KALU AMMA Vs. AMMUKUTTY AMMA

JUDGEMENT

(1.) The appellants are defendants 1 and 2 in the suit. The Civil miscellaneous appeal arises from an order of remand.

(2.) The suit was for a declaration that the plaintiffs were the nearest reversioners of one Kesava Pillai (deceased) and for setting aside an order in O. S. No. 288 of 1950 declaring defendants 1 and 2 as the legal representatives of Kesava Pillai. The Trial Court held that defendants 1 and 2 were the heirs of Kesava Pillai, being his widow and daughter, that the suit was not maintainable as the legal representatives of one Thanu Pillai -- one of the brothers of Kesava Pillai -- were not impleaded and that S.42 of the Specific Relief Act was a bar to the suit. The Trial Court accordingly dismissed the suit. On appeal by the plaintiffs, the lower appellate court set aside the decree and remanded the suit for fresh decision after impleading the heirs of Thanu Pillai. It was however observed by the learned District Judge that he would have agreed with the view that the suit was not maintainable under S.42 of the Specific Relief Act but for the order of remand he made. In the words of the learned Judge, the remand was ordered "in the interests of justice."

(3.) It was urged on behalf of the appellants that this was not a fit case for giving another opportunity for impleading the heirs of Thanu Pillai. The defendants contended in the written statement that the heirs of Thanu Pillai were necessary parties. The position taken by the plaintiffs was that Thanu Pillai had married his wife in the "sambandhom" form and that his children would not therefore acquire any right, as the parties are governed by Hindu Law as modified by custom. It was agreed by both sides in the court below that children by a marriage in "thalikettu" form alone would inherit. They adhered to this position until the suit was dismissed by the Trial Court. One of the grounds taken in appeal was that the children of Thanu Pillai could not be deemed to be his heirs. Another ground was that if it were held that they were heirs, an opportunity may be given to implead them. The question is whether it can be said that the Trial Court wrongly refused to implead these persons.