IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 18TH JUNE 2008 / 28TH JYAISHTA 1930 WP(C).No. 37354 of 2007(V) -------------------------- OS.662/2005 of I ADDL.SUB COURT,ERNAKULAM .................... PETITIONER: --------------------- T.I.GEORGE ,AGED 59 YEARS, RESIDING AT THAYANKERI HOUSE, MAROTTICHUVADU,EDAPPALLY, ERNAKULAM. BY ADV. SRI.O.BALANARAYANAN RESPONDENTS: ------------------------- 1. THANKAMMA JOSEPH, W/O.JOSEPH,RESIDING AT MENACHERY, NEAR INFANT JESUS SCHOOL, ALANKAD P.O. 2. MARIAMMA DEVIS, RESIDING AT KALAPPARMABATH HOUSE, KOTTAMURI P.O., MALA. 3. LILLY PAUL, W/O. M.T.PAUL, MULAVARIKKAL HOUSE,NEAR GOVT. HOSPITAL, NJARAKKAL POST. 4. ANNAMMA JOSEPH, VALOORAN HOUSE, NEAR MAJESTIC THEATER, NJARAKKAL POST. 5. ALICE MATHEW, ATHAPPILLY HOUSE, NEAR GOVT. HOSPITAL, MALA P.O. Kss ..2/- ..2.... WPC.NO.37354/2007 V 6. GRACY PAULSON, KANATTU HOUSE, NEAR PATEL SAW MILL, THEVARA P.O. RESPONDENTS 1 TO 6 WHO ARE PLAINTIFFS IN THE LOWER COURT REPRESENTED BY SRI. O.V.ABRAHAM, ADVOCATE, GOVERNMENT PRESS ROAD, ERNAKULAM WHO WERE REPRESENTING THEM IN THE LOWER COURT AND NOTICE TO BE ISSUED TO HIM. * 7.( THE PRESIDING OFFICER, FIRST ADDITIONAL SUB COURT ERNAKULAM.) - DELETED – AS PER ORDER DTD. 19/12/2007 IN UNNUMBERED I.A. BY ADV. SRI.S.VINOD BHAT R1TO6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/06/2008 ALONG WITH WPC NO. 2814 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.37354/2007 V APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT DTD. 14TH DECEMBER, 2005. EXT.P2: COPY OF THE JOINT WRITTEN STATEMENT OF LATE 1ST DEFENDANT AND 3RD DEFENDANT FILED IN MARCH 2006 DTD. 21/03/06. EXT.P3: COPY OF THE JOINT WRITTEN STATEMENT DEFENDANTS 7,8 AND 9 DTD. 10/03/06. /TRUE COPY/ P.S.TO JUDGE Kss M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NOS.37354/2007 & 2814 OF 2008 =========================== Dated this the 18th day of June, 2008 JUDGMENT Petitioner in W.P.(C)37354/2007 is the third defendant and petitioners in W.P.(C)2814/2008 are the plaintiffs in O.S.662/2005 on the file of Sub Court, Ernakulam. That suit was filed for partition of plaint schedule properties contending that on the death of the original owner Ittiara, his rights devolved on first defendant widow and children the plaintiffs and other defendants. The suit was contested by defendants except the second defendant who remained ex parte. While so, first defendant died. Plaintiffs filed I.A.4772/2007 an application under Order VI of Rule 17 of Code of Civil Procedure for amendment of the plaint introducing a plea that on the death of first defendant mother, her one third right devolved on all the children and therefore plaintiffs are entitled to get that share also. W.P.(C)37354/2007 &2814/2008 2 Exts.P3 to P5 objections were filed. Under Ext.P6 order learned Sub Judge dismissed the petition holding that it is a subsequent cause of action and so amendment cannot be permitted. W.P.(C) 2814/2008 is filed against Ext.P6 order. 2. After Ext.P6 order, the suit was in the special list on 10.12.2007. There was dispute before the trial court as to who shall begin the evidence first. Plaintiffs contended that it is for the defendants to adduce evidence. Defendants contended that it is for the plaintiffs to adduce evidence. Finally plaintiffs did not adduce evidence. According to the learned counsel appearing for petitioners in W.P.(C)No.37354/2007 plaintiffs reported that they have no oral evidence and evidence was partly recorded on the side of the third defendant. When third defendant was examined, the original will executed by late Ittiara produced by 7th defendant was shown to third defendant. He deposed that it is the will of their father. But the will was not allowed to be marked W.P.(C)37354/2007 &2814/2008 3 on the objections raised by plaintiffs for the reason that before marking proof regarding execution of the will is necessary. Third defendant also filed a witness list. Apprehending that third defendant will not get opportunity to examine the witnesses, W.P.(C) 37354/2007 was filed. 3. Learned counsel appearing for plaintiffs/ petitioners and third defendant/petitioner and other contesting defendants were also heard. 4. Suit is for partition of the properties which devolved on the widow and the children of late Ittiara. If Ittiara died intestate, his 1/3rd right will devolve on the widow and the balance will devolve on the children, Third defendant contended that Ittiara did not die intestate but had executed a will. When the suit was pending first defendant died. Her legal heirs are admittedly plaintiffs and defendants. If first defendant had 1/3rd right, on the date of her death, it will definitely devolve on all the children, if W.P.(C)37354/2007 &2814/2008 4 she died intestate. It is based on that claim plaintiffs sought amendment of the plaint in I.A.4772/2007. Learned Sub Judge was not justified in dismissing the application for the reason that the cause of action has arisen subsequent to the institution of the suit. When all the parties are there already on record and the suit is for partition, learned Sub Judge should have allowed the application for amendment so that the entire questions could be resolved in the present suit itself without compelling the parties to institute a further suit. Atleast for avoiding multiplicity of proceedings, learned Sub Judge should have allowed the application for amendment. Hence Ext.P6 order is quashed. Plaintiffs are permitted to amend the plaint as sought for in I.A.4772/2007. Defendants are entitled to file an additional written statement controverting the claim raised in the amended plaint. 5. When third defendant was examined a registered will produced by 7th defendant said to be W.P.(C)37354/2007 &2814/2008 5 executed by Ittiara was shown to the witness and the witness deposed that it is the will of their deceased father. In such circumstance, there was no impediment for the court to mark the same. True, marking of the will would not have served the purpose without proof of execution of the will. Apprehending that third defendant will not get opportunity to prove the will, W.P(C)37354/2007 was filed. I do not find any reason for petitioners to entertain apprehension of not getting opportunity to examine the witnesses. In view of the amendment of the plaint granted as sought for in W.P.(C)2814/2008, defendants are entitled to file an additional written statement and thereafter additional issues necessarily have to be framed. Parties are also entitled to adduce further evidence including examination of the witnesses sought for. 6. Learned counsel appearing for petitioner in W.P(C) 37354/2007 submitted that at the time of evidence, when questions were put not with regard W.P.(C)37354/2007 &2814/2008 6 to the subject matter of the dispute involved in the suit but with regard to the claim which may be later be raised by second defendant, who remained ex parte, learned Sub Judge did not record the objections raised. If valid objections are raised, Sub Judge is expected to record the same as provided under Rule 11 of Order XVIII of Code of Civil Procedure. Writ Petitions are disposed of as above. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006