IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 25TH OCTOBER 2011 / 3RD KARTHIKA 1933 OP(C).No. 1642 of 2011(O) -------------------------------------- OS.171/2006 of II ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM. .................... PETITIONER/DEFENDANT -------------------------------------- ANNIE MASCRENE, AGED 57, D/O.JOSEPH MASCRENE, RESIDING AT T.C.NO.15/1660, MASCRENE LANE, THYCAUD VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.P.PUSHPARAJAN, SRI.SREEVALSAN.V. RESPONDENT/PLAINTIFF -------------------------------------- G.R. SREERAJ, S/O.RADHA, RESIDING AT NEETHI, T.C.25/3233/3, AMBUJAVILASAM ROAD, VANCHIYOOR, TRIVANDRUM, PIN-695 004. BY THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 25/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs OP(C).No. 1642 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE SPECIAL LEAVE TO APPEAL (CIVIL) NO.9200/2006 DATED 02/03/2009. EXT.P2: COPY OF THE JUDGMENT IN WP(C) NO. 17391/2010 (O) DATED 11/06/2010 OF HONOURABLE HIGH COURT. EXT.P3: COPY OF THE I.A. NO.9918/2010 FILED BEFORE THE HONOURABLE MUNSIFF COURT, THIRUVANANTHAPURAM. EXT.P4: COPY OF THE ORDER OF THE ORDER IN I.A. NO.9918/2010 IN O.S. NO.171/2006 DATED 11/03/2011. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.S. TO JUDGE rs THOMAS P.JOSEPH, J. ==================================== O.P(C) No.1642 of 2011 ==================================== Dated this the 25th day of October, 2011 J U D G M E N T Respondent is served but there is no response. 2. Exhibit P4, order dated 11.03.2011 on I.A. No.9918 of 2010 in O.S. No.171 of 2006 passed by learned Additional Munsiff- II, Thiruvananthapuram is under challenge. 3. Respondent claiming to be a legal heir of late Peter Mascrene entitled to inherit his property, filed O.S. No.171 of 2006 for partition and separate possession of his share in 6.25 cents scheduled in the plaint. Petitioner-defendant is the sister of the said Peter Mascrene. Petitioner contended that respondent is not a legal heir of Peter Mascrene entitled to inherit to his estate for the reason that his mother is a Hindu Nair married to George Mascrene, brother of Peter Mascrene, that the marriage is not valid in the eye of law, there was no proper marriage solemnized and hence respondent could not be a legal heir of Peter Mascrene entitled to inherit his estate. In the course of the suit there was an application for amendment of plaint which was allowed which petitioner challenged in this Court in W.P(C) No.17931 of 2010. That Writ Petition was disposed of as per Ext.P2, judgment making O.P(C) No.1642 of 2011 -: 2 :- it clear that petitioner, in answer to the amended plaint is entitled to raise appropriate contentions and if necessary, additional issues also could be raised. In view of the above observation petitioner filed I.A. No.9918 of 2010 to review the order whereby the learned Additional Munsiff framed issues in the case. According to the learned counsel, apart from the issues already framed it was necessary to frame an additional issues as to the validity of marriage between respondent's father and mother and whether respondent is a legal heir of Peter Mascrene. Request for review was disallowed by the learned learned Munsiff as per Ext.P4, order which is under challenge. 4. Learned counsel asserts that father of respondent has married a Hindu lady (in which wedlock respondent is born), it is not a valid marriage and there was no proper ceremonies also to constitute a valid marriage. According to the learned counsel, respondent cannot be a legal heir of the deceased Peter Mascrene and is not entitled to inherit the estate of the said Peter Mascrene. Grievance of petitioner is that no issue in that line is framed by the learned Munsiff notwithstanding the observations contained in Ext.P2, judgment of this Court. O.P(C) No.1642 of 2011 -: 3 :- 5. By the order sought to be reviewed, the following issues are framed: 1. Whether plaintiff is entitled to inherit the estate of later Peter Mascrene? 2. Whether plaint schedule property is partible? If so, what shall be the share to be allotted to the plaintiff? 3. Reliefs and costs. 6. Issue No.1 referred above relates to the entitlement of respondent (as he claims) to inherit the estate of late Peter Mascrene. Respondent can inherit the estate of Peter Mascrene only if he is a legal heir of Peter Mascrene. In other words while dealing with issue No.1 it is open to the petitioner to raise the contention that in the absence of a valid marriage between the parents of respondent, he is not a legal heir of Peter Mascrene entitled to inherit the estate of Peter Mascrene. Since issue No.1 is comprehensive enough to take in the contention petitioner has raised as to the disentitlement of respondent to inherit the estate of late Peter Mascrene, no separate issue regarding O.P(C) No.1642 of 2011 -: 4 :- validity of marriage is required to be raised. I do not find reason to interfere with the impugned order. I make it clear that while deciding issue No.1 it is open to the petitioner to raise her contention that there is no valid marriage between parents of the respondent and respondent is not a legal heir of late Peter Mascrene entitled to inherit the estate of the said Peter Mascrene. Original Petition is closed with the above observations. THOMAS P. JOSEPH, JUDGE. vsv