High Court Kerala High Court

Pengat Palengal Sankarankutty … vs Naduthodi Pengat Palakkal … on 13 April, 2007

Kerala High Court
Pengat Palengal Sankarankutty … vs Naduthodi Pengat Palakkal … on 13 April, 2007
       

  

  

 
 
  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

-: 2 :-

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

-: 3 :-

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