IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 1ST JULY 2010 / 10TH ASHADHA 1932 WP(C).No. 11250 of 2010(O) -------------------------- AGAINST THE ORDER IN IA 1497/2008 IN OS.54/1999 of II ADDL.SUB COURT,TRIVANDRUM .................... PETITIONERS: --------------- 1. VIJAYAMMA, D/O.PONNAMMA, AGED 70 YEARS, BEENA COTTAGE, T.C.30/11, PETTAH P.O., THIRUVANANTHAPURAM 2. P.AJITHKUMAR, S/O.PONNAPPAN, AGED 41, -DO- -DO- 3. P.VINOD KUMAR, AGED 39 YEARS, -DO- -DO- 4. P.RAJESH, AGED 36 YEARS, -DO- -DO- -DO- 5. V.BEENA, D/O.VIJAYAMMA, AGED 47 YEARS, -DO- -DO- 6. V.GEETHA, AGED 45 YEARS, -DO- -DO- -DO- 7. V.SAJINI, AGED 43 YEARS, -DO- -DO- -DO- BY ADV. SRI.M.R.ANANDAKUTTAN SMT.M.A.ZOHRA SRI.R.S.MADHU SRI.MAHESH ANANDAKUTTAN RESPONDENTS: --------------- 1. MOHANAN @ CHANDRAMOHANAN, S/O.K.S.PONNAPPAN, AGED 54 YEARS, KAMUKUVILAKOM, MARAKADA ROAD, CHALAI, THIRUVANANTHAPURAM 2. CHAKRAN @ SURESH BEENA COTTAGE, PETTAH, THIRUVANANTHAPURAM 3. VISWAMBHARAN NAIR, AGED 77 YEARS, TC 38/2156, KAMUKUVILAKOM, MAFAKKADA ROAD, CHALAI, THIRUVANANTHAPURAM 4. GEETHA, D/O.SUMATHY KUTTY AMMA, AGED 48 YEARS, -DO- -DO- -DO- -DO- W.P.C.No.11250 of 2010 5. LATHA, D/O. -DO- -DO- -DO- AGED 48 YEARS, 6. AYYAPPAN PILLAI, S/O.T.MURUGAN PILLAI, SREE PANKAJ, KALLUMOODU, KADAKAMPALLY, ANAYARA P.O., THIRUVANANTHAPURAM 7. ANITHA BEEGOM, ALUMMOODU VIKKOM VEEDU, KARAMANA P.O., THIRUVANANTHAPURAM 8. SAINULABDEEN, S/O.MANSOOR, -DO- -DO- -DO- 9. VIJAYAN, S/O.CHELLAPPAN PILLAI, AYANIMOODU VEEDU, NETTA, NEDUMANGAD, THIRUVANANTHAPURAM 10. V.GIREESH KUMAR, VYKUNTAM, T.C.25/2135, MANJALIKKULAM ROAD, THIRUVANANTHAPURAM 11. G.RETHIDEVI, D/O.GOMATHI AMMAL, -DO- -DO- ADV. SRI.K.B.PRADEEP FOR R1 SMT.N.G.SINDHU FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.C.No.11250 of 2010 APPENDIX PETITIONERS' EXHIBITS: EXHIBIT P1 : PLAINT – O.S.No.54 OF 1999 EXHIBIT P2 : WRITTEN STATEMENT IN O.S.No.54 OF 1999 EXHIBIT P3 : AMENDMENT PETITION I.A.NO.1497 OF 2008 IN O.S.No.54 OF 1999 OF THE SUB COURT, THIRUVANANTHAPURAM EXHIBIT P4 : IMPLEADING PETITION EXHIBIT P5 : ORDER IN I.A.No.1497/08 IN O.S.No.54 OF 1999 RESPONDENTS' EXHIBITS: NIL True Copy P.A. To Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.11250 of 2010 --------------------------------------- Dated this 01st day of July, 2010 JUDGMENT Challenge in this writ petition is against Ext.P5, order allowing amendment of plaint in a suit for partition. Parties are referred to as plaintiffs and defendants as in the trial court for convenience. 2. As per the plaint averments as originally stood plaintiff No.1 is the legally wedded wife of the late Ponnappan and plaintiff No.2 and defendant No.1 are children born in that wedlock. It is also the case of plaintiffs that the late Ponnappan had some affair with defendant No.2 and that defendant Nos.3 to 8 are born in that relationship. Plaintiffs claimed that themselves and defendant No.1 being the legal heirs of the said Ponnappan are entitled to 3/9th shares in the suit property. They stated that defendant Nos.3 to 8 being illegitimate children of the late Ponnappan are entitled to the remaining shares in the suit property. Defendant Nos.2 to 8 resisted the suit contending that plaintiff No.1 is not the legally wedded wife of the said Ponnappan and that plaintiffs and defendant No.1 are not entitled to any share. They claimed that defendant No.2 is the legally wedded wife of the late Ponnappan W.P.C.No.11250 of 2010 : 2 : and that defendant Nos.3 to 8 are born in that wedlock and hence property has devolved on defendant Nos.2 to 8. While so, plaintiff No.1 (Sumathy Kutty Amma) expired. Thereon, on the application of plaintiff No.2, defendant Nos. 9 to 17 were impleaded. Later, plaintiff No.2 filed I.A.No.1497 of 2008 