IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 16TH FEBRUARY 2010 / 27TH MAGHA 1931 CRP.No. 969 of 2002(H) ---------------------- AGAINST THE ORDER DATED 06/11/2001 IN IA.2398 /2001 IN OS.440/1997 of I ADDL.M.C.,NEYYATTINKARA .................... REVN. PETITIONER(S)/REVN. PETITIONER/PETITIONERS/PLAINTIFFS: ------------------------------------------------------------- 1. GANGADHARA PANICKER BHASKARAN, MEELACHAKKUZHI KARAKKATTU PUTHEN VEEDU, PARASUVAIKKAL DESOM, DO. VILLAGE. 2. CHELLAMMA INDIRA, KURUVIKKADU PUTHEN VEEDU, IDICHAKKA PLAMOODU, PARASSALA DESOM, PARASSALA VILLAGE. BY ADV. SRI.R.T.PRADEEP RESPONDENT(S)/RESPONDENTS/COUNTER PETITIONERS/DEFENDANTS: ---------------------------------------------------------- 1. GANGADHARA PANICKER RAVEENDRAN S/O. GANGADHARA PANICKER, RESIDING AT KARAKKATTU PUTHEN VEEDU, IDICHAKKAPLAMOODU, PARASUVAIKAL DESOM, PARSUVAIKAL VILLAGE, NEYYATTINKARA TALUK, NOW RESIDING AT SAJEEV BHAVAN IDICHAKKAPLAMOODU. 2. GANGADHARA PANICKER VASUDEVAN, RESIDING AT DO. DO. WORKING AS U.D. TYPIST AT DISTRICT INDUSTRIES CENTRE, VALLAYAMBALAM, THIRUVANANTHAPURAM. 3. GANGADHARA PANICKER MADHU, MEELACHAKUZHI KARAKKATTU PUTHEN VEEDU, PARASUVAIKKAL DESOM. 4. GANGADHARA PANICKER SASI, S/O.GANGADHARA PANICKER RESIDING AT DO. DO. 5. CHELLAMMA VALSALA, D/O. CHELLAMMA, RESIDING AT DO. DO. 6. CHELLAMMA USHA, D/O. CHELLAMMA, RESIDING AT DO. DO. ADV. SRI.G.S.REGHUNATH FOR R4 SRI.L.MOHANAN FOR R3 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/02/2010 ALONG WITH CRP NO.973 OF 2002 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN C.M.P.NO.2532/02 IN CRP.969/02 DISMISSED. 16.2.2010 SD/- S.S.SATHEESACHANDRAN, JUDGE /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- C.R.P.NOS.969 & 973 OF 2002 () ----------------------------------- Dated this the 16th day of February, 2010 O R D E R These two revisions are filed by the plaintiffs in O.S.No.440 of 1997 on the file of the I Additional Munsiff Court, Neyyattinkara. The above suit is one for partition. A preliminary decree had already been passed in the suit. Plaintiffs, two in number, and defendants 2 to 7, are the children of the 1st defendant. The 1st defendant father passed away during the pendency of the final decree proceedings. On the death of the 1st defendant, I.A.No.2269 of 2001 was filed by the 4th defendant claiming that the 1st defendant father had bequeathed his rights in the plaint property in favour of him and the 5th defendant under Ext.A1 will. The plaintiffs filed another application as I.A.No.2398 of 2001 to record them along with the defendants 2 to 7 as the legal heirs of the deceased 1st defendant. Both the applications were considered together by the court below and evidence was taken in I.A.No.2269 of 2001 treating it as the main petition. C.R.P.NOS.969 & 973 OF 2002 2 In the enquiry on that petition, the 3rd defendant, who was one of the attesters of Ext.A1 will was examined as PW1. One among the plaintiffs, 2nd plaintiff also got herself examined as RW1. The plaintiffs had disputed the genuineness of Ext.A1 will contending that it was not signed by the father but a forged document. The learned Munsiff, after considering the materials produced and hearing the counsel on both sides, allowed I.A.No.2269 of 2001 filed by the 4th defendant ordering the impleadment of 4th and 5th defendants as the legal representatives of the 1st defendant. The application, I.A.No.2398 of 2001, moved by the plaintiffs was dismissed. Feeling aggrieved, the two revisions have been filed against the respective orders, though passed in common, by the plaintiffs. 2. I heard the counsel on both sides. At the time of hearing, it has been brought to my notice that in the preliminary decree, the plaintiffs alone have been allotted share in the plaint property ordering allotment of 1/9th share in 36 cents of property, directing them to move for passing of C.R.P.NOS.969 & 973 OF 2002 3 final decree to have a separate possession. No allotment had been made to any of the defendants as they have not applied for passing any decree for separate possession in their favour. So much so, in the final decree proceedings arising from the preliminary decree passed by the court, any division as between the legal heirs in respect of the share of the 1st defendant over the plaint property does not arise for consideration. Further more, on the death of the 1st defendant as to who are the legal heirs to be brought on record is only for the purpose of continuation of the proceedings. The enquiry contemplated under Order XXII Rule 5 of the Code of Civil Procedure is only for the purpose of representing the estate of the deceased as to who should be substituted in the place of deceased 1st defendant. That enquiry is summary in character and the order passed thereof no way affect the substantive rights of the parties, which can be adjudicated by them in proper proceedings as provided by law. So much so, the impugned orders passed by the court, no doubt, will not cause any prejudice to the right of the plaintiffs. So much so, the revision filed against the order passed by the court below, C.R.P.NOS.969 & 973 OF 2002 4 which at the most is only for substituting the 4th and 5th defendants to represent the estate of the 1st defendant in continuation of the proceedings, does not require serious consideration. Though the court below has allowed I.A.No.2269 of 2001 accepting Ext.A1 will since the findings is based on summary enquiry, needless to point out, it is not final and conclusive on the disputed question over the will, but only made for the purpose of substituting the legal heirs of the 1st defendant. That being so, I find no interference with the order of the court below is called for. Revisions are closed. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. ------------------------------- C.R.P.NOS.969 & 973 OF 2002 () ----------------------------------- O R D E R 16th day of February, 2010