Kerala High Court · 2012

WP(C).No. 12326 of 2010 (O) ----------------------------12. RAJESH, SON OF PADMANABHAN, VELLATTUPARAMBIL HOUSE, PERUMBILLISSERY P.O. NEAR KAPELA, CHRPU P.O., THRISSUR-680 561. R7 TO 10 & 12 BY ADVS.SRI.T.M.CHANDRAN SRI.V.A.SASIDHARAN SRI.JOSEPH ALBIN NEDUNTHALLY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-11-2012, ALONG WITH CRP NO.149/2010, THE COURT ON THE SAME DAYDELIVERED THE FOLLOWING:VK WP(C).No. 12326 of 2010 (O) ----------------------------APPENDIX--------PETITIONER'S EXHIBITS---------------------EXT.P1. COPY OF THE JUDGMENT DATED 27.02.1999 IN O.S. NO.547/1997 OFTHE ADDITIONAL MUNSIFF COURT, THRISSUR. EXT.P2. COPY OF I.A.NO.8140/2006 IN O.S.NO.540/1997 ON THE FILE OF THEADDITIONAL MUNSIFF COURT, THRISSUR. EXT.P3. COPY OF I.A.NO.8141/2006 IN O.S.NO.540/1997 ON THE FILE OF THEADDITIONAL MUNSIFF COURT, THRISSUR. EXT.P4. COPY OF I.A.NO.8143/2006 IN O.S.NO.540/1997 ON THE FILE OF THEADDITIONAL MUNSIFF COURT, THRISSUR. EXT.P5. COPY OF I.A.NO.8140/2006 IN O.S.NO.540/1997 ON THE FILE OF THEADDITIONAL MUNSIFF COURT, THRISSUR. EXT.P6. COPY OF THE ORDER IN I.A.NO.8141/2006 IN O.S.NO.540/1997 ON THEFILE OF THE ADDITIONAL MUNSIFF COURT, THRISSUR. EXT.P7. COPY OF THE ORDER IN I.A.NO.8143/2006 IN O.S.NO.540/1997 ON THEFILE OF THE ADDITIONAL MUNSIFF COURT, THRISSUR. EXT.P8. COPIES OF THE ORDERS C.M.A. NO.18 OF 2007 OF THE ADDITIONALDISTRICT COURT, THRISSUR. EXT.P9.COPIES OF THE ORDERS C.M.A. NO.19 OF 2007 OF THE ADDITIONALDISTRICT COURT, THRISSUR. EXT.P10.COPIES OF THE ORDERS C.M.A. NO.20 OF 2007 OF THE ADDITIONALDISTRICT COURT, THRISSUR. RESPONDENT'S EXHIBITS: NIL--------------------/ TRUE COPY /P.A. TO JUDGEVK V.CHITAMBARESH,J. = = = = = = = = = = = W.P.(C) No. 12326 of 2010& C.R.P No.149 of 2010 = = = = = = = = = = = == = = = = Dated this the 30th day of November, 2012 J U D G M E N TThe property left behind by one Subramanian Achari wassought to be partitioned in O.S No.540/1997 on the file of theCourt of the Munsiff of Thrissur. Subramanian Achari had threechildren in his first wife and five children in his second wife. Thesuit has been filed by one of the daughters of SubramanianAchari in his second wife impleading her brothers and sistersborn to her mother. The preliminary decree for partition waspassed on 27-2-1999 and final decree proceedings are pending. 2. The petitioner in these cases claims to be the grandsonof Subramanian Achari (born to Krishnan Achari who is the sonin the second wife). He stated that he knew about the suit forpartition only when the Advocate Commissioner conducted aninspection in the final decree proceedings. Thereupon thepetitioner filed I.A Nos.8140/2006, 8141/2006, 8142/2006 and8143/2006 to stay the final decree, to amend the plaint, to set W.P.(C) No. 12326 of 2010 C.R.P No.149 of 20102aside the preliminary decree and to implead in the final decree.The court below has by the order impugned dismissed all thefour interlocutory applications and the same is challenged inthese cases.3. The petitioner contends that none of the children bornin the first wife of Subramanian Achari have been impleaded inthe suit. It is asserted that the preliminary decree passed behindtheir back is vitiated by fraud among other grounds. Myattention was invited to the evidence of the plaintiff in the suitwherein she testified that the first wife of Subramanian Acharihad no children. The petitioner in essence wants to get himselfimpleaded so that a supplementary preliminary decree could bepassed after allotting shares to the children born in the first wifeof Subramanian Achari.4. But then whether the first wife of Subramanian Acharihad three children as alleged and whether the father of thepetitioner is one of the sons born to the first wife requiresdeeper probe. There is paucity of evidence to establish thepaternity of the children born in the first wife of SubramanianAchari at this juncture and tangible evidence is required in this W.P.(C) No. 12326 of 2010 C.R.P No.149 of 20103regard. The petitioner seeks an opportunity to adduce evidenceto establish that Subramanian Achari had children in his firstwife also who are entitled to a share. I am inclined to accede tothis request and remand the case to the court below to enablethe parties to adduce better evidence.5. The petitioner has undoubtedly to furnish the addressesof all the children born in the first wife of Subramanian Achari sothat steps for impleadment could be taken. I set aside theimpugned order and remand I.A Nos.8140/2006 , 8141/2006 and8142/2006 ,8143/2006 to the court below. The parties willappear in the court below on 3-1-2013. The proceedings shall betaken to a logical end without delay. The Civil Revision Petition and the Writ petition aredisposed of. V.CHITAMBARESH.JUDGEsmm1. The 3rd sentence in the first paragraph of the commonjudgment dated 30-11-2012 in W.P(C)No.12326/2010 and C.R.P149/2010 is corrected and substituted as “the suit has been filedby one of the daughters of Subramanian Achari, in his 2nd wifeimpleading one of her brothers wife and brothers and childrenand sisters born to her mother. W.P.(C) No. 12326 of 2010 C.R.P No.149 of 20104 2. The words “second wife” occurring in the first sentenceof paragraph 2 are corrected as “first wife”.3. The words “three children” occurring in the firstsentence of paragraph 4 are corrected as “four children”.The above corrections are made as per order dated22-01-2013 in I.A 112/2013 in C.R.P 149/2010Sd/-Registrar (Judicial) W.P.(C) No. 12326 of 2010 C.R.P No.149 of 20105