IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 10TH NOVEMBER 2010 / 19TH KARTHIKA 1932 AS.No. 13 of 1999(C) ----------------------------- OS.158/1994 of SUB COURT, VADAKARA .................... APPELLANT/ 19TH DEFENDANT. ---------------------------------------------- P. SATHI VIJAYAN, VIJAYA TIMBER, KARIMPANAPALAM. BY ADV. SRI.R.K.MURALEEDHARAN RESPONDENTS/ PLAINTIFFS & DEFENDANTS 1 TO 18 & 20 TO 22 --------------------------------------------------------------------------------------------- 1. K.P. RAVEENDRAN, KARIPPALLY HOUSE, NARAYANA NAGARAM, VADAKARA. 2. K.P. MOHANDAS -DO- **3. K.P.SASINDRAN -DO-,** (DIED) 4. K.P. VIJAYALAKSHMI -DO- 5. K.P. RAMESH -DO- 6. K.P. PADMAJA -DO- 7. T.N. KUNHI MATHA, THAZHE NEDUKANDIYIL, P.O. KARIMPANAPALAM, VADAKARA. ***8. RADHA, NEDUM KUTTIYADIYIL NILAM KUNIYIL HOUSE, RAYARANGOTH, K.T. BAZAR.***(DIED) 9. M.V.SANTHA BALAKRISHNAN, MANGATT PARAMB, P.O. CHERUVANNOOR. *a10. T.N.LEELA, THAZHE NADUKANDIYIL HOUSE, P.O. KARIMPANAPALAM, VADAKARA. *a (DIED) *b11. C. DEVAKI, MADHAVA SADAN, GANESH GIRI, SHORNOOR-3. * b (DIED) *12. SARADHA, KRISHNA NIVAS, NEAR RAILWAY STATION, KOYILANDY.*(DIED) 13. NALINI, PUTHANPURAYIL HOUSE, JANATHA ROAD, MEPPAYIL, NEAR SANKAR CLINIC. 14. C.P. VIJAYARAJAN, KRISHNA MEDICALS, MAIN ROAD,VATAKARA. 15. C.P. USHA, SULTHAN BATHERI, 16. C.P. SABITHA,C/O.M.T. SASINDRAN, ASSISTANT EXECUTIVE ENGINEER, FORT ROAD, KASARAGOD. 17. C.P. GOPINATH, KRISHNA MEDICALS, MAIN ROAD,VADAKARA. 18. C. PREMALATHA GOPALAN,KARIPPALLY HOUSE, NARAYANA NAGARAM,VADAKARA. 19. RASEENA C.M., KARIPPALLY HOUSE, NARAYANA NAGARAM, VADAKARA. 20. K.P. VIJAYA RAGHAVAN, PANICKER ROAD, KOZHIKODE. 21. P. RAMADAS, C/O.P.CHANDRAHASAN, HIMALAYA AYURVEDIC FARMACY,PERAMBRA. *c 22. P. MOHAN DAS -DO- *c (DIED) 23. P. JYOTHI KUNHIRAMAN, C/O.C.M.KUNHIRAMAN, NADAKKAL HOUSE,NEAR ASHOKA THEATER, VADAKARA. 24. P. JAYARAJ, KERALA WATER AUTHORITY, P.H. SECTION,PURAMERI. 25. P.CHANDRAHASAN, HIMALAYA AYURVEDIC FARMACY, PERAMBRA. 26. P. RADHAKRISHNAN, C/O/C.P. KUNHIRAMAN NADAKKAL HOUSE, NEAR ASHOKA THEATER, VADAKARA. 27. LAKSHMI, C/O.M.P.SREEDHARAN, RETD. PROFESSOR, MALABAR CHRISTIAN COLLEGE,CALICUT. * ADDL.R28 & R29 IMPLEADED ADDL R28 RAMAKRISHNAN,' RAMANIKA' NORTH RAILWAY STATION, QUILANDY. A.S.NO.13/1999 R29 GOPALKRISHNAN, KRISHNA NIVAS, NORTH RAILWAY STATION, QUILANDY. * R12 DIED, ADDL. R28 & R 29 ARE IMPLEADED AS PER THE ORDER IN CMP.3441/1999 DATED 1/3/2006. ** ADDL. R30 TO R32 IMPLEADED R30 SHOBA SASINDRAN, W/O. LATE SASINDRAN, BREEZE QUARTERS, KARAKKAD.P.O, GURUVAYOOR. R31 SHILKA, AGED 16 YEARS, D/O.SHOBA SADINDRAN,MINOR REP BY SHOBA SASINDRAN, DO-D0. R32 SHRAVAN, AGED 13 YEARS, S/O. SHOBA SASIDRAN, MINOR REP BY SHOBA SASIDRAN, DO- DO.