Thottathil B.Radhakrishnan, J.
1.This AFA remains defective on account of non-impleadment of the legal representatives of two of the respondents.
2.For the purpose of further consideration of this case, we deem it appropriate to minute the following relevant facts:
(a) Plaintiff Radha is the widow of Radhakrishnan, who and defendant Nos.2 to 8 are the children of the first defendant Nani and Kunhiraman. Defendant No.9, Abhilash, is allegedly the illegitimate son of late Radhakrishnan.
(b) The suit filed by Radha for partition was decreed refusing share to Abhilash, defendant No.9.
(c) Defendant No.9 appealed against. Defendant Nos.1 to 8 AFA51/99 -2- also filed an appeal. Ultimately, they stood to support defendant No.9, Abhilash, on the issue that he is also eligible to a share in Radha's estate. The learned single Judge upheld the contentions of the defendants and modified the decree, thereby making allotment in favour of defendant No.9, Abhilash, as well.
3.This AFA is by the plaintiff challenging the common judgment issued in the two first appeals.
4.Now, it is stated that defendant Nos.5 and 7, Sathi and Susheela respectively, died pending the first appeals and, therefore, the learned single Judge could not have decided the appeals on merits, since they stood ill-constituted on the date of final hearing and the common judgment passed in the first appeals stands with death persons on the array of parties. Applications for impleadment, setting aside abatement etc. are filed in the AFA by the legal representatives of the plaintiff, Radha, as she also having died pending the AFA. With this sequence of events, if we are to hold that the judgment passed by the learned single Judge AFA51/99 -3- is a void one on account of non-impleadment of necessary parties and the resultant abatement of the first appeals, we could strike off the common judgment and send the first appeals to the learned single Judge for fresh consideration, in accordance with law.
5.Having regard to the fact that the appeals arise from a suit for partition, one possible way is to find out whether the estate of deceased Sathi and deceased Susheela were adequately represented in the first appeals, and therefore, if we could apply the doctrine of substantial representation, that would prevent further delay. But that appears to be not possible, having regard to the inclusion of different titles which would be relevant for the suit for partition, which has been laid touching rights and divisibility of properties and, in particular, the properties of late Radhakrishnan as well.
6.In the aforesaid facts and circumstances, we hold that the common judgment issued in A.S.Nos.490 and 530 of 1990 dated 22.07.1998 is void, since those appeals were ill-constituted and AFA51/99 -4- had abated. We, therefore, declare that the judgment is void and remit the case for consideration by the learned single Judge to facilitate appropriate applications for impleadment of the legal representatives of deceased defendant Nos.5 & 7 being placed in the first appeals and for further consideration of the first appeals on merits after making them live, provided the learned single Judge is satisfied that the abatement could be set aside. Registry shall list the first appeals for consideration on 08.09.2016 before the learned single Judge as per roster. This will facilitate the parties to make appropriate applications before the learned single Judge. The parties all of whom are appearing in this AFA through respective learned counsel, take notice of such listing of the matter before the learned single Judge. This appeal is ordered accordingly.
(THOTTATHIL B.RADHAKRISHNAN, JUDGE) (P.V.ASHA, JUDGE) jg-2/9