Appeal against order dismissing second execution appeal. Court upheld lower courts' finding that petitioner failed to prove Will's genuineness and rejected claim that suit property differed from decree property.
Ex.S.A dismissed with no substantial question of law arising.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
WEDNESDAY, THE 10TH DAY OF AUGUST 2022 / 19TH SRAVANA, 1944 EX.SA NO. 10 OF 2022
AGAINST THE JUDGMENT DATED 30.07.2010 IN AS 124/2010 OF ADDITIONAL DISTRICT COURT (SPECIAL COURT), CHALLENGING THE ORDER DATED 01.03.2010 IN E.A. 31/09 IN EP 192/08 IN OS 609/1999 OF PRINCIPAL MUNSIFF COURT , KOTTAYAM
APPELLANT/CLAIM PETITIONER:
1 MARY MATHEW, AGED 81 YEARS W/O. MATHEW, THADATHILPARAMBIL HOUSE, CHANNANIKKADU KARA, PANACHIKKAD, KOTTAYAM. 2 ADDL. PUNNOSE MATHEW S/O. MATHEW, THADATHIL PARAMBIL HOUSE, CHANNANIKKAD KARA, PANACHIKKADU, PAKKOL P.O., KOTTAYAM-686533. (R11 IS TRANSPOSED AS SUPPLEMENTARY APPELLANT 2, VIDE ORDER DATED 20/12/2021 IN IA 2/2019 IN MJC 147/2019 IN UNNUMBERED EX.S.A----/2011, (FILING NO. EX. SA 1129/2011)) BY ADVS. VINOD RAVINDRANATH MEENA.A. ASHWIN SATHYANATH ROHIT NANDAKUMAR
RESPONDENT/COUNTER PETITIONERS/DEFENDANTS:
1 CHACHIKUTTY (DIED) CHETHIMATTATHIL HOUSE, MALLOOSSERY P.O., KOTTAYAM 686041. 2 * ELSSY, (DIED) AGED 63, KUNNEL HOUSE, CHINGAVANAM, NATTAKOM, KOTTAYAM-686013. 3 MARIAMMA, AGED 71, W/O. KURIAKOSE, CHERUKARIYATH, VEBALLY MODIYIL, PADINJATTU OTHARA KARA DO VILLAGE, THIRUVALLA, PATHANAMTHITTA-689551.
Ex.S.A.No.10/2022
2
Ex.S.A.No.10/2022
3
16 ADDL. R15. TINU, D/O. P.T. CHAKO (LATE), AGED 25, CHETTIMATTATHIL HOUSE, NEELAMPERUR PO, ALAPUZHA DISTRICT, PIN686534. 17 ADDL.R16. TITTU, D/O. P.T. CHAKO (LATE) AGED 20, CHETTIMATTATHIL HOUSE, NEELAMPERUR PO, ALAPUZHA DISTRICT, PIN686534. * LEGAL REPRESENTATIVES OF DECEASED 1ST RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 11 TO 16, VIDE ORDER DATED 28.03.2022 IN I.A. NO. 3/19 IN MJC 147/2019 IN UNNUMBERED EX.SA-/2011 (FILING NO. EX.SA 1129/2011). 18 ADDL .R17-JESSY, AGED 45, D/O. ELSSY, VELLUTHURATHI, KUZHIMATTOM PO, KOTTAYAM, PIN - 686532. 19 ADDL. R18. JANCY, AGED 43, D/O. ELSSY, KANJIRATHIN MOOTT, VAKATHANAM PO, KOTTAYAM, PIN - 686011. 20 ADDL. R19. ANU, AGED 40, D/O. ELSSY, MOOZHIPARAYIL HOUSE, KUZHIMATTOM PO, KOTTAYAM, PIN-686532. 21 ADDL. R20. ANEESH, AGED 38, S/O. ELSSY, KUNNEL VEEDU, CHINGAVANAM PO, KOTTAYAM, PIN - 686007. * LEGAL REPRESENTATIVES OF DECEASED 2ND RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 17 TO 20, VIDE ORDER DATED 28.03.2022 IN I.A. NO.2/20 IN MJC 147/2019 IN UNNUMBERED EX.SA-/2011 (FILING NO. EX.SA 1129/2011).
ADV.K.M.VARGHESE FOR ADDL.R11 TO R16
THIS EXECUTION SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05.08.2022, THE COURT ON 10.08.2022 DELIVERED THE FOLLOWING:
Ex.S.A.No.10/2022
4
M.R.ANITHA, J ****************** Ex.S.A.No.10 of 2022
Dated this the 10th day of August, 2022
This Ex.S.A has been directed against the judgment in A.S.No.124/2010 on the file of Additional District Judge (Special), Kottayam. Appellant is the claimant/petitioner in E.A.No.31/2009 in E.P.No.192/2008 in O.S.No.609/1999 on the file of the Principal Munsiff's Court, Kottayam. E.A.No.31/2009 has been tried along with E.A.No.267/2009 and E.A.No.90/2009 and a common order was passed.
alleging that petition schedule property having an extent of 1.35 Acres comprised in old Survey No.302/4 of Panachikkad village belongs to petitioner by virtue of a Will executed in her favour by her father-in-law, Mathen on 05.06.1965 and she was in possession and enjoyment of the same. The said Mathen died on 30.06.1967. When the petitioner approached the revenue
Ex.S.A.No.10/2022
5
authorities to effect mutation of the property in her name, they refused to do it for the reason that life interest in favour of husband and in-laws have not been seized. While so, O.S.No.609/1999 was filed by the counter petitioners and obtained a decree for partition of the properties belonged to deceased Mathen without impleading the petitioner as party to the proceedings. Now, E.P.No.192/2008 has been filed for delivery of possession of the petition schedule property. Hence petition has been filed with a prayer to declare her title to the petition schedule property and to restrain the counter petitioners by permanent injunction from taking delivery of the petition schedule property.
