V.K.Thankamma vs Karthiyani on 9 August, 2007

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 24289 of 2007(N)


1. V.K.THANKAMMA, W/O PADMANABHAN,
                      ...  Petitioner
2. RATHI, D/O PADMANABHAN & THANKAMMA,
3. KUTTAN, S/O PADMANABHAN & THANKAMMA,
4. RAJAN, S/O NARAYANAN, HUSBAND OF RATHI,

                        Vs



1. KARTHIYANI, W/O P.K.DAMODARAN,
                       ...       Respondent

2. P.D.SAJEEVAN, S/O DAMODARAN &

3. P.D.SAROJINI, W/O SUDHAKARAN,

4. P.D.VALSALA, W/O SATHYAN,

5. SREEKANTH(MINOR), S/O LATE SREEKALA

6. C.K.SOMAN, H/O SREEKARA,

                For Petitioner  :SRI.N.NEELAKANDHAN NAMBOODIRI

                For Respondent  : No Appearance

The Hon'ble MR. Justice M.N.KRISHNAN

 Dated :09/08/2007

 O R D E R
                     M.N.KRISHNAN, J.
               -----------------------------
                 WP(C)No. 24289 OF 2007 N
               -----------------------------
             Dated this the 9th August, 2007.

                         JUDGMENT

This writ petition is filed challenging the part

refusal of an amendment prayed for by the plaintiff in the

suit. In the amendment application it is stated that

Padmanabhan had a daughter viz., Jalajamani and her rights

had been given by virtue of two documents in the year 1976

and 1979 and subsequent to the same he had executed a will

on 29.12.1986 whereby no right had been given to the said

Jalajamani as stated in that paragraph. The court below

disposed of the interim application and genuineness of the

will is left open to be decided at the time of trial.

Hence I.A. was allowed in part except para 2 of the

application. Unless there is consideration of para 2 of

the amendment application the question of considering the

genuineness or otherwise of the will does not arise at all.

Therefore, I hold that the court below has not applied its

mind properly. If the genuineness of the will is left open

to be considered at the stage of the trial, necessarily the

court should have allowed the application including para 2.

It is not seen done. Therefore, the order suffers from

serious infirmity and therefore, it is set aside. The

matter is remitted back to the court below for fresh

WPC 24289/07 2

consideration of the said I.A after hearing all concerned.

Writ petition is disposed of accordingly.

M.N.KRISHNAN
Judge
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