IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 969 of 2002(H)
1. GANGADHARA PANICKER BHASKARAN,
... Petitioner
2. CHELLAMMA INDIRA, KURUVIKKADU PUTHEN
Vs
1. GANGADHARA PANICKER RAVEENDRAN
... Respondent
2. GANGADHARA PANICKER VASUDEVAN,
3. GANGADHARA PANICKER MADHU,
4. GANGADHARA PANICKER SASI,
5. CHELLAMMA VALSALA, D/O. CHELLAMMA,
6. CHELLAMMA USHA, D/O. CHELLAMMA,
For Petitioner :SRI.R.T.PRADEEP
For Respondent :SRI.G.S.REGHUNATH
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :16/02/2010
O R D E R
S.S.SATHEESACHANDRAN, J.
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C.R.P.NOS.969 & 973 OF 2002 ()
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Dated this the 16th day of February, 2010
O R D E R
These two revisions are filed by the plaintiffs in
O.S.No.440 of 1997 on the file of the I Additional Munsiff
Court, Neyyattinkara. The above suit is one for partition. A
preliminary decree had already been passed in the suit.
Plaintiffs, two in number, and defendants 2 to 7, are the
children of the 1st defendant. The 1st defendant father passed
away during the pendency of the final decree proceedings. On
the death of the 1st defendant, I.A.No.2269 of 2001 was filed
by the 4th defendant claiming that the 1st defendant father had
bequeathed his rights in the plaint property in favour of him
and the 5th defendant under Ext.A1 will. The plaintiffs filed
another application as I.A.No.2398 of 2001 to record them
along with the defendants 2 to 7 as the legal heirs of the
deceased 1st defendant. Both the applications were
considered together by the court below and evidence was
taken in I.A.No.2269 of 2001 treating it as the main petition.
C.R.P.NOS.969 & 973 OF 2002
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In the enquiry on that petition, the 3rd defendant, who was one
of the attesters of Ext.A1 will was examined as PW1. One
among the plaintiffs, 2nd plaintiff also got herself examined as
RW1. The plaintiffs had disputed the genuineness of Ext.A1
will contending that it was not signed by the father but a
forged document. The learned Munsiff, after considering the
materials produced and hearing the counsel on both sides,
allowed I.A.No.2269 of 2001 filed by the 4th defendant
ordering the impleadment of 4th and 5th defendants as the legal
representatives of the 1st defendant. The application,
I.A.No.2398 of 2001, moved by the plaintiffs was dismissed.
Feeling aggrieved, the two revisions have been filed against
the respective orders, though passed in common, by the
plaintiffs.
2. I heard the counsel on both sides. At the time of
hearing, it has been brought to my notice that in the
preliminary decree, the plaintiffs alone have been allotted
share in the plaint property ordering allotment of 1/9th share
in 36 cents of property, directing them to move for passing of
C.R.P.NOS.969 & 973 OF 2002
3
final decree to have a separate possession. No allotment had
been made to any of the defendants as they have not applied
for passing any decree for separate possession in their favour.
So much so, in the final decree proceedings arising from the
preliminary decree passed by the court, any division as
between the legal heirs in respect of the share of the 1st
defendant over the plaint property does not arise for
consideration. Further more, on the death of the 1st defendant
as to who are the legal heirs to be brought on record is only
for the purpose of continuation of the proceedings. The
enquiry contemplated under Order XXII Rule 5 of the Code of
Civil Procedure is only for the purpose of representing the
estate of the deceased as to who should be substituted in the
place of deceased 1st defendant. That enquiry is summary in
character and the order passed thereof no way affect the
substantive rights of the parties, which can be adjudicated by
them in proper proceedings as provided by law. So much so,
the impugned orders passed by the court, no doubt, will not
cause any prejudice to the right of the plaintiffs. So much so,
the revision filed against the order passed by the court below,
C.R.P.NOS.969 & 973 OF 2002
4
which at the most is only for substituting the 4th and 5th
defendants to represent the estate of the 1st defendant in
continuation of the proceedings, does not require serious
consideration. Though the court below has allowed
I.A.No.2269 of 2001 accepting Ext.A1 will since the findings is
based on summary enquiry, needless to point out, it is not final
and conclusive on the disputed question over the will, but only
made for the purpose of substituting the legal heirs of the 1st
defendant. That being so, I find no interference with the order
of the court below is called for. Revisions are closed.
S.S.SATHEESACHANDRAN
JUDGE
prp
S.S.SATHEESACHANDRAN, J.
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C.R.P.NOS.969 & 973 OF 2002 ()
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O R D E R
16th day of February, 2010