IN THE HIGH COURT OF KERALA AT ERNAKULAM
CMA No. 189 of 2002()
1. PENGAT PALENGAL SANKARANKUTTY NAIR,
... Petitioner
Vs
1. NADUTHODI PENGAT PALAKKAL VILASINI,
... Respondent
2. SANTHOSH S/O. VILASINI, DO. DO.
3. SURESH S/O. VILASINI, DO.
4. SATHEESH S/O. VILASINI, DO.
5. SUNITHA, D/O. VILASINI, DO.
For Petitioner :SRI.K.M.SATHYANATHA MENON
For Respondent :SMT.PREETHY KARUNAKARAN
The Hon'ble MR. Justice K.PADMANABHAN NAIR
Dated :13/04/2007
O R D E R
K. PADMANABHAN NAIR, J.
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C.M.A. NO. 189 OF 2002
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Dated this the 13th day of April, 2007
J U D G M E N T
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This Civil Miscellaneous Appeal is filed against the order
passed in I.A.No. 1101 of 2000 in O.S. No.353 of 1995 on the file
of the Sub Court, Manjeri.
2. Plaintiffs filed the suit for partition. There are 15
defendants. The 1st defendant is the mother of the 4th
defendant. First defendant died during the pendency of the suit.
The 4th defendant raised a contention that he alone is entitled to
succeed the entire estate of the deceased 1st defendant on the
ground that first defendant had executed a Will bequeathing the
properties in his favour. The 4th defendant filed a petition, I.A.
No.292 of 1997, to record him as the legal representative of the
deceased 1st defendant. The court below allowed that petition.
Subsequently the respondents filed I.A. No.1101 of 2000, to
review that order. The court below allowed the said I.A. and
recorded the 4th defendant also as one of the legal
C.M.A. .NO. 189 OF 2002
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representatives of deceased 1st defendant. Challenging that
order, this Civil Miscellaneous Appeal is filed.
3. Learned counsel for the appellant submitted that along
with the written statement, the appellant had produced the Will
under which he claim exclusive right and asserted that he alone is
entitled to succeed the estate of deceased 1st defendant.
Learned counsel for the contesting respondents denied this
contention and submitted that in fact the appellant filed the Will
along with a petition after filing the written statement and on
that day itself the contesting respondents filed objection
disputing the genuineness of the Will. While that petition was
pending, the application for recording the appellant as the sole
legal representative of the deceased 1st defendant was allowed
and that was the reason why the court below reviewed the order.
Since the suit filed is one for partition, the question as to who is
entitled to succeed the estate of the deceased 1st defendant is
an issue to be considered in the suit itself. The appellant claims
exclusive title over the property left by the deceased 1st
defendant which is objected to by the plaintiffs and some other
C.M.A. .NO. 189 OF 2002
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defendants. Since that is a disputed question of fact the same is
to be decided as an issue arising for consideration in the suit.
Hence I am of the view that the order passed by the court below
can be sustained. An issue also is to be framed as to whether
the Will claimed by the appellant is a genuine one and the same
shall be considered in the suit. So the CMA is only to be disposed
of.
In the result, the CMA is disposed of. It is made clear that
the court below shall frame an issue whether the Will claimed by
the appellant is a genuine one or not and should consider the
same at the time trial of the suit.
K. PADMANABHAN NAIR, JUDGE.
vsv
K. PADMANABHAN NAIR, J.
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C.M.A. NO. 189 OF 2002
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J U D G M E N T
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13TH APRIL, 2007