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PRAMEELA, W/O.ACHAUTHAN,45 YEARS versus KALATHIL SATHI, D/O.NARAYANI

High Court of Kerala

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PRAMEELA, W/O.ACHAUTHAN,45 YEARS v. KALATHIL SATHI, D/O.NARAYANI - CRP No. 127 of 2006 [2006] RD-KL 1613 (15 November 2006)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRP No. 127 of 2006()

1. PRAMEELA, W/O.ACHAUTHAN,45 YEARS,
... Petitioner

2. SON PRAVEEN, 27 YEARS DO.DO.

3. BROTHER RAHUL, 20 YEARS, DO.DO.

4. SISTER RAJINA, 20 YEARS, DO.DO.

Vs

1. KALATHIL SATHI, D/O.NARAYANI,
... Respondent

2. DAUGHTER SAPNA, OCCUPATION NIL,

For Petitioner :SRI.V.R.KESAVA KAIMAL

For Respondent :SRI.C.P.KUNJHIKANNAN

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

Dated :15/11/2006

O R D E R

M. SASIDHARAN NAMBIAR, J.

C.R.P. NO. 127 OF 2006

Dated this the 15th day of November, 2006.

O R D E R

The petitioners are legal heirs of the deceased judgment-debtor. The decree-holder Raman is no more. The respondents filed E.A. 722/2004 to get themselves impleaded as legal heirs of Radha, the wife of Raman who filed E.P. 262/2004 as legal heir of deceased Raman. E.A. 722/2004 was filed on the death of Radha contending that, as per the Will executed by Raman and Radha, their right devolved on them and therefore, they are entitled to continue the execution proceedings.

2. As per order dated 27.01.2006, learned Sub Judge, Thalassery allowed the application upholding the right claimed by the respondents under Ext. A1 and A2 Wills. This revision petition is filed by respondents challenging that order.

3. According to the respondents, Exts. A1 and A2 Wills are not genuine and were not executed by deceased Raman or Radha and on the death of Raman, respondents did not derive any right and court below should not have impleaded respondents as sought for in E.A. 722/2004. C.R.P.NO. 127/2006 2

4. The petitioners contended that, the executing court did not properly appreciate the evidence of PWs 1 or 2, including the attesting witnesses to the Wills or the discrepancy in Exts. A1 and A2 Wills and therefore, the order has to be set aside. Learned counsel appearing for the respondents argued that court below considered all the relevant aspects and there is no infirmity in that order and the revision is only to be dismissed.

5. The question to be considered in I.A. 722/2004 is whether respondents are entitled to get themselves impleaded in the execution petition on the death of Radha. Radha is admittedly, the wife of the decree-holder Raman. The petitioners are the wife and children of Achuthan, the brother of Raman. O.S. No. 473/1991 was filed by Raman for partition and separation of his half share in the co-ownership property. Final decree was passed dividing the properties into two and allotting one share to Raman. On the death of Raman, Radha is entitled to the property. That cannot be disputed as it is admitted that Radha is the sole legal heir of Raman. What is contended by petitioners is that, respondents did not derive any right under Ext. A1 Will and the Will is not genuine. Though Ext. A2 Will of Raman, where under Radha was given the property was also disputed, even without the Will, Radha will inherit all the rights of Raman and C.R.P.NO. 127/2006 3 that question is not of much relevance, on the facts of the case. Learned Sub Judge appreciated the evidence of PW2 and found that Ext. A1 Will is genuine and was executed by deceased Radha. For the purpose of deciding the question of right of respondents to get themselves impleaded in the execution petition, evidence of PW2, the attesting witness, along with Ext. A1 Will is sufficient. Court below only allowed respondents to get themselves impleaded as additional petitioners in the E.P on the death of the original petitioner Radha. For that purpose, court found that under Ext. A1 Will respondents are entitled to be impleaded. The finding of fact arrived at by the executing court on the appreciation of evidence and facts, cannot be re-appreciated and interfered in exercise of the revisional jurisdiction. Petitioners are at liberty to challenge the right of respondents under the Will in a properly instituted suit and in such a suit, the finding of validity of the Will in the impugned order, will not prevent the petitioners from disputing the Will. Revision Petition dismissed.

M. SASIDHARAN NAMBIAR, JUDGE.

smp


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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