IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 26TH AUGUST 2008 / 4TH BHADRA 1930 RP.No. 632 of 2008 -------------------- AGAINST THE JUDGMENT IN S.A.No. 601/2001 DATED 14.11.2007 (AS 91/1998 OF PRINCIPAL SUB COURT, ALAPPUZHA O.S. NO. 257/1995 OF PRINCIPAL MUNSIFF COURT, ALAPPUZHA). REVIEW PETITIONERS/APPELLANTS. ----------------------------------------------- 1. K.V.VIJAYAMMA, WIDOW OF NEELAMBARAN. 2. REJI KALA, D/O. VIJAYAMMA. (BOTH ARE RESIDING AT JEKARIYA PARAMBU, PAZHAYA VEEDU VILLAGE, KAITHAVANA MURI, ALAPPUZHA. BY ADVS. SRI.V.CHITAMBARESH (SR.) SRI. JAYASANKER.B. RESPONDENTS/RESPONDENTS. ---------------------------------------------- 1. SOUTHAMINI, RESIDING AT KANNIMEL PURAYIDOM, (ZACHARIA PARAMBU) KAITHAVANA, PAZHAYA VEEDU VILLAGE, ALAPPUZHA. 2. DEVAYANI, RESIDING AT ENPATHILCHIRA, VAYATTUPAKKA, KAINADY P.O., CHERUKARA. BY ADV. SMT.C.G.BINDU FOR R1 K.S. MOHANACHANDRAN NAIR FOR R2 THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 26/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J ---------------------------------- R.P.No. 632 OF 2008 IN S.A.No. 601 OF 2001 --------------------------------------- Dated this the 26th day of August, 2008 O R D E R Second Appeal 601 of 2001 was filed by the petitioners herein claiming to be the wife and the daughter of deceased Neelambaran, the defendant in O.S. 257 of 1995, challenging the judgment in A.S. 91 of 1998 on the file of Sub Court, Alappuzha. The 2nd respondent, Devayani, who was impleaded as additional respondent, contended that petitioners are not the legal heirs of deceased Neelambaran. This Court, as per Order dated 01.06.2007 called for a finding on the question whether the 2nd respondent Devayani or the appellants are the legal heirs of Neelambaran, as provided under Rule 5 of Order XXII of Code of Civil Procedure, from the Trial Court. Trial Court after conducting an enquiry, forwarded a finding dated 18.09.2007. On receipt of the said finding this Court accepting that finding held that appellants are not the legal heirs of deceased Neelambaran and therefore they are not entitled to challenge decree and dismissed the Second Appeal. This petition is filed to R.P.No. 632/2008 in S.A.No. 601/2001 -2- condone the delay and also to review the said judgment. The case of the petitioners is that though a finding was called for under Rule 5 of Order XXII of Code of Civil Procedure, on the question whether both the appellants are the legal heirs of deceased Neelambaran, the learned Munsiff did not enter a finding on the question, whether the 2nd petitioner is a legal representative or not and instead entered a finding only that the 2nd respondent is a legally wedded wife of Neelambaran and as the marriage with the 1st appellant was subsequent to that marriage and the 1st petitioner is not the legal representative. Though the question whether the 2nd petitioner is a legal representative as provided under Section 16 of Hindu Marriage Act, even if she is a illegitimate child, was not considered by the learned Munsiff and the finding of the Trial Court was accepted by this court. This aspect was not taken note of and therefore appeal was dismissed and the judgment is therefore to be reviewed. Learned Counsel also submitted that the delay in filing the review petition is properly explained and in the interest of justice, the delay is also condoned. 2. Learned counsel appearing for the 1st respondent, the plaintiff in the suit argued that finding of learned Munsiff shows that R.P.No. 632/2008 in S.A.No. 601/2001 -3- the marriage of the 2nd respondent with Neelambaran was admitted by the petitioners before the learned Munsiff and the only contention was that the Neelambaran married 1st petitioner on 20.8.1998 and in such circumstances the 2nd petitioner cannot be the child born to Neelambaran and therefore 2nd respondent cannot be legitimate child of Neelambaran and hence cannot be claimed to be the legal representative. 2. Learned counsel appearing for petitioners and respondents. were heard. I find that when this court dismissed the appeal accepting the finding of the learned Munsiff the fact that there was no specific finding on the question whether the 2nd appellant was the one legal representative of deceased Neelambaran was not committed to take note of. Tt was presumed that the finding is that 2nd respondent and herself are the only legal representatives and not the appellants as is clear from the finding of the learned Munsiff, there is no finding on the legal status of the 2nd petitioner. In such circumstances that finding was accepted and the appeal was dismissed without taking note of the absence of a finding on the status of the 2nd petitioner. It is clearly an apparent error committed by this court which wants to be corrected. Hence the R.P.No. 632/2008 in S.A.No. 601/2001 -4- delay is condoned and the revision petition is allowed. The judgment dated 14.11.2007 is reviewed. The appeal is posted for argument considering the question whether the 2nd petitioner is one of the legal representative of the deceased defendant. Post before the regular court. M. SASIDHARAN NAMBIAR, JUDGE vkm