Holding

A judgment is liable to be recalled if the parties against whom it is passed were not served, and the appeal may then be heard on its merits.

Summary

The Supreme Court entertained a miscellaneous application seeking recall of its own judgment dated 03.01.2024 in Civil Appeal No. 37 of 2024 on the ground that the respondents had not been served and therefore did not appear. The Court held that non‑service justified recalling the judgment and ordered the appeal to be taken on board. The substantive appeal concerned a suit for declaration of title, an alleged oral partition, a will, and the alleged non‑joinder of co‑owners. The Court found that the will was not proved under the Indian Evidence Act, the oral partition was not established, and the suit was bad for non‑joinder of necessary parties. Consequently, the High Court’s judgment was set aside, the findings of the trial and first appellate courts were confirmed, and the suit was dismissed. No order as to costs was made.

Issues considered

Whether a judgment may be recalled when the respondents were not served
Whether the appeal can be taken on board after recall of the judgment
Whether the will dated 16.07.2003 is proved under Section 68 of the Indian Evidence Act, 1872 and Section 63 of the Indian Succession Act, 1956
Whether an oral partition of the disputed property was proved
Whether the suit is bad for non‑joinder of necessary parties
Whether the High Court’s judgment conforms to Section 100 of the Code of Civil Procedure, 1908

Legislation cited

Headnote

Issue for Consideration Matter pertains recall of judgment of this Court on the ground that the respondents in the appeals were not served. Headnotes† Suit – Matter pertaining to suit for declaration – Judgment/orders by this Court – Recall of judgment on respondents in the appeal not served: Held: In view of non-appearance of the parties for not being served, judgment is recalled. [Paras 1-2] List of Keywords Recall of judgment; Non-appearance of parties; Respondents not served. Case Arising From CIVIL APPELLATE JURISDICTION: Miscellaneous

Subjects

Recall of judgmentNon‑appearance of partiesRespondents not servedOral partitionWill proofNon‑joinder of partiesCivil ProcedureEvidence

Judgment

[2025] 4 S.C.R. 829 : 2025 INSC 508

Rajendhiran
v.
Muthaiammal @ Muthayee & Ors.**
(Miscellaneous Application No. 719 of 2025
in
Civil Appeal No. 37 of 2024)
15 April 2025
[Vikram Nath* and Sandeep Mehta, JJ.]

Issue for Consideration
Matter pertains recall of judgment of this Court on the ground that
the respondents in the appeals were not served.

Headnotes†
Suit – Matter pertaining to suit for declaration – Judgment/orders
by this Court – Recall of judgment on the ground that the
respondents in the appeal not served:
Held: In view of non-appearance of the parties for not being served,
judgment is recalled. [Paras 1-2]

List of Keywords
Recall of judgment; Non-appearance of parties; Respondents not
served.

Case Arising From
CIVIL APPELLATE JURISDICTION: Miscellaneous Application
No. 719 of 2025
In
Civil Appeal No. 37 of 2024
From the Judgment and Order dated 03.01.2024 of the Supreme
Court of India in CA No. 37 of 2024

* Author
** Ed Note: Judgment reported in Rajendhiran v. Muthaiammal @ Muthayee & Ors. Civil Appeal No. 37 of
2024, dated 03.01.2024 was recalled. The appeal (Civil Appeal No.37/2024) is taken on board and is
allowed in terms of the judgment dated 15 April 2025.
830 [2025] 4 S.C.R.

Supreme Court Reports

Appearances for Parties
Adv. for the Applicant:
M.P. Parthiban, Ankur Prakash, Mrs. Priyanka Singh, Bilal Mansoor,
Shreyas Kaushal, S. Geyolin Selvam, Alagiri K.
Adv. for the Non-Applicants:
M.A. Chinnasamy.

Judgment / Order of the Supreme Court

Order

1. This application is filed by the applicant(s)/respondent(s) seeking
recall of judgment dated 03.01.2024 passed in the instant Civil Appeal
on the ground that the respondents in the appeal were not served.
2. Having considered the grounds taken for non-appearance, we are of
the view that the application deserves to be allowed. Accordingly, the
application is allowed and the judgment dated 03.01.2024 is recalled.
3. The appeal is taken on board.
4. Having heard both sides, we allow the Civil Appeal, in terms of the
signed reportable judgment.

Judgment

Vikram Nath, J.

