Unichirakutty Amma vs Krishnan Nair and Others

Joseph, J.—The question for decision is whether respondents 1 to 5 were properly impleaded in the suit as additional defendants 4 to 8. The plaintiff sued for partition and recovery of her share in property gifted to her and her brothers, defendants 1 and 2, by their mother the third defendant. While the suit was pending, respondents 1 to 5 applied for impleading them in the suit on the ground that the property sought to be partitioned belonged to the thavazhi consisting of the third defendant and her descendants. Over-ruling the objections of the plaintiff and defendants 1 and 2, the court below impleaded the applicants, stating that such a course would tend to avoid multiplicity of suits. The plaintiff has therefore filed this civil revision petition.

The order cannot be supported. Respondents 1 to 5 dispute the exclusive title of the plaintiff and defendants 1 and 2 to the property. This is not a suit where the subject-matter is a declaration regarding the status or legal character as in Razia Begum Vs. Sahebzadi Anwar Begum and Others, . It cannot be said that the presence of respondents 1 to 5 is necessary for a proper decision of the suit. Even assuming that they are proper parties--I do not think they are--they cannot be impleaded against the opposition of the plaintiff.

I am in complete agreement with the view laid down in In Re: Kelloth Ibrahim Haji and Others, where it was held that

the court should consider mainly whether the presence of the proposed parties would be necessary for adjudicating upon the questions that are involved in the suit and an order for addition of parties should not be made merely with a view to avoid multiplicity of suits if otherwise their presence is not necessary for determining the real questions involved in the suit.

The same view has been taken by Madhavan Nair J., in C.R.P. No. 523 of 1957 of this Court. Accordingly I hold that respondents 1 to 5 are not necessary parties to this suit. They can establish their rights in a properly framed suit. If respondents 1 to 5 are added, the suit necessarily will have to be converted into one for partition of all the thavazhi properties, as a suit for partial partition may not lie. Under these circumstances there is no justification for adding respondents 1 to 5 as parties. The civil revision petition is allowed and the order of the court below is set aside. In the circumstances I make no order as to costs.