Allowed

Usha Devi v. Gopinathan

Kerala HC4 Feb 2013OP(C)/183/2013

Case brief

AI extract

What is this about?

This original petition challenges an order refusing to implead the petitioner as an additional defendant in a partition suit. The High Court set aside the impugned order, held that the question of necessity for impleadment depends on the outcome of a pending related suit regarding a will, and directed a stay on the trial and impleadment application until the final decision of that related suit and

What did the court decide?

Set aside the impugned order refusing impleadment; remitted the application for fresh decision; directed that disposal of the application and trial of the suit be stayed until the final decision in th

Usha Devi Vs Gopinathan — Succession and Inheritance | Kerala HC (2013)

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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 THOMAS P.JOSEPH

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MONDAY, THE 4TH DAY OF FEBRUARY 2013/15TH MAGHA 1934

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OP(C).No. 183 of 2013 (O)

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IA.NO.6555/2010 IN OS NO.661/2003 of PRINCIPAL SUB COURT,THRISSUR PETITIONER(S):

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USHA DEVI

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D/O. LATE M. BHASAKARA MENON, FLAT NO. 2D, C-BLOCK CHAKKOLAS, WILLINGDON ENCLAVE, CHAKKOLAS HABITAT THEVARA FERRY ROAD, KOCHI-682013.

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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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GOPINATHAN

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GOPINIVAS, S/O. MANNATH BHASKARA MENON KOTTAPPURAM DESOM, THRISSUR VILLAGE AND TALUK PALLIYIL LANE, KOTTAPPURAM ROAD, THRISSUR-680004.

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VIJAYAKUMAR

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S/O. MANNATH BHASKARA MENON, KOTTAPPURAM DESOM THRISSUR VILLAGE AND TALUK, PALLIYL LANE KOTTAPPURAM ROAD, THRISSUR-680004.

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THANKAMMA ALIAS PADMAJA D/O. THEKKUMANNATH CHINNAMMA, NAIKKANAL DESOM THRISSUR VILLAGE AND TALUK, THRISSUR-680001.

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GOPINATHA MENON S/O.THEKKUMANNATH CHINNAMMA, NAIKKANAL DESOM THRISSUR VILLAGE AND TALUK, THRISSUR-680001.

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RAVEENDRANATHA MENON S/O.THEKKUMANNATH CHINNAMMA, NAIKKANAL DESOM THRISSUR VILLAGE AND TALUK, THRISSUR-680001.

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SANTHAKUMARA MENON S/O.THEKKUMANNATH CHINNAMMA, NAIKKANAL DESOM THRISSUR VILLAGE AND TALUK, THRISSUR-680001.

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GOPALAKRISHNA MENON S/O.THEKKUMANNATH CHINNAMMA, NAIKKANAL DESOM THRISSUR VILLAGE AND TALUK, THRISSUR-680001.

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PANKAJI A MENON W/O. LATE ACHUKUTTAN, NAIKKANAL DESOM THRISSUR VILLAGE AND TALUK, THRISSUR-680001.

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OP(C) NO.183/2013

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KRISHNANJALI MENON D/O. PANKAJI A MENON, NAIKKANAL DESOM THRISSUR VILLAGE AND TALUK, THRISSUR-680001.

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JYOTHILEKSHMI D/O. PANKAJI A MENON, S/O. THEKKEMANNATH CHINNAMMA NAIKKANAL DESOM, THRISSUR VILLAGE AND TALUK THRISSUR-680001.

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PARVATHY DEVI D/O. THEKKEMANNATH KIZHAKKATHIL LATE PARUKUTTY NAIKKANAL DESOM, THRISSUR VILLAGE AND TALUK THRISSUR-680001.

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JAYA D/O. MANNATH THANKAM @ PADMAJA, NAIKKANAL DESOM THRISSUR VILLAGE AND TALUK, THRISSUR-680001.

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MAYA D/O.MANNATH THANKAM @ PADMAJA, NAIKKANAL DESOM THRISSUR VILLAGE AND TALUK, THRISSUR-680001.

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NARAYANAN S/O. MANNATH THANKAM @ PADMAJA, NAIKKANAL DESOM THRISSUR VILLAGE AND TALUK, THRISSUR-680001.