1. Leave granted.
2. This appeal, by the defendants, assails the correctness of the
judgment and order dated 28.07.2022 of the High Court of Judicature
at Madras whereby the Second Appeal No.351/2021 filed by the
plaintiff was allowed and the concurrent judgments of the Trial Court
and the Sub-Judge dismissing the suit of the plaintiff-respondents
were set aside and the suit was decreed.
3. Facts in nutshell are :
3.1 The respondent instituted a suit before the Munsiff Court,
Tiruchengode registered as OS No.200/2011 claiming relief of
[2025] 4 S.C.R. 831

Rajendhiran v. Muthaiammal @ Muthayee & Ors.

declaration that the sale deed dated 10.02.2011 executed by
the first defendant in favour of second defendant was null and
void and to declare that suit property belonged to the plaintiffs
and further for relief of an injunction against the defendants.
3.2 According to the plaint case, the property in question originally
belonged to one Avinashi Gounder who had four sons namely,
Arunachalam, Arumugam, Ramasamy and Palaniyappan.
Plaintiff No.1 is the wife and plaintiff no.2 is the adopted
son of Arunachalam. The first defendant is the daughter of
Palaniyappan and the second defendant is the vendee of the
suit property from defendant no.1.
3.3 According to the plaintiffs, the four brothers had entered into
an oral partition and the suit property came to the share of
Arunachalam. Subsequently Arunachalam on 16.07.2003, had
executed a will whereby the suit property and other properties
belonging to Arunachalam were bequeathed in favour of the
plaintiffs. Upon the death of Arunachalam on 30.04.2006, the
plaintiffs became the absolute owners of the property in suit.
Further case of the plaintiffs was that plaintiff no.2 and defendant
no.2 were running a partnership business and the property in
suit was offered as a security to the Karur Vysya Bank. It was
the second defendant who had signed the loan papers and
the security papers with the Bank. As the loan amount could
not be repaid by defendant no.2, it was plaintiff no.2 who had
cleared the outstanding loan of the Bank. Further it is claimed
that defendant no.2 clandestinely obtained the sale deed on
10.02.2011 in respect of the suit property from the first defendant.
It was further the case of the plaintiff that the entire property
which was allotted to Palaniyappan (father of defendant no.1)
had been sold by defendant no.1 on 15.07.1981 with specific
boundaries to one Mathiyalagan. It was thus the claim of the
plaintiffs that the defendants would not have any right over
the properties of Avinashi Gounder and that the plaintiffs were
in possession and were cultivating the land in suit but as the
defendant no.2 tried to trespass the suit property on 24.07.2011,
the necessity for filing the suit arose.
3.4 The defendants filed their written statement denying that there
was any oral partition between the sons of Avinashi Gounder
with respect to the suit property. They also denied that plaintiff
832 [2025] 4 S.C.R.

Supreme Court Reports

no.2 was the adopted son of Arunachalam. The defendants
had further pleaded that survey number in question had a total
area of 2.17 cents in which Avanashigounder’s family had 1/3rd
share i.e. 72 cents. These 72 cents were partitioned amongst
the three sons of Avanashigounder namely, Arunachalam,
Ramasamy and Palaniyappan. The fourth son Arumugam had
died issueless and his share was equally shared by the three
brothers. Thus, each brother became entitled to 24 cents.
Palaniyappan, father of defendant no.1 had 24 cents in this
property, out of which 12 cents fell to the share of defendant
no.1, out of which, she sold 11 cents to the second defendant.
Plaintiffs had set up a case without any basis only in order to
deprive the defendants of their property. It was also pleaded
that there were other co-owners in survey number in question
who had not been impleaded as defendants, as such the suit
was bad in law for non-joinder of necessary parties.
4. The Trial Court framed the following six issues on the basis of the
pleadings of the parties:
(i). Whether the plaintiff is entitled for decree of declaration as
prayed for?
(ii). Whether the plaintiff is entitled for decree of permanent injunction
as prayed for?
(iii). Whether the husband of the 1st plaintiff executed a will on
16.07.2003?
(iv). Whether the 2nd plaintiff is the legal heir of the deceased
Arunachalam?
(v). Whether the suit is bad for non-joinder of necessary parties?
(vi). To what other relief?
5. The parties led oral and documentary evidence. Both the plaintiffs
examined themselves as PW 1 and PW 2 and one Mathiyalagan
was examined as PW 3 and they proved six papers Exh.A1 to A6.
On behalf of the defendants one Balarajendra was examined as
DW1 and he proved six papers Exh.B1 to B6. Both the defendants
did not enter the witness box.
6. The Trial Court discussed the evidence threadbare and recorded
the following findings:
[2025] 4 S.C.R. 833

Rajendhiran v. Muthaiammal @ Muthayee & Ors.

