IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 12TH JULY 2011 / 21ST ASHADHA 1933 OP(C).NO. 2214 OF 2011(O) -------------------------------------- I.A. NO. 6443 OF 2009 IN OS.34/1999 OF PRINCIPAL SUB COURT, TRIVANDRUM .................... PETITIONER: ------------------- GERALDINE JACOB,D/O.ADA ELIZABETH MIRANDA,608/29,NORTHERN HEIGHTS DRIVE,RICHMOND HILL ON L4B 4L8,CANADA,REP.BY POWER OF ATTOENRY HOLDER ALBERT MANUEL THOMAS,S/O.LATE DAVID RAJAN THOMKAS,DEOGARTIAS,F3A,POTHUJANAM ROAD,KUMARAPURAM MEDICAL COLLEGE PO,THIRUVANANTHAPURAM. BY ADV. SRI.CIBI THOMAS RESPONDENT(S): ------------------------- 1. BRENDA BABARA FRANCIS,D/O. LATE ADA ELIZABATH MIRANDA,HALCYON,PAKATTUVILA KUNNUKUZHY, THIRUVANANTHAPURAM,REP.BY POWER OF ATTOENRY HOLDER CAPT ALEXANDER FRANCIS,HB 27,PANAMPALLAY NAGAR, KOCHI-36. 2. ADRIAN G MIRANDA,S/O.LATE ALFRED H.MIRANDA,R/A HALCYON,PAKATTUVILA,KUNNUKUZHY, THIRUVANANTHAPURAM. 3. VINBITA R.PENTKAR,31 B 2ND FLOOR, EAST MARREDPALLY,SECUNDERABAD 500 326. 4. MRS.DOROTHY MIRANDA.S 482, AIR INDIA II, KALINA,SANTA CRUZ WEST BOMBAY,NOW R/AT SAGAR PLAZA CHS(CO-OPERATIVE HOUSING SOCIETY LTD.) OPP. MALWANI CHURCH,MALWANI VILLAGE,OFF MARVE ROAD, MALALD WEST 1, MUMBAI 400 095. 5. NIGEL MIRANDA,RESIDING DO NOW AT PO BOX 62685,DUBAI UAE. 6. KIM MIRANDA D" SOUZA,S 482,AIR INDIA COLONY,II KALINA ,SANTA CRUS,BOMBAY 400 029, NOW AT 11026,82 AVENUE,DELTA BC;B4C2B3,CANADA. 7. ALTHEA AYESHA GOYAL,RESIDING DO. 8. MRS MARISSA THAYUMAN,PB NO.1700,DUBAI, UAE,NOW AT C/O.GERARD GABRIEL,15/1 EAST MARRED PALLY,SECUNDERABAD 500 326. 9. GERARD GABRIEL,15/1 EAST MARRED PALLY,SECUNDERABAD 500 326. 10. MRS.KAREN GABRIEL,RESIDING DO. 11. RAMAKRISHNA PILLAI ,KAKKANAD VEEDU, ULLOOR,THIRUVANANTHAPURAM. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P(C) NO.2214 OF 2011 APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S. NO.34 OF 1999 OF THE PRINCIPAL SUB COURT, THIRUVANANTHAPURAM. EXHIBIT P2 TRUE COPY OF THE JUDGMENT IN O.S. NO.34 OF 1999 DATED 24.6.2009 OF PRINCIPAL SUB COURT, THIRUVANANTHAPURAM. EXHIBIT P3 TRUE COPY OF THE DECREE PASSED IN O.S. NO.34 OF 1999. EXHIBIT P4 TRUE COPY OF I.A. NO.6443 OF 2009 FILED BY THE PLAINTIFF. EXHIBIT P5 TRUE COPY OF I.A. NO.6442 OF 2009 FILED BY THE PLAINTIFF. EXHIBIT P6 TRUE COPY OF I.A. NO.3043 OF 2011. EXHIBIT P7 TRUE COPY OF I.A. NO.3044 OF 2011. EXHIBIT P8 TRUE COPY OF I.A. NO.3045 OF 2011. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY P.S. TO JUDGE THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.2214 of 2011 -------------------------------------- Dated this the 12th day of July, 2011. JUDGMENT Petitioner is the third defendant in O.S.No.34 of 1999 of the court of learned Principal Sub Judge, Thiruvananthapuram. That is a suit filed by the first respondent against petitioner and respondents 2 to 11 for partition and separate possession of properties. According to the petitioner, first respondent originally sought partition based on Will No.5 of 1985 dated January 11, 1985 said to be executed by Ada Elizabeth Miranda and later first respondent amended the plaint seeking partition of properties as one of the legal heirs of the said Ada Elizabeth Miranda giving a go-by to the Will. Only the second respondent/first defendant contested the suit, others remaining exparte. A preliminary decree was passed in the suit. Later first respondent filed I.A.No.6443 of 2009 (Ext.P4) to pass a final decree and the learned Principal Sub Judge allowed I.A.No.6442 of 2009 (Ext.P5) to appoint an Advocate Commissioner to submit a report and plan. At that stage petitioner got information about the pending suit and filed I.A.Nos.3043, 3044 and 3045 of 2011 (Exts.P6 to P8) to set aside the preliminary decree, condone the delay and stay the final decree proceedings contending that petitioner was working in Canada at the relevant time, that was known to the first respondent/plaintiff but OP(C) No.2214/2011 2 no summons was issued to her in that address and instead, notice was published in the Kerala Kaumudi, Thiruvananthapuram edition which went unnoticed by her. 2. Request of petitioner is to direct learned Principal Sub Judge to expedite disposal of Exts.P6 to P8, applications and in the meantime to stay proceedings on I.A.Nos.6442 and 6443 of 2009 (Exts.P5 and P4 respectively). Learned counsel submitted that petitioner stands by the Will executed by late Ada Elizabeth Miranda in which case she is entitled to get 1/5th share while as per the preliminary decree she gets only 1/6th share. It is also submitted that one of the legal heirs of the predeceased son of Ada Elizabeth Miranda though is a necessary party, has not been impleaded in the suit. 3. At this stage it is not necessary to stay proceedings on I.A.Nos.6442 and 6443 of 2011. Even if the Advocate Commissioner prepares and submits a report and plan as per the preliminary decree, that would not adversely affect petitioner if ultimately her plea is accepted. But having regard to the nature of contentions raised it is necessary that learned Principal Sub Judge considered Exts.P6 to P8, applications at the earliest and passed appropriate orders if preliminary steps on those applications are over. OP(C) No.2214/2011 3 Resultantly this Original Petition is disposed of directing learned Principal Sub Judge, Thiruvananthapuram to dispose of Exts.P6 to P8, applications (for setting aside the preliminary decree, condone the delay and for stay of final decree proceeding filed by petitioner(third defendant) at the earliest if preliminary steps on those applications are over and if there is no legal impediment in its disposal. THOMAS P.JOSEPH, Judge. cks