Allowed

S. Saraswathy v. P.N. Jayaram

Kerala HC29 Nov 2012OP(C)/480/2012

Case brief

AI extract

What is this about?

In revision under Article 227, the High Court affirmed the lower court's refusal to recognize the petitioner's will. The bench held that summary proceedings do not allow evidence reappraisal but emphasized such findings are not res judicata for future declaration suits.

What did the court decide?

Original petition disposed of; liberty granted to file fresh suit for declaration based on the will; finding on will noted as non res judicata.

S. Saraswathy Vs P.N. Jayaram — 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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THURSDAY, THE 29TH DAY OF NOVEMBER 2012/8TH AGRAHAYANA 1934

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OP(C).No. 480 of 2012 (O)

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-----------------------------------[I.A.NO.1854/2011 & 1855/2011 IN O.S.NO.119/2006 OF SUB COURT, OTTAPPALAM]

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PETITIONER:

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S. SARASWATHY, W/O.LATE P.R.NARAYANAN, PERIMBADARI MADHAM. ARAKKURISSI AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT.

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BY ADVS.SRI.K.RAMACHANDRAN, SMT.S.JAYASREE.

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RESPONDENT:

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P.N. JAYARAM, S/O.LATE P.R.NARAYANAN, PERIMBADARI MADHAM, ARAKKURISSI AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT, PIN.678 582.

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BY ADV. SRI.N.K.KARNIS.

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 29-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Prv.

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O.P.(C). NO.480/2012-O:

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1TRUE COPY OF I.A.1854/2011 IN O.S.119/06 DATED 12.6.2011 BEFORE THE SUB COURT, OTTAPPALAM.

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EXHIBIT P2TRUE COPY OF I.A.1855/2011 IN O.S.119/06 DATED 12.6.2011 BEFORE THE SUB COURT, OTTAPPALAM.

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EXHIBIT P3TRUE COPY OF THE OBJECTION DATED 12.7.2011 FILED IN EXT.P1 I.A. EXHIBIT P4TRUE COPY OF THE ORDER IN I.A.1854/2011 & 1855/2011 IN O.S.119/06 OF THE SUB COURT, OTTAPPALAM, DATED 28.11.2011.

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RESPONDENT'S EXHIBITS: NIL.

//TRUE COPY//

P.A. TO JUDGE

Prv.

V.CHITAMBARESH,J.

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= = = = = = = = = = =

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O.P.(C) No.480 of 2012

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= = = = = = = = = = = == = = = = Dated this the 29^th day of November, 2012

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J U D G M E N T

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The plaintiff died on 16-3-2011 pending the suit for recovery of possession on title. His widow (the petitioner herein) sought impleadment as a legatee under an unregistered 'will' dated 24-2-2011. The court below has by the order impugned permitted impleadment as one of the legal heirs of the father and not as legatee.

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The court below has in the summary proceedings held that the execution of the 'will' is not duly proved. An analysis of the evidence on record is impermissible in proceedings under Article 227 of the Constitution of India. I am therefore not reappraising the evidence to find out whether the 'will' has been duly proved or not.

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But it is trite law that any finding on the 'will' in such summary proceedings will not operate as resjudicata in subsequent proceedings between the same parties. This is because the proceedings under Order XXII Rule 5 of the Code of

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O.P.(C) No.480 of 2012

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Civil Procedure are summary and not contentious (See. Govinda Nair vs. Janaki Amma (2001(2)KLT 360) .

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I affirm the order of the court below giving liberty to the parties to file a fresh suit for declaration on the basis of the 'will' and other consequential reliefs. The finding in the impugned order as regards the 'will' in question would not operate as resjudicata in those proceedings.

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The Original Petition (Civil) is disposed of.

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V.CHITAMBARESH. JUDGE

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smm

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O.P.(C) No.480 of 2012 3

S. Saraswathy v. P.N. Jayaram

Case brief

What is this about?

What did the court decide?

S. Saraswathy v. P.N. Jayaram

Case brief

What is this about?

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