(i). Both the plaintiffs had pleaded that Arunachalam had executed
a will on 16.07.2003 but they failed to prove the said will deed
in accordance to the statutory provisions contained in Section
68 of the Indian Evidence Act, 1872 and also under Section
63 of the Indian Succession Act, 1956. Thus, their claim on the
basis of the will was not found to be substantiated;
(ii). The suit was bad for non-joinder of necessary parties as the
co-owners/co-sharers were not impleaded as defendants;
(iii). The plaintiffs were not the owners of the property in suit, they
had not been able to prove the oral partition and as such were
found to be not entitled to any relief.
7. Accordingly, it dismissed the suit, vide judgment dated 08.09.2015.
8. The plaintiffs preferred an appeal which was registered as Appeal Suit
No.55/2016. The Subordinate Court, Tiruchengodu, vide judgment
dated 27.11.2020, after considering the evidence on record, approved
the findings recorded by the Trial Court and, accordingly, dismissed
the appeal. Once again specific findings were recorded that the oral
partition had not been proved by the plaintiffs. For the said purpose,
both the Courts below had relied upon the evidence led by the parties,
both oral and documentary.
9. The First Appellate Court also approved the finding regarding non-
joinder of necessary parties.
10. Aggrieved by the same, the plaintiffs preferred Second Appeal before
the High Court, registered as Second Appeal No.351/2021. The
High Court proceeded on the premise that the only dispute was with
respect to the oral partition, as to whether oral partition had taken
place or not and if yes, whether it was duly proved? The High Court
relied upon Ex.A-3, A-4 and Ex.B-3 to hold that there had been an
oral partition. Ex.A-3 is the Mortgage Deed dated 13.10.2009. Ex.A-4
is the Sale Deed dated 15.07.1981. Ex.B-3 is the Sale Deed dated
02.05.2008. All these three documents were relied upon only for the
reason that they mentioned boundaries. Based only on the finding
that oral partition was proved, the High Court allowed the second
appeal and after setting aside the judgments of the Courts below
decreed the suit.
11. Heard counsel for both the parties.
834 [2025] 4 S.C.R.

Supreme Court Reports

12. The two sale deeds relate to different properties and not to survey
number in question. Whether any partition with respect to the survey
number in question had taken place or not, is not borne out from
the record. The suit property was never recorded in the name of
the plaintiffs or for that matter, husband of plaintiff no.1, at any time.
The will which was the basis of the claim of the plaintiff, had not
been found to be proved in accordance to law. The Trial Court and
the First Appellate Court had dealt with the documents Exh.A-4 and
B-3, the two sale deeds, and found that these were not sufficient to
prove the oral partition or in any manner establish the oral partition
with respect to the survey number in question.
13. Interestingly although the plaintiffs set up a case that the land in suit
was coming from Avinashi Gounder but on record, two pattas were
filed which establish that the survey number in question had been
allotted in the name of plaintiff no.1 and eight others jointly with respect
to which there was no partition. This fact had been admitted by the
plaintiffs in their deposition. All these aspects had been considered
by the Trial Court and the First Appellate Court but the High Court
failed to consider the oral as also the documentary evidence. Only
on the basis of the two sale deeds and one mortgage deed, which
relate to different piece and parcels of land, the High Court recorded
a perverse finding that oral partition had taken place. It also did not
deal with the other findings recorded by the Courts below.
14. In view of the above discussion and on the findings recorded above,
the impugned judgment cannot be sustained as it not only does not
conform to the scope of Section 100 of the Code of Civil Procedure,
1908 but also as it was perverse on appreciated evidence, and also
ignoring material evidence.
15. The appeal is, accordingly, allowed. The impugned judgment
and order of the High Court is set aside and that of the Trial
Court and the First Appellate Court is confirmed. The suit of the
respondent-plaintiff stands dismissed.
16. There shall be no order as to costs.

Result of the case: Appeal and application allowed.

†
Headnotes prepared by: Nidhi Jain