IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 4TH JANUARY 2008 / 14TH POUSHA 1929 MFA.No. 421 of 1999(A) ---------------------- AGAINST THE ORDER DATED 14/08/1998 IN (LAOP 396/91) IN OS.18/1994 of I ADDL.DISTRICT COURT, ERNAKULAM .................... APPELLANT/13TH DEFENDANT: ----------- K.V.GEORGE,AGED 64, KIZHAKKUMKARA HOUSE, MAMALASSERY P.O., VIA. MUVATTUPUZHA. BY ADV. SRI.P.N.RAMAKRISHNAN NAIR SRI.P.VISWANATHAN RESPONDENTS/PLAINTIFF AND DEFENDANTS 1 TO 12 AND 14 TO 21: ------------- 1.K.M.CHERIYAN,AGED 53, S/O.MANI, KUMBALAKUNNEL HOUSE, KANDANAD P.O., VIA. THIRUVAMKULAM. 2.N.A.GEORGE, NETTADIYIL, P.O. BOX NO.3535 ABUDHABI, U.A.E. (DELETED) 3.MATHEW N. ABRAHAM, NETTADIYIL HOUSE, MANEED P.O., VIA, PIRAVOM. (DELETED). 4.N.A.KURIAKOSE,NETTADIYIL HOUSE, ANCHALPETTI P.O., VIA, PAMBAKKUDA. 5.MARY GEORGE, MANGALATHU, ANCHELPETTI P.O. VIA, PAMBAKKUDA. 6.ACHAMMA JOLLY, CHAKKAPPILLIL HOUSE, MARADY P.O., VIA. MUVATTUPUZHA. 7.M.RAJAN,MANGALATHU, MAMALASSERY P.O. VIA. MUVATTUPUZHA. 8.M.THAMBI, MANGALATHU, 19-ELIAMMAN COLONY, MADRAS – 86. 9.BABY MATHEW, OLAYIAN, G.C.C. P.O. BOZ NO.51111, DAMMAN, SAUDI ARABIA. (DELETED) MFA.421/99 10.VALSA PAULOSE, EDAYATH, AYAVANA P.O., VIA. MUVATTUPUZHA. 11.LEELA ROY, PALAL, 40/3087, LISSIE HOSPITAL ROAD, COCHIN – 18. 12. K.V.CHERIYAN, KIZHAKKUMKARA HOUSE, MAMALASSERY P.O., VIA. MUVATTUPUZHA. 13.K.V.POULOSE, DO. DO. 14.IBY MATHEW, W/O.K.V.MATHEW, DO. DO. 15.LEELAMMA GEORGE, C/O.C.G.GEORGE, CHAMAKKALA AUTOMOBILES, CHANDAMUKKU, KOTTARAKKARA. (DELETED). 16.K.M.MARY, 6231, HIDDENCOVE, LAKEWOOD VILLAGE, CORPUS CHRISTY, T.X.78412, U.S.A. 17.SUSAMMA CHACKO, PADINJAREKILIYANTHIL HOUSE, AYYAMPILLY P.O., VIA. COCHIN. 18.K.M.JOY, KUMBALAKUNNEL HOUSE, KANDANADU P.O., VIA. THIRUVANKULAM. 19.JOLLYKUTTY MATHAI, THAZHATHUTT HOUSE, KAVALANGAD, NELLIMATTOM P.O., VIA. KOTHAMANGALAM. 20.N.A.THOMAS,S/O.ABRAHAM, NETTADIYIL HOUSE, KALAMBOOR P.O., PIRAVOM. 21.MATHEW THARAKAN @ BABY, RESIDING AT MADAPARAMBIL (KAVUMPATTU) SOUTH MAZHUVANNOOR, VIA. MUDAVOOR. THE NAME OF RESPONDENTS 2 AND 9 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 7.4.06 IN I.A.776/06. THE NAME OF RESPONDENTS 3 AND 15 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER ORDER DATED 12.7.06 IN I.A.1269/06. BY ADV. SRI.VARGHESE KURIAKOSE FOR R7 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 04/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.F.A.421/99 ORDER ON C.M.P.2964/2000 IN M.F.A.421/1999 DISMISSED. 4.1.2008 SD/- J.B.KOSHY, JUDGE SD/- K.HEMA, JUDGE /TRUE COPY/ J.B.KOSHY & K.HEMA, JJ. ------------------------------- M.F.A.NO.421 OF 1999 (A) ----------------------------------- Dated this the 4th day of January, 2008 J U D G M E N T KOSHY,J. Sister of the appellant executed Ext.A1 will in favour of the 1st respondent and his mother. First respondent is the son of the testator's sister who was looking after her. The appellant alone objected the will and other brothers and sisters who were parties did not file any objection. Since petition was filed by the appellant who was the first respondent in L.A.O.P.No.396/1999, the above L.AOP was converted as a suit and it was numbered as O.S.No.18/1994 and the appellant was the 13th defendant who alone contested the case. The tribunal allowed the case and granted letters of administration in respect of Ext.A1 will by judgment dated 14th August 1998 and this appeal is filed in 1999 but defect in filing was cured and came up for admission on 30.5.2002. But process was filed only in 2003. Case was referred to Adalath. But appellant MFA.421/99 2 and counsel were not present in Adalath on several postings. Finally Adalath returned back the case to the Court and in the various postings, at the wish of the counsel for the appellant, case was being adjourned. It is submitted today by the counsel for the appellant that when he send a registered communication to the appellant, a communication was received, saying that the appellant died before August 2007 and his brother's daughter who was the 15th defendant wanted to contest the matter and he wanted to get herself impleaded as the beneficiary of the will alleged to be executed by the appellant. We are of the view that since 15th defendant before the trial court who received notice did not file any objection to the validity of Ext.A1 will, she cannot now contest in appeal for more than 10 years. Further, 15th defendant also did not file an appeal against the judgment and decree. Trial court found that testator executed the will with full testamentary capacity and all legal formalities were complied with and Ext.A1 will can be acted up. The appellant died and all his legal heirs are already parties as respondents who never contested the validity of the will. No petition was filed for setting aside the abatement. In MFA.421/99 3 the above circumstances, appeal is dismissed as abated. J.B.KOSHY, JUDGE K.HEMA, JUDGE prp J.B.KOSHY & K.HEMA, JJ. -------------------------------------------------------- M.F.A.NO.421 OF 1999 (A) --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 4th January, 2008