IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 25TH SEPTEMBER 2008 / 3RD ASWINA 1930 WP(C).No. 27972 of 2008(E) -------------------------- OS.312/2003 of MUNSIFF COURT, THIRUVALLA .................... PETITIONER(S): --------------- JACOB P. ABRAHAM (MONACHAN) S/O. OOMMMEN ABRAHAM, THANNICKAL SANKARAPURIYIL HOUSE, ERAVIPEROOR P.O., VATTAKKOTTU MURIYIL, ERAVIPEROOR VILLAGE, THIRUVALLA. BY ADV. SRI.M.V.THAMBAN SRI.R.REJI SRI.B.BIPIN RESPONDENT(S): --------------- 1. MARYKUTTY JOH, MUMINIYIL PUTHERN VEEDU, MANGUZHY, CHERUTHANA THEKKUM MURI, CHERUTHANA VILLAGE, KARTHIKAPPALLY TALUK. 2. T.ABRAHAM OOMMEN,(KUNJUMON) S/O. OOMMEN ABRAHAM, THANNICKAL SANKARAPURIYIL HOUSE, ERAVIPEROOR P.O., VATTAKKOTTU MURIYIL, ERAVIPEROOR VILLAGE, THIRUVALLA, (NOW PRESENT ADDRESS)P.O.BOX NO.24389, DUBAI U.A.E. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = W.P.(c).No.27972 of 2008 = = = = = = = = = = = = = = Dated this the 25 th day of September, 2008 JUDGMENT Petitioner, who is the 2nd defendant in O.S.No.312 of 2003 on the file of the Munsiff's Court, Thiruvalla challenges Ext.P6 order dated 22.7.08 passed by the court below allowing amendment of the plaint. 2. The said suit has been filed by a mother and a daughter by name Saramma Abraham and Marykutty John seeking partition and separate possession of their shares over the plaint schedule property. Pending the suit, the 1st plaintiff/mother died on 28.10.03. The 2nd plaintiff and defendants 1 and 2 are the legal heirs of the deceased 1st plaintiff. Consequent on the death of 1st plaintiff, there was resultant change in the shares necessitating the 2nd plaintiff to file I.A.No.2615/2007 for incorporating the revised claim with regard to the shares over the suit properties. As per Ext.P6 impugned order dated 22.7.08, the court below allowed the said application to amend the plaint. It is the said order which is assailed in this writ W.P.(c).No.27972 of 2008 2 petition filed by the 2nd defendant. 3. The learned counsel for the petitioner submitted that the 1st plaintiff died as early as on 28.10.2003 her but legal representatives were not impleaded and consequent on the lapse of 90 days fixed for impleading the legal heirs , the court had passed an order on 26.2.04 to the effect that the suit stands abated as regards the 2nd plaintiff. Thereafter, the 2nd plaintiff could not have filed the application for amendment of the plaint in a suit which stood abated. 4. I am afraid that I cannot agree with the above submissions. Admittedly the 2nd plaintiff and defendants 1 and 2 are the legal heirs of the 1st plaintiff consequent on her death on 28.10.03. What was necessary was only to record the fact that the 2nd plaintiff is the legal representative of the 1st plaintiff besides defendants 1 and 2 . When the legal representatives are already on the party array as the 2nd plaintiff and defendants 1 and 2, there was no question of abatement of the suit for the alleged non-impleadment of the legal heirs within 90 days fixed by the law of limitation. Hence the proceedings recorded by the court below on 26.2.04 to the effect that the suit as against the W.P.(c).No.27972 of 2008 3 2nd plaintiff had abatted was really illegal which may precisely be the reason why the court below itself treated the suit as pending. The 2nd plaintiff was well within her rights in applying for amendment of the plaint for change in the shares consequent on the death of the 1st plaintiff. The court below also cannot be faulted in allowing the amendment. I see no good ground to interfere with the order passed by the court below. This writ petition is accordingly dismissed. Dated this the 25 th day of September, 2008. V. RAMKUMAR, JUDGE sj