IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 6074 of 2009(O)
1. S.L. SASIKARA, AGED 45 YEARS,
... Petitioner
2. V.GAYATHRI, D/O. LATE VASANTHAKUMAR,
Vs
1. C.PRAVEEN, S/O. CHANDRAKESH,
... Respondent
2. S.CHANDRAKESH, S/O. SREENIVASA MALLAN,
3. S.NANDAKUMAR, S/O. SREENIVASA MALLAN,
4. S.MOHANKUMAR, S/O. SREENIVASA MALLAN,
5. KRISHNAKUMARI, D/O. SREENIVASA MALLAN,
For Petitioner :SRI.S.SANAL KUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice K.T.SANKARAN
Dated :02/03/2009
O R D E R
K.T.SANKARAN, J.
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W.P.(C) No. 6074 OF 2009
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Dated this the 2nd day of March, 2009
JUDGMENT
Predecessor in interest of the petitioners was the third
defendant in OS No.224/94 of Sub Court, Alappuzha. The suit was
for partition. A preliminary decree was passed. Later a final decree
was also passed. In the final decree proceedings, the third
defendant participated. He filed objection to the Commissioner’s
report and plan and he wanted allotment of an item of the property.
He appeared before court and later the allotment was changed. The
third defendant was allotted one item in the plaint schedule property
and he was granted a sum of Rs.38,315/- as owelty amount. He
received owelty amount and the matter became final. Final decree
was passed on compromise on 13.02.06, the court below having
accepted the compromise.
2. The third defendant was a doctor. He died on 04.06.06
within about four months of the date of passing of the final decree.
The legal representatives of the third defendant filed IA No.1879/07
to set aside the final decree stating that the final decree proceedings
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are vitiated by fraud. It was contended that the third defendant was
not practising for about two years before his death and he was
keeping aloof from his family members. It is sated that he left the
house and was residing in one of the rooms in the plaint schedule
property. The allegation is that the third defendant was suffering
from psychiatric ailment and bipolar depression. It is stated that the
third defendant was incapable of understanding matters and the
compromise was entered into without his free will and volition. The
other contention is that when compared to the other sharers,
properties having lesser value were allotted to the share of the third
defendant in the final decree. His legal representatives were not
aware of the compromise. They came to know about the
compromise only later and immediately they filed application before
the Court.
3. Before the court below, the first petitioner was examined as
PW1 and another witness was examined as PW2. PW2 is a doctor.
The court below found that the evidence of PW2 is not sufficient to
conclude that the third defendant was suffering from mental ailment.
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On behalf of the respondents, RW1, Administrative officer of the Life
Insurance Corporation of India was examined. The 3rd defendant
was senior medical officer of the Life Insurance Corporation of India.
RW1 deposed that the third defendant was authorised to issue
certificates to the policy holders. RW1 stated that till 04.05.06 the
third defendant acted in that capacity and the certificates issued by
him were accepted by the LIC.
4. The court below considered the evidence and materials
available before it and held that the petitioners failed to produce any
material to come to the conclusion that the deceased third defendant
was suffering from any ailment much less mental ailment. The court
below held hat it was not proved that there was any fraud at the
instance of the other share holders. The admitted facts and
circumstances led the court below to the conclusion that the third
defendant was capable of understanding things. He participated in
the final decree proceedings, appeared before court and entered into
compromise and accepted the owelty amount. The court below
concluded that the petition is devoid of merits. In my view, there is
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no illegality or irregularity warranting interference in the well
considered order of the court below.
The writ petition is devoid of merits and it is accordingly
dismissed.
(K.T.SANKARAN)
JUDGE
ttb