IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 13TH AUGUST 2009 / 22ND SRAVANA 1931 CRP.No. 1127 of 1999(G) ----------------------- AGAINST THE ORDER IN IA NOS. 605/95, 2001/95. 131/99, 10/99. 11/99, 12/99 & 13/99 IN I.A.2242/89 IN OS.129/1975 of PRINCIPAL SUB COURT, PALAKKAD .................... REVN. PETITIONER(S)/PETITIONER: ------------------------------------------------- JAYARAM, S/O. KUYILSWAMY GOUNDER, KALIYAPURAM, NAMEENPURAYAM PALAYAM, GRAMAM POLLACHI TALUK. BY ADV. SRI.O.RAMACHANDRAN NAMBIAR SMT.K.P.SANTHI RESPONDENT(S)/RESPONDENTS: --------------------------------------------- 1. SANTHALINGAM, S/O. ARUMUGAN KOUNDER, VILLUNNI, MANJIKUNNAMPATHI VILLAGE, CHITTUR TALUK. 2. MUHAMMEDKHAN SAHIB, S/O. HUSSAIN KHAN SAHIB, ANUPUR, OZHALAPATHI VILLGE, CHITTUR TALUK. 3. KUPPAMMAL, W/O. LATE MUTHUSWAMY GOUNDER, RESIDING AT DO. DO. (DIED) 4. RAMASWAMY, S/O. LATE MUTHUSWAMY GOUNDER, RESIDING AT DO. DO. 5. GOPALASWAMY, S/O. LATE MUTHUSWAMY GOUNDER, RESIDING AT DO. DO. 6. RAJESWARNI, W/O. LATE MUTHUSWAMY GOUNDER, RESIDING AT DO. DO. 7. KANAKESWARNI, D/O. LATE DO. DO. 8. RAJESWARI, D/O. LATE KUZHADHAVELU GOUNDER, RESIDING AT DO. DO. 9. MURUKESAN, S/O. LATE KUZHADHAVELU GOUNDER, DO. DO. R4 ABD R5 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF DECEASED R3 VIDE ORDER DTD.13.8.2009 IN MEMO CF.1967/06. ADV. SRI.T.M.SUNIL SMT.S.CHITHRA FOR R1, R4. THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/08/2009, ALONG WITH CMA NO. 143 OF 1999, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - C.R.P. No.1127 of 1999 & C.M.A. No. 143 of 1999 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of August, 2009. ORDER Raman, J, Both the Civil Revision Petition and Civil Miscellaneous Appeal arise out of a common order passed by the Subordinate Judge's Court, Palakkad in I.A. Nos. 605/1995, 2001/1995, 131/99, 10/99, 11/99, 12/99 and 13/99 in I.A.2242/89 in O.S. 129/1975. I.A. 2242 of 1989 is an application for passing final decree in a partition suit in consonance with the preliminary decree. Applicant is the plaintiff in the suit. During the pendency of the final decree proceedings, the plaintiff died. I.A. 605 of 1995 was filed by one Santhalingam to come on record as supplemental plaintiff/petitioner to prosecute the final decree application. I.A. 2001 of 1995 was filed by the first respondent-first defendant to the final decree application to permit him to come on record as the legal representative of the deceased C.R.P.1127/99 & C.M.A. 143/99. 2 plaintiff/final decree applicant. Evidence was taken in I.A. 605/1995. A will relied on by the petitioner in I.A. 605 of 1995 was admitted in evidence and was sought to be proved by examining one of the attestors as P.W.1. On the basis of the evidence, the court permitted the petitioner in I.A. 605 of 1995 to be impleaded as supplemental petitioner. Consequently, I.A. 2001 of 1995 was dismissed. Both the above orders were assailed in C.R.P.196 of 1996 and C.R.P.167 of 1996. This court allowed C.R.P. 196 of 1996 on the short ground that the order was cryptic and remanded the case to the court below. As a result of the above, C.R.P. 167 of 1996 was also allowed by way of remand. During the enquiry stage after remand, one Jayaram, a stranger to the proceedings sought to get himself impleaded as supplemental second petitioner in the final decree petition by filing I.A.10 of 1999. I.A. 11 of 1999 is an ancillary application for amendment and I.A. 12 of 1999 is an application to set aside the abatement and I.A. 13 of 1999 is an application to condone the delay in filing the C.R.P.1127/99 & C.M.A. 143/99. 3 application I.A. 12 of 1999. Meanwhile, first respondent to the final decree application and his legal heirs were impleaded as per I.A. 13 of 1999 as supplemental petitioners 2 to 4. These petitioners are none other than respondents 8 to 10 in the final decree application. 2. Actually the contesting respondent to the will set up by the petitioner in I.A. 605 of 1995 is first defendant. He disputed the genuineness and due execution of the will. The court below after analysing the evidence on record found that Ext.A1 will was proved. As regards the various other petitions filed by the stranger, his contention was that Ext.A1 will was subsequently cancelled by Ext.X2 and thereafter the testator has executed another unregistered will Ext.A2 by which he became the sole legatee. However, the original of Ext.X2 was not summoned before the court nor any of the attesting witnesses examined in the case. One of the attesting witnesses in Ext.A2, namely, R.W.1 was examined. The court below after discussing the evidence on record C.R.P.1127/99 & C.M.A. 143/99. 4 found that execution of Ext.X1 and Ext.A2 are not proved and that they are genuine. 