IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 3RD JUNE 2010 / 13TH JYAISTHA 1932 FAO.No. 134 of 2010() --------------------- AGAINST THE ORDER DATED 22/02/2008 IN IA.2565/2006 IN OS.14/1996 of II ADDL.DISTRICT COURT,ERNAKULAM .................... APPELLANT/PETITIONER/IST DEFENDANT ----------------------------- V.M.JOSSY, S/O.LATE MATHAI AGED 59 YEARS, NOW HAVING RESIDENCE AT C/O. KARUNAKA PILLAI, ASAN PARAMBIL NEAR ST.AUGUSTINE ROAD, AROOR, ALAPUZHA DISTRICT. BY ADV. SRI.JIMMY GEORGE (VATTATHARA) SRI.CARLTON THOMAS SRI.T.JEEJAN RESPONDENT(S): ---------------------------- 1. JAYAN, S/O.JOSSY, NOW RESIDING AT THEVANKATTU HOUSE, EDAKOCHI, KOCHI 682 006. 2. JOSEWA, S/O. JOSSY, NOW RESIDING AT THEVANKATTU HOUSE, EDAKOCHI, KOCHI 682 006. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 03/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss Thottathil B.Radhakrishnan & S.S.Satheesachandran, JJ. = = = = = = = = = = = = = = = = = = = = = = = = FAO.134/2010 & C.M.Appl.764/2010 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 3rd day of June, 2010. Judgment S.S.Satheesachandran, J. 1.The appeal is preferred against the dismissal of an application moved by the appellant for setting aside an order passed by the learned District Judge, Ernakulam granting a letters of administration in respect of a Will executed by one late Mathai. The executant of the Will, testator is none other than the father of the appellant. The bequest made in the Will, as seen from the impugned order passed by the learned District Judge, was in favour of the two minor children of the appellant. Initially, the appellant, as an applicant, had moved an original petition for grant of the letters of FAO134/10 & CMAppl.764/10 -: 2 :- administration representing his two minor children. Admittedly, in view of the contest raised by some of the respondents, who included the mother and also sisters of the appellant, the court below treated it as a contesting proceeding and directed for registering it as a suit. Once the suit was numbered, the appellant was directed to pay the court fee. The appellant having failed to pay the court fee, the suit was dismissed for default. Subsequently, the mother of the children moved a fresh application for issue of the letters of administration as LA(OP).608/1993. The appellant herein was shown as the first respondent among the respondents, who included his mother and sisters. The appellant was declared ex parte in the proceeding after having appeared before court. In view of the contest raised by some of the other respondents opposing the grant of letters of administration disputing the genuineness of the Will, the original petition was converted as a suit and ultimately, a decree was passed granting a letters of FAO134/10 & CMAppl.764/10 -: 3 :- administration to the applicant, mother. That ex parte decree was sought to be assailed by the appellant contending that he had no notice of the proceedings. The application after enquiry was dismissed by the court below not being satisfied with the cause shown for setting aside the decree passed ex parte. The appeal is presented with a petition to condone delay of 699 days against the order of the court below refusing to set aside the ex parte decree setting forth a case that he had been forced to leave his house and was wandering in different parts of India in search of a job. As already indicated, the cause so pleaded by the appellant was found unacceptable to the court below and the application was dismissed. 2.After having heard the learned counsel for the appellant at length with reference to the petition moved for condoning the delay, we find the totality of the facts and circumstances presented also deserves to be taken note of and FAO134/10 & CMAppl.764/10 -: 4 :- appreciated as to whether the delay is to be condoned and the appeal to be taken on the file of this Court for disposal on its merits. It is evident from the facts and circumstances presented that the appellant had sought for issue of a letters of administration of the Will executed by his father which indicated beyond the shadow of doubt that he had no case at that point of time nor any doubt over the genuineness of the Will. He did not contest the proceedings after that application was converted into a suit does not postulate that he had a case that the Will is not genuine. It is the argument of the learned counsel for the appellant that it was only later he realised that the Will was not genuine. There is nothing to indicate that the appellant was misled by any of the circumstances, especially where the bequest in the Will was made in favour of his two minor children. We find that there is no merit in the application moved for condonation of the delay and in that view of the matter, we find that the application and the appeal are only FAO134/10 & CMAppl.764/10 -: 5 :- to be dismissed. The application and the appeal are accordingly dismissed. Thottathil B.Radhakrishnan, Judge. S.S.Satheesachandran, Judge. Sha/0306