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.
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W.P.C.No.11250 of 2010
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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
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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
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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
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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/-