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MURALEEDHARAN S/O.MANNATH THANKAM @ PADMAJA, NAIKKANAL DESOM THRISSUR VILLAGE AND TALUK, THRISSUR-680001.

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MUHAMMED BHASHEER, S/O. ABDUL RAHIMAN, POUVATHPARAMBIL HOUSE, KOTTAPPURAM DESOM, THRISSUR VILLAGE AND TALUK THRISSUR-680001.

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MUHAMMED MOOSA S/O.ABDUL RAHIMAN, POUVATHPARAMBIL HOUSE, KOTTAPPURAM DESOM, THRISSUR VILLAGE AND TALUK THRISSUR-680001.

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SALAM S/O.ABDUL RAHIMAN, POUVATHPARAMBIL HOUSE, KOTTAPPURAM DESOM, THRISSUR VILLAGE AND TALUK THRISSUR-680001.

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UMMER S/O.ABDUL RAHIMAN, POUVATHPARAMBIL HOUSE, KOTTAPPURAM DESOM, THRISSUR VILLAGE AND TALUK THRISSUR-680001.

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ABDUL ASSEES S/O.ABDUL RAHIMAN, POUVATHPARAMBIL HOUSE KOTTAPPURAM DESOM, THRISSUR VILLAGE AND TALUK THRISSUR-680001.

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SHAJAHAN S/O.ABDUL RAHIMAN, POVATHPARAMBIL HOUSE KOTTAPPURAM DESOM, THRISSUR VILLAGE AND TALUK THRISSUR 680 001.

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OP(C) NO.183/2013

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NOUSHAD S/O.ABDUL RAHIMAN, POUVATHPARAMBIL HOUSE KOTTAPPURAM DESOM, THRISSUR VILALGE AND TALUK THRISSUR 680 001.

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SAKIR HUSSAIN S/O.ABDUL RAHIMAN, POUVATHPARAMBIL HOUSE KOTTAPPURAM DESOM, THRISSUR VILALGE AND TALUK THRISSUR 680 001.

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RADHAKRISHNAN TC 35/1122, S/O.PONNUSWAMI CHETTIYAR, NAIKKANAL DESOM THRISSUR 680 001.

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BABURAJ

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S/O.PONNUSWAMI CHETTIYAR, NAIKKANAL DESOM THRISSUR 680 001.

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MANIKANDAN S/O.PONNUSWAMI CHETTIYAR, NAIKKANAL DESOM THRISSUR 680 001.

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MEENAKSHIKUTTY (DIED) DO.LAKSHMIKUTTY AMMA, KUMAR NIVAS, THEKKEMURI AMSOM DESOM, OTTAPALAM TALUK, OTTAPALAM 679 101.

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KHADAR

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S/O.PANIKKASSERY KADAVIL KUNJI HYDROSE EDATHIRINJI AMSOM, KODUNGALLUR TALUK KODUNGALLUR 695 013

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ABDUL MAJEED S/O.KARUPAM VEETTIL MUHAMMED, CHOOLUR DESOM EDATHIRINJI AMSOM, KODUNGALLUR TALUK KODUNGALLUR 695 013.

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NAZEER

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S/O.KARUPAM VEETTIL MUHAMMED, CHOOLUR DESOM EDATHIRINJI AMSOM, KODUNGALLUR TALUK KODUNGALLUR 695 013.

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IBRAHIM S/O.KARUPAM VEETTIL MUHAMMED, CHOOLUR DESOM EDATHIRINJI AMSOM, KODUNGALLUR TALUK KODUNGALLUR 695 013.

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HUSSAIN

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S/O.MANJALAMKUNNATH AHAMMED, PUNNAYUR DESOM EADAKAZHIYUR AMSOM, CHAVAKKAD TALUK CHAVAKKAD 680 506.

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MUHAMMED KUTTY

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S/O.PALLATH THARIKUTTY @ KUNJAMMA, AALAMKODE DESOM THIRUMATTOMKODE VILLAGE, OTTAPPALAM TALUK OTTAPALAM 679 101.

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RAVEENDRANATHA MENON KUMARI NIVAS, THEKKUMURI AMSOM, DESOM OTTAPALAM TALUK 679 101.