- **LEGAL REPRESENTATIVES OF THE DECEASED R3 ARE IMPLEADED AS ADDL. R30 TO R32, AS PER ORDER DT. 29/10/10 IN IA.1243/10, IN AS.13/99. ***ADDL. R33 & R34 IMPLEADED R33 BHAMA, AVIHAR QUARTERS, 4TH VATHUKKAL, P.O. BARA, VIA UDUMA, PIN 671319,KASARAGOD DISTRICT. R34 PREMAN RAYAROTH, KT BAZAAR, P.O, MADAPPALLY COLLEGE, VIA VATAKARA - ***LR'S OF THE DECEASED R8 ARE IMPLEADED AS ADDL. R33 AND R34, AS PER ORDER DT. 29/10/10 IN IA 1440/10 IN AS.13/99. *a ADDL. R35 & R36 IMPLEADED R35 PRIYA.T.N, PUNATHILKANDY, P.O,MEPPEL, VIA VATAKARA. R36 PREETHA T.N., THAZHENADUKANDY , KARIMBANAPALAM, VATAKARA- *a LR'S OF DECEASED R 10 ARE IMPLEADED AS ADDL. R35 AND R36, AS PER ORDER DT.29/10/10 IN IA.1447/10 IN AS.13/99. *b ADDL. R37 TO R42 IMPLEADED A.S.NO.13/1999 R37 M.SURESAN, SAMPOORNA BHAVAN, ATHANIKAL WEST, WEST HILLP.O, CALICUT. R38 C.SATHEESAN, SAVIJAMANI SOUDHAM, GANESH GIRI, SHORNUR-3. R39 C.PADMAVATHI, SREEUGHMA, GANESH GIRI, SHORNUR-3. R40 C.RAMESH,MADAVA SADHAN, GANESH GIRI, SHORNUR-3. R41 C.PUHPAN, C/O. REMASH, DO-DO- R42 C.SUDHA, EADTHODI HOUSE, GANESH GIRI, SHORNUR-3- *b LR'S OF THE DECEASED R11 ARE IMPLEADED AS ADDL. R37 TO R42, AS PER ORDER DT.29/10/10 IN IA.1445/10 IN AS.13/99. *c ADDL R43 IMPLEADED R43 .M.NANI, W/O. DECEASED MOHANDAS, MOOLAYIL HOUSE, PUTHUPANAM, VATAKARA- *c LR'S OF THE DECEASED R22 IS IMPLEADED AS ADDL. R43, VIDE ORDER DT.29/10/10 IN IA.1449 IN AS.13/99. R1, 4 & 5 BY ADV. SRI.P.R.VENKETESH SRI.E.K.NARAYANAN SRI.KPG.MENON R11 SRI.R.PARTHASARATHY R23, R25 & R26 SRI.C.VALSALAN R37 TO R42 SRI.R.PARTHASARATHY R33 TO R36 SRI.KRISHNADAS P. NAIR SMT.K.L.SREEKALA THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 10/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 13 OF 1999 = = = = = = = = = = = = = = = Dated this the 10th day of November , 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Vadakara in O.S.158/94. The brief facts necessary for the disposal of the appeal are stated as follows. 2. One Manni through her first husband had three children namely Chirukandan, Acha and Matha and through the 2nd husband she had a daughter called Malu. Now the plaintiffs in the suit are the children of Kanaran who is the son of Malu. Defendants 1 to 4 are the children of Kunhiraman another son of Malu. D5 is one Devaki and D6 is one Sarada. Their respective legal representatives are D15 to D21 and D28 and D29. Now I am not referring to the other genealogy for the time being for the reason the A.S. 13 OF 1999 -2- whole matter requires reconsideration at the hands of the trial court. The crux of the case is that Matha who had been allotted the property under Ext.B7 died issue less after the coming into force of the Hindu Succession Act. She did not have her husband as well and her mother was not alive at the time of her death. Parties are governed by Marumakkathayam law and therefore it is S.17 of the Hindu Succession Act that will apply. Under Section 17, the available legal representatives of Matha are the legal representatives of her mother Manni which comes under S.17(3)(e). 3. Now it is argued before me that since Matha and the plaintiffs' predecessor are born to Manni and different husbands the children born in the father, Pokkan would have precedence over the right over Raman's daughter Malu and A.S. 13 OF 1999 -3- therefore the plaintiffs will not be entitled to any share. But since the legal representatives are the legal representatives of mother, irrespective of the question of the father they will become legal representatives under S.17 (2) (c) of the Hindu Succession Act. Therefore the said contention cannot be accepted. 