IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 4TH AUGUST 2011 / 13TH SRAVANA 1933 OP (FC).No. 2080 of 2011(R) --------------------------- AGAINST THE ORDER IN IA 3289/2007 IN OP.630/1996 of FAMILY COURT,TRIVANDRUM .................... PETITIONER -------------------- SANTHAMMA @ KOUSALLYA,W/O.LATE K.SASI, SANTHA NIVAS, MANNADI LANE, AMBALAMUKKU, PEROORKADA, THIRUVANANTHAPURAM BY ADV. SRI.M.SREEKUMAR RESPONDENTS: --------------------- 1. T.THANKAMMA, VADAKKETHOTTARIKATHU VEEDU ANDAU, THIRUVANANTHAPURAM-695544 2. S.ANILKUMAR, VADAKKETHOTTARIKATHU VEEDU ANDAU, THIRUVANANTHAPURAM-695544 3. T.THILAKARANI, VADAKKETHOTTARIKATHU VEEDU, ANDAU, THIRUVANANTHAPURAM-695544 ADV. SRI.RAM MOHAN.G. FOR R1 TO 3 SRI.G.P.SHINOD FOR R1 TO 3 SRI.MANU V. FOR R1 TO 3 THIS O P (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 04/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : A TRUE COPY OF THE JUDGMENT OF THE FAMILY COURT THIRUVANANTHAPURAM IN OP 630/96 DT.13.12.05 EXT.P2 : A TRUE COPY OF FINAL DECREE APPLICATION, IA 1567/06 FILED BY THE HUSBAND OF THE PETITIONER DT.26.5.06 EXT.P3 : TRUE COPY OF the IMPLEADING PETITION IA.3289/07 IN OP 630/96 FILED BY RESPONDENTS DT.22.10.07 EXT.P4 : TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER DT.21.1.08 IN OP 630/96 EXT.P5 : TRUE COPY OF THE AFFIDAVIT FILED BY THE PETITIONER IN OP 630/96 DT.21.4.2009. EXT.P6 : TRUE COPY OF THE SCHEDULE OF DOCUMENTS PRODUCED BEFORE THE FAMILY COURT IN OP.630/96 BY THE PETITIONER. EXT.P7 : TRUE COPY OF THE ORDER IN IA 3289/07 IN OP.630/96 OF THE FAMILY COURT, THIRUVANANTHAPURAM DT.15.10.2010. EXT.P8 : TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN OP 630/96 DT. 21.6.1997 RESPONDENT'S EXHIBITS : NIL // TRUE COPY// PA TO JUDGE K. M. JOSEPH & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - O.P.(F.C.) No.2080 of 2011-R - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of August, 2011 JUDGMENT K.M. Joseph J., The petitioner has approached this Court with a petition under Article 227 of the Constitution of India challenging Ext.P7 order. 2. Briefly put, the case of the petitioner, is as follows. Petitioner is the respondent in O.P. No. 630 of 1996 on the file of the Family Court, Thiruvananthapuram. The said original petition was filed by the husband of the petitioner for partition of his ½ right over the plaint schedule property having an extent of 3 cents and a residential building situated therein. The marriage between them was solemnised in 1986. The husband of the petitioner purchased property with his own funds in the joint names of himself and the petitioner. Subsequently he constructed a O.P.(F.C.) No.2080 of 2011 :2: residential building. Thereafter the Original petition was filed seeking partition. According to the petitioner, the residential building was constructed by her after availing a loan. Ext.P1 is the judgment of the Family Court granting preliminary decree that plaint schedule property is to be partitioned by metes and bounds and the petitioner and her husband are equally entitled for ½ share. The husband died on 7.9.2007 after filing of final decree on 26.5.2006. According to the petitioner, she is the only surviving legal heir and hence the final decree application has become infructous. Thereafter the respondents, who are total strangers to the proceedings filed Ext.P3 application with a prayer to implead them in the final decree application as additional applicants claiming that they are the wife and children of the deceased husband of the petitioner. The petitioner filed objection as Ext.P3 and it was posted for evidence. Ext.P5 is the affidavit filed by the petitioner. She also produced 4 additional documents. The impleading petition was allowed. It was stated in the order that the claim of the respondents was admitted in the written statement as O.P.(F.C.) No.2080 of 2011 :3: well as in the chief affidavit and Ext.A3 and that they are also necessary parties to have an effective adjudication of the dispute. Ext.P8 purports to be the written statement filed by the petitioner which contains the alleged admission. 3. We heard learned counsel for the appellant and learned counsel for the respondents. 4. Learned counsel for the appellant would submit that the matter was posted for evidence and there is no admission at all in the counter affidavit. There is also no admission as such in the written statement and the Court below should have decided the matter after taking evidence, submits the learned counsel. Per contra, learned counsel for the respondents submits that proceedings are summary and that the matter can be decided finally and conclusively only on the original side. 5. There is no dispute that there is no such admission contained in the counter affidavit. We also notice that the matter was posted for evidence. 6. In such circumstances, we feel that the matter should be O.P.(F.C.) No.2080 of 2011 :4: decided with an opportunity to adduce evidence. Accordingly we set aside Ext.P7 and direct that the Family Court should take evidence, which can be adduced and take decision in the matter in terms of Order 22 Rule 5. We make it clear that we are not expressing any view on the merits of the matter. K. M. JOSEPH, (JUDGE) M. L. JOSEPH FRANCIS, (JUDGE) dl/