for amendment of the plaint. In the affidavit in support of the application it is stated that though Ponnappan had legally married deceased plaintiff No.1 (Sumathy Kutty Amma), that marriage ended in a divorce in the year 1953 and that deceased plaintiff No.1 then married additional defendant No.9 in which wedlock, additional defendant Nos.10 to 17 are born. It is also stated in the affidavit in support of the application that since defendant Nos.3 to 8 are no legal heirs of the said Ponnappan they are not entitled to succeed to his estate. Plaintiff No.2 therefore contended that since the marriage between the late Ponnappan and deceased plaintiff No.1 (Sumathy Kutty Amma) ended in a divorce in the 1953 she no longer continued to be a legal heir of said Ponnappan. In the light of that contention there was change in the shares plaintiff No.1 and defendant No.1 are entitled to. Learned Sub Judge allowed the amendment which is under challenge in this writ petition. Learned counsel for petitioners/defendant Nos.2 to 8 contend that amendment goes against the averments in the plaint, it changed W.P.C.No.11250 of 2010 : 3 : nature and character of the suit and even attributed illegitimacy to defendant Nos.2 to 8. According to the learned counsel in the circumstance court below was not correct in allowing the amendment. Learned counsel for respondent No.1/plaintiff No.1 supported the order under challenge. 3. It is true that plaint as originally filed proceeded on the basis that plaintiff No.1 continued to be the legally wedded wife of the late Ponnappan until his death and succeeded to the estate of deceased Ponnappan along with plaintiff No.1, defendant No.1 and defendant Nos.3 to 8. But in the application for amendment it is conceded by plaintiff No.2 that there was a divorce in the year 1953 between the late Ponnappan and deceased plaintiff No.1 and hence the latter ceased to be a legal heir. Amendment in that line, I am unable to accept brought about any way change in the nature and character of the suit in that the suit continued to be one for partition though there happened to be difference in shares which plaintiff No.2 and defendant No.1 claimed. 4. The other matter required to be incorporated in the plaint by amendment is that though in the original plaint it is stated that defendant Nos.3 to 8 in spite of being illegitimate children of the late Ponnappan are also entitled to a share along with plaintiff No.1 and defendant No.1, by amendment it is W.P.C.No.11250 of 2010 : 4 : contended that defendant Nos.3 to 8 are not entitled to any share. It is open to plaintiff No.2 to contend so if necessary by an amendment but, that does not in anyway change the nature and character of the suit. It is a different matter that it is open to defendant Nos.2 to 8 to contend as before that defendant No.2 being the legally wedded wife of the late Ponnappan and defendant Nos.3 to 8 being children born in that wedlock they alone are entitled to succeed to his estate. Defendant Nos. 2 to 8 contend that there was no legal marriage between deceased plaintiff No.1 and the late Ponnappan and as such, plaintiff No.1 or defendant No.1 are not entitled to any share. These are matters which the court below has to decide after the trial. 5. On going through the original plaint, application for amendment and the order under challenge I do not find reason to interfere with the impugned order allowing amendment. Petitioners/defendant Nos.2 to 8 will get the chance to file additional written statement in answer to the amended plaint taking up appropriate contentions as they are entitled to. There is no merit in the writ petition. It is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-