4. Now comes the question of entitlement. The documents are Exts.B7, X1 and B2. Ext.B7 is a registered partition deed entered into between these persons wherein Matha is the 13th executant. In paragraph 3 of Ext.B7 it is recited that if Matha dies issueless her property will devolve upon executant No.12 in Ext.B7. So it is contended that the said portion will operate as a Will and so plaintiffs will not be entitled to any share. 5. Secondly it is contended that Ext.X1 is A.S. 13 OF 1999 -4- a Will executed by Matha in 1962 whereby she had bequeathed the property in favour of some of the children of Acha. If this Will is proved then also the plaintiffs will not be entitled to any right over the property. But the trial court rejected the prayer on the ground that the original of the Will is not produced. It is true that under Section 66 of the Indian Evidence Act original of the document should be attempted to be brought in and when it is not possible secondary evidence is admissible in evidence and that secondary evidence also can be proved by the method stipulated in S.68 to 71 of the Indian Evidence Act. If the original of the Will is not forthcoming the filing sheet from SRO can be called for and the Court can consider that aspect. A.S. 13 OF 1999 -5- 6. Thirdly, it is argued that during the life time of Matha she has executed a gift in favour of the children of Acha under Ext.B2. If Ext.B2 stands proved, since it is a document executed by her during her life time then the question of any succession does not arise under the Will. So in those circumstances Ext.B2 will have predominance over all other documents in the case. Ext.B2 being a gift deed it is also a document where the executant has not attempted to prove the same by examining at least one of the witnesses as contemplated u/s 68 of the Indian Evidence Act. So the whole fate of the case depends upon the acceptability of Ext.B7 or X1 or B2. If any of these documents are found to be true, valid and binding then the plaintiffs and other persons who are not connected with Acha will not be entitled to any A.S. 13 OF 1999 -6- share in the property. The matter had not been considered in that perspective by the trial court and therefore the judgment and decree of the trial court are set aside and the matter is remitted back to the trial court with a direction to the trial court to permit all concerned to produce documentary as well as oral evidence in support of their respective contentions and then dispose of the matter in accordance with law. Parties are directed to appear before the trial court on 17.12.10. M.N. KRISHNAN, JUDGE. ul/- A.S. 13 OF 1999 -7- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No.13 OF 1999 = = = = = = = = = = = J U D G M E N T 10th November, 2010.