IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 2ND MARCH 2009 / 11TH PHALGUNA 1930 WP(C).No. 6074 of 2009(O) ------------------------- AGAINST THE ORDER IN IA.1879/2007 IN OS.224/1994 of PRINCIPAL SUB COURT,ALAPPUZHA .................... PETITIONERS: --------------- 1. S.L. SASIKARA, AGED 45 YEARS, W/O.LATE VASANTHAKUMAR, NOW RESIDING AT GILARA (LOVE DALE), ZILLA COURT WARD, ALAPPUZHA, FROM THAIPARAMBU MADAM, BOAT JETTY ROAD, ALAPPUZHA. 2. V.GAYATHRI, D/O. LATE VASANTHAKUMAR, NOW RESIDING AT GILARA (LOVE DALE), ZILLA COURT WARD, ALAPPUZHA, FROM THAIPARAMBU MADAM BOAT JETTY ROAD, ALAPPUZHA. BY ADV. SRI.S.SANAL KUMAR RESPONDENTS: ----------------- 1. C.PRAVEEN, S/O. CHANDRAKESH, AGED 25 YEARS, RESIDING AT THAIPARAMBU MADAM, BOAT JETTY ROAD, ALAPPUZHA. 2. S.CHANDRAKESH, S/O. SREENIVASA MALLAN, RESIDING AT THAIPARAMBU MADAM, BOAT JETTY ROAD, ALAPPUZHA. 3. S.NANDAKUMAR, S/O. SREENIVASA MALLAN, RESIDING AT THAIPARAMBU MADAM, BOAT JETTY ROAD, ALAPPUZHA. 4. S.MOHANKUMAR, S/O. SREENIVASA MALLAN, RESIDING AT THAIPARAMBU MADAM, BOAT JETTY ROAD, ALAPPUZHA (CLUB STORES, MULLACKAL, ALAPPUZHA 5. KRISHNAKUMARI, D/O. SREENIVASA MALLAN, RESIDING AT SUKRITHIYIL, THAMMANAM, ERNAKULAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 6074 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of March, 2009 JUDGMENT Predecessor in interest of the petitioners was the third defendant in OS No.224/94 of Sub Court, Alappuzha. The suit was for partition. A preliminary decree was passed. Later a final decree was also passed. In the final decree proceedings, the third defendant participated. He filed objection to the Commissioner's report and plan and he wanted allotment of an item of the property. He appeared before court and later the allotment was changed. The third defendant was allotted one item in the plaint schedule property and he was granted a sum of Rs.38,315/- as owelty amount. He received owelty amount and the matter became final. Final decree was passed on compromise on 13.02.06, the court below having accepted the compromise. 2. The third defendant was a doctor. He died on 04.06.06 within about four months of the date of passing of the final decree. The legal representatives of the third defendant filed IA No.1879/07 to set aside the final decree stating that the final decree proceedings WP(C) No.6074 OF 2009 -:2:- are vitiated by fraud. It was contended that the third defendant was not practising for about two years before his death and he was keeping aloof from his family members. It is sated that he left the house and was residing in one of the rooms in the plaint schedule property. The allegation is that the third defendant was suffering from psychiatric ailment and bipolar depression. It is stated that the third defendant was incapable of understanding matters and the compromise was entered into without his free will and volition. The other contention is that when compared to the other sharers, properties having lesser value were allotted to the share of the third defendant in the final decree. His legal representatives were not aware of the compromise. They came to know about the compromise only later and immediately they filed application before the Court. 3. Before the court below, the first petitioner was examined as PW1 and another witness was examined as PW2. PW2 is a doctor. The court below found that the evidence of PW2 is not sufficient to conclude that the third defendant was suffering from mental ailment. WP(C) No.6074 OF 2009 -:3:- On behalf of the respondents, RW1, Administrative officer of the Life Insurance Corporation of India was examined. The 3rd defendant was senior medical officer of the Life Insurance Corporation of India. RW1 deposed that the third defendant was authorised to issue certificates to the policy holders. RW1 stated that till 04.05.06 the third defendant acted in that capacity and the certificates issued by him were accepted by the LIC. 4. The court below considered the evidence and materials available before it and held that the petitioners failed to produce any material to come to the conclusion that the deceased third defendant was suffering from any ailment much less mental ailment. The court below held hat it was not proved that there was any fraud at the instance of the other share holders. The admitted facts and circumstances led the court below to the conclusion that the third defendant was capable of understanding things. He participated in the final decree proceedings, appeared before court and entered into compromise and accepted the owelty amount. The court below concluded that the petition is devoid of merits. In my view, there is WP(C) No.6074 OF 2009 -:4:- no illegality or irregularity warranting interference in the well considered order of the court below. The writ petition is devoid of merits and it is accordingly dismissed. (K.T.SANKARAN) JUDGE ttb