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OP(C) NO.183/2013

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SATHEESH

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S/O.RAVEENDRANATHA MENON, KUMARI NIVAS THEKKUMURI AMSOM, DESOM, OTTAPALAM TALUK 679 101.

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MEENA

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D/O.RAVEENDRANATHA MENON, KUMARI NIVAS THEKKUMURI AMSOM, DESOM, OTTAPALAM TALUK 679 101.

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JAYA

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D/O.RAVEENDRANATHA MENON, KUMARI NIVAS THEKKUMURI AMSOM, DESOM, OTTAPALAM TALUK 679 101

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USHA GOPINATHA

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W/O.GOPINATHAN, S/O.THEKKEMANNATH CHINNAMMA, NAIKKANAL DESOM THRISSUR TALUK, THRISSUR 680 001.

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SURESH

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S/O.USHA GOPINATHAN, NAIKKANAL DESOM, THRISSUR TALUK THRISSUR 680 001.

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REMESH

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S/O.USHA GOPINATHAN, NAIKKANAL DESOM, THRISSUR TALUK THRISSUR 680 001.

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SREEDEVI D/O.USHA GOPINATHAN, NAIKKANAL DESOM, THRISSUR TALUK THRISSUR 680 001.

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R1 & R2 BY ADV. SRI.SANTHOSH P. PODUVAL R1 & R2 BY ADV. SMT.R.RAJITHA R7 BY ADV. SRI.ANIL S.RAJ R7 BY ADV. SMT.K.N.RAJANI R7 BY ADV. SMT.ANILA PETER R7 BY ADV. SRI.J.VIVEK GEORGE

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 04-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C) NO.183/2013

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APPENDIX

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PETITIONER(S) EXHIBITS

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EXHIBIT P1. COPY OF THE APPLICATION IA 6555/10 IN OS 661/03 OF PRINCIPAL SUB COURT, THRISSUR.

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EXHIBIT P2. COPY OF THE JUDGMENT DATED 11.6.12 IN OS 260/06 ON THE FILE OF IST ADDITIONAL SUB COURT, THRISSUR.

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EXHIBIT P3. COPY OF THE APPEAL MEMORANDUM AS 241/2012 ON THE FILE OF DISTRICT COURT, THRISSUR.

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EXHIBIT P4. COPY OF THE ORDER DATED 3.8.2012 IN IA 6555/2010 IN OS 661/2003 OF PRINCIPAL SUB COURT, THRISSUR.

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EXHIBIT P5. COPY OF THE PLAINT OS 661/2003 OF THE SUB COURT, THRISSUR.

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RESPONDENTS' EXHIBITS: NIL

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P.S. TO JUDGE

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//TRUE COPY//

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THOMAS P.JOSEPH, J.

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==================================== O.P(C) No.183 of 2013

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====================================

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Dated this the 04^th day of February, 2013

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J U D G M E N T

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Respondents are served through their counsel in the trial court.

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This Original Petition is in challenge of Ext.P4, order dated 03.08.2012 on I.A. No.6555 of 2010 in O.S. No.661 of 2003 of Principal Sub Court, Thrissur refusing to implead petitioner as additional defendant in the suit.

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Petitioner and respondents 1 and 2 are children of the late Bhaskara Menon and the 1^st defendant in O.S. No.260 of 2006. Respondents 1 and 2 filed O.S. No.661 of 2003 in the First Additional Sub Court, Thrissur for partition of tarwad properties claiming that the said properties originally belonged to their paternal grand mother and on her death it devolved on her legal heirs including the late Bhaskara Menon. Respondents 1 and 2 claimed absolute right over the share inherited by the late Bhaskara Menon. That suit is pending. Petitioner filed O.S. No.260 of 2006, also for partition of properties left behind by the late Bhaskara Menon. That suit was resisted by respondents 1 and 2

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O.P(C) No.183 of 2013

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-: 2 :-

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as per a Will (said to be) executed by the late Bhaskara Menon. First defendant in O.S. No.260 of 2006, wife of late Bhaskara Menon was not made a party in O.S. No.661 of 2003. O.S. No.260 of 2006 was tried and by Ext.P2, judgment dated 11.06.2012 it was dismissed upholding execution of the Will relied on by respondents 1 and 2. Petitioner has challenged that judgment and decree in A.S. No.241 of 2012 now pending in the District Court, Thrissur.

