IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 8TH MARCH 2010 / 17TH PHALGUNA 1931 WP(C).No. 2185 of 2009(I) ------------------------- OS.141/1985 of I ADDL.SUB COURT, KOZHIKODE .................... PETITIONER(S): ------------------------- MRS. K.P. MUTHULAKSHMI AMMA, D/O.LATE K.P. SREEDEVI AMMA, RESIDING AT PANNIYANKARA AMSOM, KOZHIKODE. BY MR.V.CHITAMBARESH, SENIOR ADVOCATE, MR.SAJEEV KUMAR K.GOPAL. RESPONDENT(S): --------------------------- 1. SMT. RADHA KRISHNANUNNI, W/O.LATE KRISHNANUNNI,. 2. JAYASREE, D/O. LATE KRISHNANUNNI, 3. RAJASREE, D/O. LATE KRISHNANUNNI. 4. JAYARAM, S/O. LATE KRISHNUNNI, RESPONDENTS 1 TO 4 ARE RESIDING AT 'JAYASREE', SIVAPURI COMPOUND, WAYANAD ROAD, KOZHIKODE. 5. DR. K.P. JANARDHANAN, S/O. SREEDEVI AMMA, RESIDING AT 1, SUDDAR STREET, CALCUTTA 700 016. 6. DR. K.P. RAJAGOPAL, S/O. LATE K.P. SREEDEVI AMMA, RESIDING AT ' SREELAKSHMI', NELLIKODE, CALICUT -17. R1 BY ADVS. MR.P.RAMACHANDRAN, MR.S.SREEDEV. R5 BY ADVS.MR.T.SETHUMADHAVAN, MR.PUSHPARAJAN KODOTH, MR.K.JAYESH MOHANKUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.2185/2009 I APPENDIX PETITIONER'S EXHIBIT: P1: COPY OF THE ORDER IN I.A.NO.309/2004 IN O.S.NO.141/1985 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE OF KOZHHIKODE DTD. 15/10/2008. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss P. BHAVADASAN, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= W.P.(C) No. 2185 of 2009 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 8th day of March, 2010 JUDGMENT Short question that arises for consideration in this writ petition is who are the legal heirs of the 1st defendant in the suit, who died during the pendency of the suit. 2. The suit is for partition. On the death of 1st defendant, 2nd defendant, who is one of her legal heirs sought to get impleaded as her sole legal heir, on the basis of the Will said to have been executed by her. Other legal heirs opposed the application, denied the execution of the Will and contended that the 1st defendant was not having a sound disposing state of mind at the time of execution of the Will. 3. At the time of hearing of the case, the learned counsel for the petitioner restricted his submission to that, W.P.(C) No. 2185/09 2 the finding regrading the Will in this proceeding may not dis-entitle him from agitating the claim based on the Will in some other independent proceedings. 4. There cannot be any dispute regarding the fact that the enquiry undertaken by the court below in I.A. No.309 of 2004 in O.S. No.141 of 1985 under Order XXII Rule 5 of the Code of Civil Procedure to determine who is actually the legal heir of the 1st defendant is only a summary proceedings. 5. The above position in law cannot now be a doubt in view of several judicial precedents. This aspect has been considered by this Court in Govindan Nair V. Janaki Amma (2001(2) KLT 360). It was held that the finding entered by a court in a petition under Order XXII Rule 5 cannot operate as res judicata between the parties in any other subsequent proceedings. In Zacharia V. Jolly Cherian (2009(3)KLT 323) this Court held that an enquiy under Order XXII Rule 5 of the C.P.C. for the purpose of determining the legal heir of a deceased party could be only summary and an execution W.P.(C) No. 2185/09 3 court could not permit or envisage elaborate proceedings like a civil suit to determine the question as to who was the legal representative to give a conclusive and binding decision in the proceedings since it is not determining any right to succession. Both sides relied on a decision of the Supreme Court in Dashrath Rao Kate V. Brij Mohan Srivastava ((2010) 1 SCC 277). In the said decision also the question as to nature of an order under Order XXII Rule 5 was considered and held that a finding under Order XXII Rule 5 regrading the status of the person is confined to that suit and it could not be re-agitated in a subsequent stage of the same suit. The decision went on to observe that the position may be different if challenge is in another suit. In the light of the above decision, the finding under Order XXII Rule 5 of the Code of Civil Procedure which is a summary proceeding regarding the status of legal heir in the proceedings on the basis of the Will stand confined to that suit or proceeding. 6. Leaving open the question as the petitioner can W.P.(C) No. 2185/09 4 claim on the basis of the Will in another suit or in other proceedings, this writ petition is disposed of. The court below shall take endeavour to dispose of the suit as early as possible, at any rate within six months from the date of receipt of a copy of this judgment. P.BHAVADASAN, JUDGE. mn.