, plaintiff / plaintiffs or a petitioner / petitioners, as the may be, could very well implead all necessary parties and proceed with the matter. If the plaintiff / plaintiffs or the petitioner / petitioners, as the case may be, fails / fail to implead necessary parties found by the Court below or the Tribunal without challenging the finding of non - joinder, it is permissible for the ``` R.S.A. No. 697 of 2023 ``` ``` 10 ``` Court or the Tribunal to dismiss the application. This is a case where after finding non - joinder, may be on a wrong assumption of facts, the Tribunal dismissed the petition without providing opportunity to the petitioner to implead necessary parties and the said dismissal is absolutely erroneous and illegal.” 16. Therefore, in a suit where the Courts found nonjoinder, an opportunity shall be given to the plaintiffs to implead the so called party/parties in the array of defendants in the suit, to proceed further. The dismissal of the suit for non joinder, after completing evidence, without the junction of all necessary parties is not a fair procedure. Therefore, the substantial question of law answered holding that the trial court went wrong in dismissing the suit on finding non-joinder of necessary party. Similarly, the first Appellate Court lost sight of the legal position while dismissing the appeal, by finding non-joinder of necessary party. 17. Since, the relief sought for in the suit would require adjudication after impleading Sri Satya Sai Seva ``` R.S.A. No. 697 of 2023 ``` ``` 11 ``` Trust, Kerala as a party, the verdicts under challenge stand set aside, for the purpose of remanding the matter for adjudicating the matter in issue afresh, after impleading Sri Satya Sai Seva Trust, Kerala as additional defendant in the suit. But, the remand order shall be subject to payment of cost of Rs.10,000/- (Rupees Ten Thousand Only) by the plaintiffs/appellants to the 1st defendant/1st respondent, within a period of ten days from the date of appearance of the parties before the trial court. 18. Parties are directed to appear before the Munsiff Court, Chittur on 25.03.2024. The findings of the trial court and the First Appellate Court on all issues stand set aside and all issues are left open to be decided afresh and liberty is given to all parties to contest and to adduce additional evidence, keeping the evidence already adduced, in tact. 19. It is specifically ordered that, if the cost is not paid as directed, the learned Munsiff is at liberty to dismiss the suit and to close the proceedings. If so, the decree and judgment impugned herein shall stand revived and and the same will be in operation. ``` R.S.A. No. 697 of 2023 ``` ``` 12 ``` Accordingly, this regular second appeal stands allowed as indicated above. **Sd/-** # **A. BADHARUDEEN JUDGE** SK