Ex.S.A.No.10/2022
6
additional 6th defendant and he also did not disclose the existence of the Will now relied on by the petitioner. The gift deed executed by the petitioner's husband with respect to the plaint item No.2 property is also declared as null and void. Existence of the Will was not revealed even before the appellate court in A.S.No.136/2003. Petitioner's son Punnoose contended that the petition schedule property belongs to his father who effected mutation in his name. The petitioner was residing along with her husband and son and hence it is unbelievable that she did not know the pendency of O.S.No.609/1999. The Commissioner and Surveyor appointed by the court visited the property twice and demarcated the property. Even in the objection statement of the petitioner's son Punnose in the execution petition also, there is no mention about the Will relied on by the petitioner. The house in the petition schedule property was allotted to the share of deceased Mathew, the husband of the petitioner. So, the claim petition has been filed without any bona fides.
Ex.S.A.No.10/2022
7
who is the respondent No.11 is transposed as the supplemental appellant No.2
Ex.S.A.No.10/2022
8
Will over which the claim is raised is comprised in Sy.No.302/4 and it is further contended that misinterpreting the property covered by the Will wherein she resides is being treated as item No.1 property described in the final decree, the decree holders are seeking delivery of the property comprised in Sy.No.302/4 of Panchikkad Village. It is also her contention that the courts below have not gone into the question whether property covered by Ext.A1 Will and property described in item No.1 of property scheduled in decree is the one and the same. Hence her contention is that the property covered by Ext.A1 Will is not the subject matter of the final decree. It is also contended that after the death of Mathew she was not impleaded as a legal representative.
Ex.S.A.No.10/2022
9
Village and under the guise of the decree, they are misinterpreting the schedule property as the decree schedule property and the decree holders are seeking delivery of the property.
[MANU/KA/0280/1989 : ILR 1989 KARNATAKA 3230]
wherein while dealing with Order XXI Rule 97 and 99 a learned Single Judge of Karnataka High Court held that 'property' and 'suit property' referable therein are only subject matter of execution and executing court cannot entertain objections to the
Ex.S.A.No.10/2022
10
execution in respect of any other property. Hence an application filed under Order 21 Rule 9 which did not relate to the subject matter of execution cannot be entertained by the executing court.
Ex.S.A.No.10/2022
11
executed by her father-in-law.
was one of the contesting defendants and he claimed exclusive title and possession over plaint item No.1 property. On his death, his son, daughter and son-in-law were impleaded as legal representatives and they claimed title over the property of the deceased Mathew on the basis of gift deed executed by him in their favour. The petitioner was not even impleaded as a legal representative.
Ex.S.A.No.10/2022
12
R.S.A.No.608/2006 before this Court challenging judgment and decree in A.S.No.136/2003 and that was dismissed by this Court and the relevant paragraph has been quoted in the order passed by the learned Subordinate Judge which reads thus: “When the right and ownership of Mathen is there naturally the plaintiffs, who are the children and claiming through him are entitled to the property, as held by the courts below …...................... There is absolutely no question of law involved in this case which warrants admission of this appeal.” So, all those factors would indicate that all along, the husband of the petitioner and her children were contending that the disputed property exclusively belong to Mathew who executed gift deed in favour of his son, daughter and son-in-law. So, as rightly concluded by the first appellate court in such contingency, it is highly unbelievable that the Will executed by the deceased Mathen in favour of the petitioner will be suppressed by her husband, son, daughter and son-in-law. It would also go to show that initially the husband, children including son-in-law were agitating an independent claim, on the
Ex.S.A.No.10/2022
13
basis of an alleged gift deed executed by Mathew to claim exclusive right over the plaint item No.1 property and when that attempt was failed, the petitioner is claiming exclusive right over the property under the guise of Ext.A1 Will alleged to have been executed on 05.06.1965. If at all such a Will was in existence, definitely she would have raised her claim at the time when the suit was pending and her husband and children were agitating their claim based on an alleged gift deed. There is nothing in evidence to show that the petitioner and her husband and children were at loggerheads during the relevant time. So, the claim now put forward by the petitioner on the basis of Ext.A1 Will is without any bona fides.
Ex.S.A.No.10/2022
14
evidence was not accepted by the courts below. Both courts also concurrently found that genuineness of Ext.A1 Will has not been proved. I do not find any reason to interfere with the said concurrent finding of fact by the courts below. So, on an evaluation of the entire facts and circumstances I am of the considered view that there is no substantial question of law emerges for consideration in this second appeal.
In the result, Ex.S.A is dismissed.
(sd/-) M.R.ANITHA, JUDGE
jsr
True Copy
P.S to Judge
Colour shows how this judgement treated each authority
A.Chidambar v. LeelaReferred¶57
A.Chidambar v. Leela [MANU/KA/0280/1989 : ILR 1989 KARNATAKA 3230] · Who else cites this
Mary Mathew
Chachikutty
Elssy
Mariamma
Annamma
M.R. Anitha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
