Dismissed

Yoseph v. Annakutty

Kerala HC5 Feb 2008CRP/360/2002

Case brief

AI extract

What is this about?

This court dismissed a civil revision petition challenging an appellate court order that refused an application to amend a plaint. The amendment sought to replace a claim of undue influence in executing a Will with an allegation of forgery. The lower court found the amendment was an attempt to raise an inconsistent plea at the appellate stage and would alter the nature of the dispute.

What did the court decide?

Civil Revision Petition Cr.P.No. 360 of 2002 permitted to lie for a period of six months for the purpose of filing a review (implicitly derived from dismissal with no order as to costs under Order VII

Yoseph Vs Annakutty — Specific Performance | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE K.T.SANKARAN

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TUESDAY, THE 5TH FEBRUARY 2008 / 16TH MAGHA 1929

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CRP.No. 360 of 2002(C)

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AGAINST THE ORDER DATED 15/12/2001 IN IA. NO.355/2000 IN AS.55/1999 of PRINCIPAL SUB COURT,KOCHI

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REVN. PETITIONER: PETITIONER: APPELLANT:

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JOSEPH, S/O. CHANDI, KADUNGAMPARAMBIL, KUMBALANGHI MURI, KUMBALANGHI VILLAGE, KOCHI TALUK.

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BY ADV. SRI.P.F.THOMAS (SR.) SRI.BIJU JOSEPH SRI.SHIJU VARGHESE SMT.A.K.RANI SRI.RAYNOLD FERNANDEZ

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RESPONDENTS: RESPONDENTS/RESPONDENTS:

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ANNAKUTTY, W/O. RAPHEAL KADUNGAMPARAMBIL KUMBALANGHI MURI, KUMBALANGHI VILLAGE,KOCHI TALUK.

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ALEX, S/O. ANNAKUTTY, -DO- -DO-.

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JAIMY, S/O. ANNAKUTTY, -DO- -DO-.

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DAS, S/O. ANNAKUTTY, -DO- -DO-.

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MARIYAMMA, D/O. ANNAKUTTY, -DO- -DO-.

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MARGARATTE, D/O. ANNAKUTTY, -DO- -DO-.

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VARUTHKUTTY, S/O. CHANDI, -DO- -DO-.

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AUGUSTINE, S/O. CHANDI, -DO- -DO-.

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R2, R5 & R7 BY ADV. SRI.M.K.CHETTIAR SRI.K.MOHAN

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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C.M.P.NO.794/2002 IN C.R.P.NO.360/2002

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DISMISSED

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05/02/2008 SD/- K.T.SANKARAN, JUDGE

//TRUE COPY//

AHZ/

K.T.SANKARAN, J.

C.R.P. NO. 360 OF 2002 C -------------------------------------------Dated this the 5^th February, 2008

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O R D E R

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The revision petitioner is the plaintiff in O.S.No.417 of 1997, Munsiff's Court, Kochi. The suit was filed for a declaration that Ext.B1 Will is null and void and for partition of the plaint schedule property. The case put forward in the plaint is that the plaintiff is entitled to a share in the property which belonged to Vilamma. At the instance of defendants 2 and 8, Vilamma was made to execute a Will under undue influence and coercion and also by exercising fraud on Vilamma. The trial court dismissed the suit. Plaintiff filed an appeal as A.S.No.55 of 1999, on the file of the Court of the Principal Sub Judge, Kochi. Before the Appellate Court, I.A.No.355 of 2000 was filed by the revision petitioner/plaintiff to amend the plaint. By the amendment sought to be introduced, the plaintiff wanted to delete that portion of the plaint in which it is stated that the Will was executed by the mother under fraud, coercion and undue influence and to substitute a contention that the second defendant and others had forged the signature of Vilamma and thus fabricated the Will.

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The application for amendment of the plaint was opposed by the respondents. They contended that if the amendment is allowed, it will

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C.R.P. NO.360 OF 2002

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:: 2 ::

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take away the admission made by the plaintiff regarding execution of the Will. It was also contended that the nature and character of the subject matter of the dispute would be considerably changed if the amendment is allowed to be made. The court below held that the amendment cannot be allowed as the admission regarding execution of the Will would be taken away if the amendment is allowed. The case put forward in the plaint was that the Will was executed by Vilamma under undue influence, coercion and misrepresentation of facts. By the amendment which was sought to be introduced, that contention was sought to be deleted. Instead, the contention which is sought to be put forward is that Vilamma had not executed the Will at all. By amendment, such inconsistent pleas cannot be sought to be introduced and that too at the appellate stage. The court below was fully justified in dismissing the application. No interference is called for in the Revision.

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Accordingly, the Civil Revision Petition is dismissed. No order as to

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costs.

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(K.T.SANKARAN) Judge

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ahz/

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K.T.SANKARAN, J.

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C.R.P.NO. 360 OF 2002 C

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O R D E R

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5^th February, 2008 -------------------------------------------

Yoseph v. Annakutty

Case brief

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Yoseph v. Annakutty

Case brief

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