IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 28TH MAY 2010 / 7TH JYAISHTA 1932 MFA.No. 156 of 2008() --------------------- OP(SUC.)13/2003 of PRINCIPAL SUB COURT,KOLLAM .................... APPELLANT(S): PETITIONER -------------- R.SIVASANKARA PILLAI, S/O.RAMAN PILLAI 56 YEARS, R/AT.THANKA PRABHA PUNNATHALA NORTH, THIRUMULLAVARAM PO. KOLLAM-12, FROM THATTARETH, KUNNATHUR WEST, KUNNATHUR EAST PO. (DIED) ADDL.APPELLANTS 2 AND 3 ARE IMPLEADED AS PER ORDER DT.21.5.2010 IN IA 3782/2009. ADDL.2. RAJALEKSHMI, W/O. LATE SIVASANKARA PILLAI, THANKAPRABHA, PUNNATHALA CHERY, KOLLAM. 3. ISHA, D/O. LATE SIVASANKARA PILLAI, THANKAPRABHA, PUNNATHALA CHERY, KOLLAM. BY ADV. SRI.T.M.CHANDRAN SRI.S.SUJITH SRI.V.A.SASIDHARAN SRI.JOSEPH ALBIN NEDUNTHALLY RESPONDENT(S): COUNTER PETITIONERS --------------- 1. NEELAKANTA PILLAI, 75 YEARS S/O.RAMAN PILLAI,56 YEARS, R/AT.THANKA PRABHA PUNNATHALA NORTH, THIRUMULLAVARAM PO., KOLLAM-12, FROM THATTARETH, KUNNATHUR WEST, KUNNATHUR EAST PO. 2. GOVINDA PILLAI, AGED 75 YEARS, S/O.RAMAN PILLAI, DO.DO. 3. LAKSHMIKUTTY PILLAI THANKACHI, AGED 68 YEARS, D/O.PARVATHI PILLAI THANKACHI R/AT.VAISAKH THARARETHU, KUNNATHOOR WEST, KUNNATHUR EAST PO. MFA.No. 156 of 2008 -2- 4. GOURI KUTTY PILLAI THANKACHI, AGED 65 YEARS, D/O.PARVATHI PILLAI THANKACHI, R/AT.GEETHAS, JYOTHI NAGAR, TRIVANDRUM FROM THATTARETHU, KUNNATHUR WEST, KUNNATHOOR EAST PO. 5. UNNI KRISHNA PILLAI, AGED 61 YEARS, S/O.RAMAN PILLAI R/AT.ANAKOTTUVAZHUVETIL KONNAMANKARA, ADOOR FROM THATTARETHU, KUNNATHOOR WEST, KUNNATHOOR EAST PO. ADV. SRI.S.MUHAMMED HANEEFF FOR R1 SRI.V.N.ACHUTHA KURUP, SENIOR ADVOCATE FOR R2,4 SRI.K.HARILAL FOR R2,4 SRI.BINDU SREEKUMAR FOR R2,4 SRI.LEENA MURALI FOR R2,4 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 28/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.F.A. 156 of 2008 ------------------------------------------------------ Dated: MAY 28, 2010 JUDGMENT Basheer, J. When this appeal is taken up for consideration, learned counsel for the respondents has raised a preliminary objection regarding the maintainability of this appeal before this court. He invites our attention to the proviso to sub-sec.(2) of sec.388 of the Indian Succession Act, 1925 in this regard. A perusal of the provisions contained in sec.384 read with the proviso referred to above will undoubtedly show that there is considerable merit in the above contention. 2. Learned counsel for the appellant submits that he is prepared to take back the records and present the appeal before the appropriate court. His only request is that he may be granted some reasonable time to do so in view of the ailment of the appellants who are now prosecuting the case after the death of the original appellant. 3. There is no dispute that this appeal had been presented before this court within the time prescribed under law. Therefore we are satisfied that the above prayer is only just and reasonable and can M.F.A. 156 of 2008 2 be allowed. We do so. 4. The Registry shall return the appeal documents to the learned counsel for the appellant for presentation before the proper court. If the appeal is presented before the court concerned within three weeks from today, the said court shall entertain the appeal ignoring the delay and dispose of the same in accordance with law. The appeal is disposed of in the above terms. A.K. BASHEER, JUDGE P.Q. BARKATH ALI, JUDGE mt/-