Partly allowed

Pushpa Balan and Others v. Shanmughan and Another

Kerala HC8 Sept 2009CRP/411/2009

Case brief

AI extract

What is this about?

High Court set aside Munsiff's order which rejected impleadment of wife and children as additional plaintiffs in a partition suit. Directed lower court to give further opportunity to petitioners to produce additional evidence of legal heir status.

What did the court decide?

Set aside order rejecting impleadment; directed to give petitioners further opportunity to produce additional evidence of legal heir status.

Pushpa Balan and Others Vs Shanmughan and Another — Partition | Kerala HC (2009)

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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 S.S.SATHEESACHANDRAN

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TUESDAY, THE 8TH SEPTEMBER 2009 / 17TH BHADRA 1931

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CRP.No. 411 of 2009()

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-----------------------------I.A.424/2008 IN OS.455/1990 of PRL.MUNSIFF COURT, CHERTHALA

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REVN. PETITIONERS/PLAINTIFFS

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-----------------------------------------------

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1. PUSHPA BALAN, WIFE OF LATE A.K.BAHULEYAN, NARAYANAPPA COMPOUND, N.G.ROAD, 6TH CROSS, ATTAVAR, MANGALORE - 575 001.

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2. KARUNAKARA, S/O.LATE A.K.BAHULEYAN, NARAYANAPPA COMPOUND, N.G.ROAD, 6TH CROSS, ATTAVAR, MANGALORE - 575 001.

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3. VIJAYALAKSHMI, D/O.LATE A.K.BAHULEYAN, NARAYANAPPA COMPOUND, N.G.ROAD, 6TH CROSS, ATTAVAR, MANGALORE - 575 001.

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4. KALAVATHI, D/O.LATE A.K.BAHULEYAN, NARAYANAPPA COMPOUND, N.G.ROAD, 6TH CROSS, ATTAVAR, MANGALORE - 575 001.

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BY ADV. MR.V.L.SHENOY MR.L.JAYAWANTH

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RESPONDENTS/DEFENDANTS

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--------------------------------------------

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1. SHANMUGHAN M., PUTHENVELIYIL, THEKKU MURI, CHERTHALA THEKKU VILLAGE.

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2. A.K. KARTHIKEYAN, ALUMKAL, THEKKU MURI, CHERTHALA THEKKU VILLAGE.

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R1 & R2 BY ADV. DR.V.N.SANKARJEE, SMT.R.UDAYA JYOTHI.

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRP.No. 411 of 2009

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ORDER ON I.A. NO.2044/2009 IN C.R.P. NO.411/2009

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DISMISSED

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08/09/2009.

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SD/- S.S.SATHEESACHANDRAN, JUDGE

//TRUE COPY//

P.A. TO JUDGE

rs.

S.S.SATHEESACHANDRAN, J.

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C.R.P.No.411 of 2009 - B

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Dated this the 8^th day of September, 2009

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O R D E R

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The revision is directed against the order dated 2.4.2009 in I.A.No.424 of 2008 in O.S.No.455 of 1990 passed by the Principal Munsiff, Cherthala. The above suit was one for partition in which a preliminary decree had already been passed. During the pendency of the final decree proceedings, the sole plaintiff namely, A.K.Bahuleyan, passed away. Petitioners claiming to be the wife and children of late A.K.Bahuleyan applied for impleading them as additional plaintiffs, which was objected to by the defendants disputing their status as legal heirs of the deceased Bahuleyan. To substantiate their legal status as the wife and children, petitioners produced a survival certificate issued by the revenue authority. The court below was not satisfied with the certificate as it contained an endorsement that the certificate should not be treated as legal heir ship certificate of the deceased. Propriety and correctness of that order is challenged in this revision.

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C.R.P.No.411 of 2009 - B

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I heard the learned counsel on both sides.

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A photocopy of the certificate issued by the revenue

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authority to the petitioners was handed over to me by the learned counsel for the petitioners for perusal. I find no impropriety in the conclusion reached by the learned Munsiff that the certificate produced was not sufficient to enter a finding that the petitioners are the wife and children of late Bahuleyan. Still, in a case of this nature, where substantive rights of the parties over immovable properties are involved and especially when the certificate issued by the revenue authorities show the legal status even if that certificate is found to be not sufficient for accepting the status of the parties the interest of justice demand granting

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further opportunity to the petitioners to produce better documents to substantiate their legal status. The learned counsel for the petitioners submits that given an opportunity the petitioners shall produce ration card, electoral card etc. to prove their status as the legal heirs of late Bahuleyan. Needless to point out when substitution on the death of a party arises for consideration in the proceedings the enquiry is only of a summary

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C.R.P.No.411 of 2009 - B

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nature establishing of status with conclusive proof is not at all contemplated. If materials produced prima facie satisfy the court that the persons who seek impleadment can be substituted as legal heirs of the deceased party and unless such impleadment is shown to be unacceptable by cogent and convincing reasons by the opposite party in proceedings, as the enquiry is of summary nature, the normal course is to allow such substitution bringing them as additional parties to proceed further with the case. I find in the given facts of the case the the petitioners should be given one more opportunity to substantiate their status. Setting aside the impugned order, the court below is directed to give further opportunity to the petitioners produce additional evidence to prove their status as legal heirs of the deceased plaintiff.

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The revision is disposed of with the above direction.

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S.S.SATHEESACHANDRAN, JUDGE.

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bkn/-

Pushpa Balan and Others v. Shanmughan and Another

Case brief

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Pushpa Balan and Others v. Shanmughan and Another

Case brief

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