3. The Appeal arises out of the order passed in I.A.605 of 1995, by which the court below accepted Ext.A1 will as valid and allowed Santhalingam, the petitioner therein to be impleaded as the legal representative of the deceased plaintiff/decree holder and final decree applicant. C.R.P. has been filed against the common order in the remaining petitions. 4. As the point involved is the same, we heard both these cases together. 5. The suit is one for partition of the plaint schedule properties. Subbayya Gounder had three sons, they are the plaintiff, first defendant and Pongiya Gounder. Pongiya Gounder died subsequently and his legal representatives are defendants 2 and 3. Plaintiff claimed one third right over the plaint schedule property. Preliminary decree was passed allotting one third right in favour of the plaintiff. Final decree application was filed. While C.R.P.1127/99 & C.M.A. 143/99. 5 that was pending, plaintiff died. Relying on Ext.A1 will, Santhalingam claimed to be the sole legatee entitled to succeed to the estate of the deceased plaintiff. Ext.A1 is a registered will and to prove the same, P.Ws. 1 and 2 were examined. P.W.2, the legatee under the will does not claim any role in the matter of preparation, execution and registration of Ext.A1 will. P.W.1 testified the he had seen the executant signing Ext.A1. He has also given evidence regarding the mutual witnessing of execution and attestation of the will by the testator and attesting witnesses. P.W.1 is none other than the Panchayat Vice-President of the local Panchayat. He also testified the fact that the testator had the capacity to execute the will and he was also had the power of discernment. The challenge to Ext.A1 is mainly relying on the subsequent will Ext.X2 and Ext.A2, which pre-supposes the existence of Ext.A1. No allegation of fraud was raised, nor brought it in evidence. Even after the remand, no steps were taken to cross-examine the witnesses except to say that whatever C.R.P.1127/99 & C.M.A. 143/99. 6 transpired before that were not binding on them. P.W.2, who is the legatee under the will, stated that he was assisting the deceased and extending all necessary help to him, which led to the bequeathing of assets in his favour. Admittedly original of Ext.X2 was not summoned and the legatee under Ext.X2 also did not come on record. The Sub Registrar, who was examined in the case had no personal knowledge about the execution of Ext.X2 since he was not in the office during the relevant period. The validity of Ext.A2 therefore depends on the proof and existence of Ext.X2. No satisfactory evidence was adduced with regard thereto. Ext.A2, though was pressed into service, the court below considered the evidence and found that it does not inspire confidence. 6. We heard both sides. 7. Admittedly, the legatee under Ext.A2 has instituted a suit O.S.112 of 1996 before the Sub Court, Palakkad. The plaint averment would show that he was aware of the pendency of the partition suit. Since he is claiming to be the sole legatee under the C.R.P.1127/99 & C.M.A. 143/99. 7 will, normally he would have rushed to the court for getting himself impleaded in the partition suit. But he came with an impleading petition after seeking to condone the delay and to set aside the abatement only in the year 1999. Be that it may. So long as Ext.A1 has been proved and even according to the revision petitioner herein, it was after cancelling Ext.A1 that Ext.X2 was executed, he does not seriously dispute the existence of Ext.A1. The court below has given cogent reasons to uphold Ext.A1. In such circumstances and for the limited purpose of deciding as to who is entitled to proceed with the partition suit, and in view of the pendency of O.S.112 of 1996, it is not necessary to go into the question regarding the validity or otherwise of Ext.X2 and A2. Being an interlocutory application for impleadment and in view of Ext.A1 having been proved, and in view of various circumstances as pointed out, we find that Santhalingam, who is the petitioner in I.A.605 of 1995 is entitled to continue the proceedings on behalf of the plaintiff. However, this is without prejudice to the contentions C.R.P.1127/99 & C.M.A. 143/99. 8 raised in O.S.112 of 1990 and it will be subject to such decision. Since in the very suit O.S.112 of 1996, the crucial question will be the validity or otherwise of Ext.X2 and Ext.A2, the finding in this regard against those documents is vacated. Subject to the above observation, the Civil Revision Petition is dismissed. In the light of the finding in the C.R.P., the Civil Miscellaneous Appeal is also dismissed, since we are not permitting the appellant to get himself impleaded. P.R. Raman, Judge P. Bhavadasan, Judge sb. C.R.P.1127/99 & C.M.A. 143/99. 9 P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - C.R.P. No.1127 of 1999 & C.M.A. No. 143 of 1999 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ORDER 13.08.2009.