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Kerala High Court
Vijayamma vs Mohanan @ Chandramohanan on 1 July, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 11250 of 2010(O)


1. VIJAYAMMA, D/O.PONNAMMA, AGED 70 YEARS,
                      ...  Petitioner
2. P.AJITHKUMAR, S/O.PONNAPPAN, AGED 41,
3. P.VINOD KUMAR, AGED 39 YEARS,
4. P.RAJESH, AGED 36 YEARS,
5. V.BEENA, D/O.VIJAYAMMA, AGED 47 YEARS,
6. V.GEETHA, AGED 45 YEARS,
7. V.SAJINI, AGED 43 YEARS,

                        Vs



1. MOHANAN @ CHANDRAMOHANAN,
                       ...       Respondent

2. CHAKRAN @ SURESH BEENA COTTAGE,

3. VISWAMBHARAN NAIR, AGED 77 YEARS,

4. GEETHA, D/O.SUMATHY KUTTY AMMA,

5. LATHA, D/O. -DO- -DO- -DO-

6. AYYAPPAN PILLAI, S/O.T.MURUGAN PILLAI,

7. ANITHA BEEGOM, ALUMMOODU VIKKOM VEEDU,

8. SAINULABDEEN, S/O.MANSOOR,

9. VIJAYAN, S/O.CHELLAPPAN PILLAI,

10. V.GIREESH KUMAR, VYKUNTAM, T.C.25/2135,

11. G.RETHIDEVI, D/O.GOMATHI AMMAL,

                For Petitioner  :SRI.M.R.ANANDAKUTTAN

                For Respondent  :SRI.K.B.PRADEEP

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :01/07/2010

 O R D E R
                   THOMAS P JOSEPH, J.

                  ----------------------------------------

                      W.P.C.No.11250 of 2010

                   ---------------------------------------

                 Dated this 01st day of July, 2010

                             JUDGMENT

Challenge in this writ petition is against Ext.P5, order

allowing amendment of plaint in a suit for partition. Parties are

referred to as plaintiffs and defendants as in the trial court for

convenience.

2. As per the plaint averments as originally stood plaintiff

No.1 is the legally wedded wife of the late Ponnappan and plaintiff

No.2 and defendant No.1 are children born in that wedlock. It is

also the case of plaintiffs that the late Ponnappan had some affair

with defendant No.2 and that defendant Nos.3 to 8 are born in that

relationship. Plaintiffs claimed that themselves and defendant

No.1 being the legal heirs of the said Ponnappan are entitled to

3/9th shares in the suit property. They stated that defendant Nos.3

to 8 being illegitimate children of the late Ponnappan are entitled

to the remaining shares in the suit property. Defendant Nos.2 to 8

resisted the suit contending that plaintiff No.1 is not the legally

wedded wife of the said Ponnappan and that plaintiffs and

defendant No.1 are not entitled to any share. They claimed that

defendant No.2 is the legally wedded wife of the late Ponnappan

W.P.C.No.11250 of 2010
: 2 :

and that defendant Nos.3 to 8 are born in that wedlock and hence

property has devolved on defendant Nos.2 to 8. While so, plaintiff

No.1 (Sumathy Kutty Amma) expired. Thereon, on the application

of plaintiff No.2, defendant Nos. 9 to 17 were impleaded. Later,

plaintiff No.2 filed I.A.No.1497 of 2008 for amendment of the

plaint. In the affidavit in support of the application it is stated that

though Ponnappan had legally married deceased plaintiff No.1

(Sumathy Kutty Amma), that marriage ended in a divorce in the

year 1953 and that deceased plaintiff No.1 then married additional

defendant No.9 in which wedlock, additional defendant Nos.10 to

17 are born. It is also stated in the affidavit in support of the

application that since defendant Nos.3 to 8 are no legal heirs of

the said Ponnappan they are not entitled to succeed to his estate.

Plaintiff No.2 therefore contended that since the marriage

between the late Ponnappan and deceased plaintiff No.1

(Sumathy Kutty Amma) ended in a divorce in the 1953 she no

longer continued to be a legal heir of said Ponnappan. In the light

of that contention there was change in the shares plaintiff No.1

and defendant No.1 are entitled to. Learned Sub Judge allowed

the amendment which is under challenge in this writ petition.

Learned counsel for petitioners/defendant Nos.2 to 8 contend that

amendment goes against the averments in the plaint, it changed

W.P.C.No.11250 of 2010
: 3 :

nature and character of the suit and even attributed illegitimacy to

defendant Nos.2 to 8. According to the learned counsel in the

circumstance court below was not correct in allowing the

amendment. Learned counsel for respondent No.1/plaintiff No.1

supported the order under challenge.

3. It is true that plaint as originally filed proceeded on the

basis that plaintiff No.1 continued to be the legally wedded wife of

the late Ponnappan until his death and succeeded to the estate of

deceased Ponnappan along with plaintiff No.1, defendant No.1 and

defendant Nos.3 to 8. But in the application for amendment it is

conceded by plaintiff No.2 that there was a divorce in the year

1953 between the late Ponnappan and deceased plaintiff No.1 and

hence the latter ceased to be a legal heir. Amendment in that line,

I am unable to accept brought about any way change in the nature

and character of the suit in that the suit continued to be one for

partition though there happened to be difference in shares which

plaintiff No.2 and defendant No.1 claimed.

4. The other matter required to be incorporated in the

plaint by amendment is that though in the original plaint it is

stated that defendant Nos.3 to 8 in spite of being illegitimate

children of the late Ponnappan are also entitled to a share along

with plaintiff No.1 and defendant No.1, by amendment it is

W.P.C.No.11250 of 2010
: 4 :

contended that defendant Nos.3 to 8 are not entitled to any share.

It is open to plaintiff No.2 to contend so if necessary by an

amendment but, that does not in anyway change the nature and

character of the suit. It is a different matter that it is open to

defendant Nos.2 to 8 to contend as before that defendant No.2

being the legally wedded wife of the late Ponnappan and

defendant Nos.3 to 8 being children born in that wedlock they

alone are entitled to succeed to his estate. Defendant Nos. 2 to 8

contend that there was no legal marriage between deceased

plaintiff No.1 and the late Ponnappan and as such, plaintiff No.1 or

defendant No.1 are not entitled to any share. These are matters

which the court below has to decide after the trial.

5. On going through the original plaint, application for

amendment and the order under challenge I do not find reason to

interfere with the impugned order allowing amendment.

Petitioners/defendant Nos.2 to 8 will get the chance to file

additional written statement in answer to the amended plaint

taking up appropriate contentions as they are entitled to.

There is no merit in the writ petition. It is dismissed.

(THOMAS P JOSEPH, JUDGE)

Sbna/-


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