Partition – Necessary parties – Children of remarried widow – Non-joinder – Effect. Where a contention is raised that children born to a widow from her remarriage are entitled to a share in the suit property, their non-impleadment goes to the root of the matter, and without such necessary parties on record, no effective adjudication can be made. (Paras 2–4)

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Partition – Necessary parties – Children of remarried widow – Non-joinder – Effect.
Where a contention is raised that children born to a widow from her remarriage are entitled to a share in the suit property, their non-impleadment goes to the root of the matter, and without such necessary parties on record, no effective adjudication can be made.
(Paras 2–4)

Second Appeal – Substantial question of law – Non-joinder of necessary parties.
Non-joinder of necessary parties, even if not framed as an issue or considered by the courts below, constitutes a substantial question of law and can be examined in second appeal.
(Para 4)

Hindu Succession Act, 1956 – Section 24 – Remarriage – Scope – Opening of succession.
Where succession to the property of an intestate opens after the remarriage of a widow, Section 24 may disentitle such widow from succeeding as widow to the property of the intestate; applicability depends on the date of opening of succession and the relationship of the claimant to the intestate.
(Para 4)

Succession – Opening of succession – Relevant date.
Succession opens on the death of the intestate, and the rights of heirs are to be determined with reference to the law and factual situation prevailing on that date.
(Paras 3–4)

Partition suit – Failure to consider statutory bar – Remand.
Where the courts below have failed to consider the applicability of Section 24 of the Hindu Succession Act and the consequent effect on the shares of parties, the decree for partition cannot be sustained and the matter requires fresh adjudication.
(Para 4)

Remand – Scope – Liberty to amend pleadings and adduce evidence.
On remand, parties are to be afforded opportunity to implead necessary parties, amend pleadings, and adduce further evidence, and the trial court must decide all issues afresh, uninfluenced by earlier findings.
(Para 4, Result)

Result – Second Appeal allowed – Judgments set aside – Matter remanded.
(Result)

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B. ANALYSIS OF FACTS

(No facts added beyond the record)

1. Parties and relationship
   The plaintiff (respondent No.1) was the daughter of Velayudhan. The appellant (defendant No.1) and respondent No.2 were brother and sister of Velayudhan.
   (Para 1)

2. Property
   The suit concerned 55 cents of land remaining out of 78 cents originally acquired under Ext.A1 (assignment deed No.3145/1951) by Velayudhan, the appellant, and their father Karappan.
   (Para 1)

3. Deaths and succession pleaded

   • Velayudhan died in 1951.

   • Karappan died in 1958.
     The plaintiff claimed shares through her father and subsequently through her mother Devaki.
     (Para 1)

4. Defence case
   The appellant contended that after Velayudhan’s death, he married Devaki (widow of Velayudhan) in 1953 and had four children through her, who were also entitled to shares and were necessary parties to the suit.
   (Paras 1, 3)

5. Decisions of courts below

   • Trial Court dismissed the suit, accepting the appellant’s case.

   • First Appellate Court reversed and granted a preliminary decree for partition.
     (Para 1)

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C. ANALYSIS OF LAW

(Strictly as reasoned by the High Court)

1. Non-joinder of necessary parties

The High Court held that where children born to Devaki from her remarriage were alleged to be entitled to a share, their absence from the party array affected the maintainability of the suit itself. Such non-joinder prevented effective adjudication.
(Paras 3–4)

2. Substantial question of law in second appeal

Even if the issue of non-joinder was not framed or considered by the courts below, the High Court held that it could be examined in second appeal as it constituted a substantial question of law.
(Para 4)

3. Section 24, Hindu Succession Act, 1956

The Court noticed the contention that Devaki’s remarriage prior to the death of Karappan (1958) could attract Section 24, potentially disentitling her from succeeding to Karappan’s share. The Court observed that the courts below had not examined this statutory issue.
(Para 4)

Importantly, the High Court did not decide the applicability of Section 24 on merits, leaving it open for determination by the trial court on remand.

4. Necessity of remand

Given the failure to consider Section 24 and the question of necessary parties, the High Court set aside the judgments of the courts below and remitted the matter for fresh disposal.
(Para 4, Result)

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CONCLUSION / RATIO

Where, in a partition suit, a contention is raised that children born to a widow from her remarriage are entitled to shares, their non-impleadment constitutes non-joinder of necessary parties and raises a substantial question of law. Failure of the courts below to consider such non-joinder and the possible applicability of Section 24 of the Hindu Succession Act vitiates the decree, warranting remand for fresh adjudication.