Dismissed

Earnest Stephen v. Barbera Stebeena

Kerala HC26 Sept 2012OP(C)/1478/2012

Case brief

AI extract

What is this about?

This original petitions regarding two suits involving partition and a deceased plaintiff's Will. The Court affirmed the lower court's acceptance of the Will for the current proceedings under Order XXII Rule 5 CPC but reserved the position on its res judicata effect in a parallel suit. No costs awarded.

What did the court decide?

The Original Petition is disposed of with the order of the court below affirmed subject to reservation regarding res judicata. No costs.

Earnest Stephen Vs Barbera Stebeena — Succession and Inheritance | Kerala HC (2012)

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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 V.CHITAMBARESH

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WEDNESDAY, THE 26TH DAY OF SEPTEMBER 2012/4TH ASWINA 1934

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OP(C).No. 1478 of 2012 (O)

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OS.432/1980 of SUB COURT,ERNAKULAM OS.411/1986 of SUB COURT,ERNAKULAM

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PETITIONER(S):

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EARNEST STEPHEN,

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S/O. LATE P.E. MATHEW RESIDING AT PADAPURACKAL HOUSE, KACHERIPADY NEAR NITHYASAHAYA MATHA CHURCH

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CHERANELLOOR.P.O - 682 034.

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PAUL DENNY,

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S/O. LATE P.E. MATHEW RESIDING NEAR HOUSE OF JOHNSON (VEGETABLE VENDOR)

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CHERANELLOOR.P.O - 682 034.

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BY ADVS.SRI.S.VINOD BHAT

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SRI.LEGITH T.KOTTAKKAL

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RESPONDENT(S):

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BARBERA STEBEENA

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W/O. SIMON, CHUMMAR HOUSE, RESIDING AT THAYANKERIL AMBALAKKADAVU, CHERANELLOOR.P.O - 682 034.

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PHILOMINA MERITTEE

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W/O. MONCY

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THAYANKERIL NOW RESIDING AT HOUSE NO. 14/21 THRIKKAKARA.P.O, KOCHI - 682 021.

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JOSEPH REUBEN

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S/O. LATE P.E. MATHEW, PADAPURAKKAL HOUSE HOUSE NO. 35/15, CHERANELLOOR PANCHAYATH CHERANELLOOR.P.O - 682 034.

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SHERLY JOHN

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W/O. JOHN DAVID, CHERICKALAGATHU HOUSE, MARATHUKUNNU ENKAKAD.P.O, THRISSUR DISTRICT - 680 589.

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JUSTINA SHEEBA

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W/O. THOMAS BASIL, THANNIKKAPARAMBIL, AMBALAKKADAVU CHERANELLOOR.P.O - 682 034.

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BY ADV. SRI.M.P.RAMNATH

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 26-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C) NO. 1478/2012

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APPENDIX

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PETITIONER(S) EXHIBITS

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EXHIBIT-P1-	TRUE COPY OF THE COMMON JUDGMENT DATED
	29/03/2003 IN O.S 432 /1980 AND 411/1986 OF THE
	SUB COURT, ERNAKULAM.

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EXHIBIT-P2-	TRUE COPY OF THE PETITION IN I.A 6182/2009
	IN I.A 3347/2005 IN O.S 411/1986 ON THE FILES OF
	THE SUB COURT, ERNAKULAM.

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EXHIBIT-P3-	TRUE COPY OF THE PETITION IN I.A 6183/2009 IN I.A 3346/2005 IN O.S 432/1980 ON THE FILE OF SUB COURT, ERNAKULAM.
EXHIBIT-P4-	TRUE COPY OF THE COUNTER AFFIDAVIT IN IA 6182/2009 IN I.A 3347/2005 IN O.S 411/1986 OF SUB COURT, ERNAKULAM.
EXHIBIT-P5-	TRUE COPY OF THE PLAINT IN O.S 343 OF 2010 OF THE SUB COURT, ERNAKULAM.
EXHIBIT-P6-	TRUE COPY OF THE WRITTEN STATEMENT IN O.S 343/2010 OF THE SUB COURT, ERNAKULAM.
EXHIBIT-P7-	TRUE COPY OF THE ORDER DATED 09/01/2012 IN I.A. 6182/2009 IN O.S 411/1986 AND IN I.A. 6183/2009 IN O.S 432/1980 OF THE SUB COURT, ERNAKULAM.

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RESPONDENTS' EXHIBITS : NIL

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/TRUE COPY/

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P.A. TO JUDGE.

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V. CHITAMBARESH, J

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OP(C) NO. 1478 OF 2012

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Dated this the 26^th day of September, 2012

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JUDGMENT

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O.S. No. 432/1980 on the file of the court of the

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Subordinate Judge of Ernakulam is a suit for partition of the property left behind by one Esthappanose. The additional 10^th plaintiff therein (P.E. Mathew) died pending final decree proceedings on 21.06.2009. His legal heirs who are the respondents in this Original Petition sought to rely on a 'Will' (document No. 194/2004, SRO, Ernakulam) dated 12.07.2004 alleged to have been executed by the additional 10^th plaintiff. The court below has by the order impugned accepted the 'Will' to be true and genuine for the purpose of proceeding with the suit.

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The oral and documentary evidence on the basis of which the 'Will' was upheld by the court below cannot be reappreciated in proceedings under Article 227 of the Constitution of India. Nevertheless the proceedings under Order XXII Rule 5 of the Code of Civil Procedure are summary in nature and the finding on the 'Will' will certainly bind the

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OP(C) No. 1478/2012

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parties as far as O.S. No. 432/1980 is concerned. The same in the case with regard to O.S. No. 411/1986 which is jointly tried along with O.S. No. 432/1980 in the same court.

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I however wish to add that the finding on the 'Will' in O.S. No. 432/1980 will not operate as res judicata in O.S. No. 343/2010 on the file of the court of the Subordinate Judge of Ernakulam. The said suit is one filed for partition by the children of deceased P.E. Mathew ignoring the 'Will' (document No. 194/2004).

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The order of the court below is affirmed subject to the above reservation and the Original Petition is disposed of. No costs.

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V. CHITAMBARESH JUDGE

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ncd

Earnest Stephen v. Barbera Stebeena

Case brief

What is this about?

What did the court decide?

Earnest Stephen v. Barbera Stebeena

Case brief

What is this about?

What did the court decide?

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