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In the meantime, petitioner filed Ext.P1, application - I.A. No.6555 of 2010 in O.S. No.661 of 2003 for her impleadment as additional defendant. That application was dismissed by Ext.P4, order.

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Learned counsel submitted that in view of dispute regarding due execution of the Will pleaded by respondents 1 and 2 as defendants 2 and 3 in O.S. No.260 of 2006 and since in O.S. No.661 of 2003 respondents 1 and 2 have not stated in what way they have become absolute owners of property inherited by the late Bhaskara Menon, impleadment of petitioner in O.S. No.661 of 2003 is necessary. It is also contended that if otherwise without petitioner also on the party array, O.S. No.661 of 2003 is decided, it will affect prospects of petitioner in A.S. No.241 of

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O.P(C) No.183 of 2013

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-: 3 :-

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According to the learned counsel in the circumstances petitioner is a necessary or at least a proper party in O.S. No.661 of 2003.

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Learned counsel for respondents 1, 2 and 7 opposed the request for impleadment on the ground that in view of Ext.P2, judgment in O.S. No.260 of 2006, petitioner is neither a necessary nor a proper party in O.S. No.661 of 2003.

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In Ext.P4, order, learned Principal Sub Judge observed that in view of dismissal of O.S. No.260 of 2006 by Ext.P2, judgment, petitioner cannot be treated as a legal representative of late Bhaskara Menon and hence she is not a necessary party in O.S. No.661 of 2003.

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If the decision in O.S. No.260 of 2006 stands, there is merit in the view taken by the learned Sub Judge. But Ext.P2, judgment in O.S. No.260 of 2006 is pending decision in appeal (A.S. No.241 of 2012). Exhibit P2, judgment is under jeopardy. Therefore, based on Ext.P2, judgment alone claim of petitioner for impleadment in O.S. No.661 of 2003 cannot be rejected.

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Having heard learned counsel on both sides, I am inclined to think that whether petitioner is a necessary party and has to be impleaded as additional defendant in O.S. No.661 of

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O.P(C) No.183 of 2013

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-: 4 :-

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2003 has to be decided after the final decision of dispute involved in O.S. No.260 of 2006. If in that suit and the appeals arising therefrom it is found that in view of the Will (said to be) executed by the late Bhaskara Menon, petitioner has no surviving interest in the property left behind by him, it may be that petitioner cannot seek impleadment in O.S. No.661 of 2003. If on the other hand in O.S. No.260 of 2006 right of petitioner for partition is upheld, necessarily she may have to be impleaded either as a proper or necessary party in O.S. No.661 of 2003. Hence the question whether petitioner is to be impleaded in O.S. No.661 of 2003 has to await the ultimate decision in A.S. No.241 of 2012. In that view of the matter, the appropriate course is set aside Ext.P4, order and keep I.A. No.6555 of 2010 alive until the dispute in A.S. No.241 of 2012 is finally decided. Also, the trial court shall wait final decision in O.S. No.260 of 2006 since the decision in O.S. No.260 of 2006 may have a bearing in the decision to be taken in O.S. No.661 of 2003.

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The Original Petition is disposed of as under:

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(i) Exhibit P4, order dated 03.08.2012 on I.A. No.6555 of 2010 in O.S. No.661 of 2003 of the Principal Sub court, Thrissur is set aside.

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O.P(C) No.183 of 2013

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-: 5 :-

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(ii) I.A. No.6555 of 2010 is remitted to the learned Principal Sub Judge for fresh decision.

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(iii) It is directed that disposal of I.A. No.6555 of 2010 and trial of O.S. No.661 of 2003 of the Principal Sub Court, Thrissur will wait the final decision in O.S. No.260 of 2006 and the appeals arising therefrom.

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In view of the above direction, learned District Judge, Thrissur is directed to give priority for hearing for A.S. No.241 of 2012 after preliminary steps are over and dispose of that appeal as early as possible.

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THOMAS P. JOSEPH, JUDGE.

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vsv

Usha Devi v. Gopinathan

Case brief

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Usha Devi v. Gopinathan

Case brief

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