Supervising the Munsiff Court's dismissal of a petition seeking to record payment under a Will, the High Court held Section 151 CPC is procedural. It set aside the lower order and directed reconsideration.
Impugned order set aside; petitioner directed to file application confining to relief (b) for consideration by lower court.
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.
OP(C) NO. 948 OF 2022
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 23RD DAY OF SEPTEMBER 2022 / 1ST ASWINA, 1944
OP(C) NO. 948 OF 2022
AGAINST THE ORDER DATED 31.3.2022 IN OP 1/2021 OF PRINCIPAL MUNSIFF COURT, KOTTAYAM
PETITIONER/PETITIONER:
ANNAMMA GEORGE AGED 72 YEARS WIFE OF LATE K. GEORGE, KANJIRACKAL HOUSE, VELOOR KARA, VELOOR VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT. PIN - 686003
BY ADVS. S.RANJIT (K/250/1999) GOKUL DAS V.V.H.
RESPONDENT/COUNTER PETITIONER:
SALY JACOB AGED 75 YEARS WIFE OF K.T. JACOB, PULIKKATTUMADATHIL HOUSE, PERUMBAIKADU P.O., PERUMBAIKADU KARA, PERUMBAIKADU VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT. , PIN - 686016
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23.09.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(C) NO. 948 OF 2022
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JUDGMENT
Aggrieved by the order dated 31.3.2022(Ext.P4) in O.P. No.1/2021 of the Court of the Principal Munsiff, Kottayam, the petitioner before the court below has filed the original petition under Article 227 of the Constitution of India. The counter petitioner before the court below is the respondent.
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will. They died on 22.1.1986 and 24.9.2009, respectively. The testators had incorporated a clause in the Will that the petitioner's husband was liable to pay an amount of Rs.5,000/- to the respondent within one year from the date of death of the last testator. It was further stipulated that on making such payment, the petitioner's husband should obtain a registered receipt from the respondent, if not the respondent was entitled to recover the amount from the property bequeathed in favour of the petitioner's husband. The petitioner's husband had paid Rs.5,000/- to the respondent on 18.12.1992 and had obtained a receipt on a stamp paper, but the same was not registered. Hence, the charge created by the Will was not duly discharged. After the death of the petitioner's husband, a partition deed was executed among his legal heirs. Now the respondent is not honouring the receipt executed by her. In the above circumstances, the petitioner filed the original petition before the court below. Even though notice was served
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on the respondent, she did not contest the proceeding. But, the court below, by the impugned Ext.P4 order, has dismissed the original petition. Ext.P4 is erroneous and
wrong. The court below has failed to take note of the
law laid down by this Court in Vasanthakumari and others v. Sarojini and others [2008(1) KHC 421] and Narayana Kurup v. Manoharan [ 1991 KHC 407]. Hence the original petition.
appearing for the petitioner. Even though notice has been served on the respondent, there is no appearance for her.
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stipulating that the petitioner's husband should pay an amount of Rs.5,000/- to the respondent. The petitioner alleges that the amount was paid by the petitioner's husband to the respondent and Ext.P2 receipt was issued by the respondent. However, the same was not registered. Thereafter, the respondent disowned Ext.P2 receipt, warranting the petitioner to file the original petition.
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petitioner's husband had discharged the liability under Ext.P1 'Will' by paying the amount of Rs.5,000/- to the respondent as evidenced by Ext.P2.
that a court can allow a person to deposit an amount due under the Will invoking Section 151 of the Code, which is fair and equitable.
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Ext.P3-original petition, I am of the firm view that the matter is to be re-considered by the court below, following the ratio decidendi laid down by this Court in the afore-cited decisions. Thus, I am inclined to exercise the supervisory powers of this Court under Article 227 of the Constitution of India and allow the original petition.
In the result, the original petition is allowed, in the following manner.
(i) Ext.P4 order is set aside.
(ii) The petitioner would be at liberty to move the court below and file necessary application by confining O.P. No.1/2021 to relief No.(b) alone.
(iii) If such application is filed, the court below shall following the principles laid down in Narayana Kurup and Vasanthakumari (supra) consider and dispose of O.P.1/2021, in accordance with law, as expeditiously as possible at any rate on or before 23.12.2022.
Sd/-C.S.DIAS
ma/24.9.2022
JUDGE
OP(C) NO. 948 OF 2022
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APPENDIX OF OP(C) 948/2022
PETITIONER EXHIBITS
Exhibit1 EXHIBIT P1: TRUE COPY OF THE REGISTERED WILL DATED 08.10.1985 BEARING NO. 79/1985 OF THE ADDITIONAL SUB REGISTRAR'S OFFICE, KOTTAYAM. Exhibit2 EXHIBIT P2: TRUE COPY OF THE RECEIPT DATED 18.12.1992 ISSUED BY THE RESPONDENT TO THE PETITIONER'S HUSBAND K. GEORGE. Exhibit3 EXHIBIT P3: TRUE COPY OF THE PETITION IN O.P. NO. 1/2021 BEFORE THE PRINCIPAL MUNSIFF'S COURT, KOTTAYAM. Exhibit4 EXHIBIT P4: TRUE COPY OF THE ORDER DATED 31.03.2022 IN O.P. NO. 1/2021 BEFORE THE PRINCIPAL MUNSIFF'S COURT, KOTTAYAM.
2 issues framed by the court
Whether the impugned order dismissing the writ petition under Section 151 of the Code of Civil Procedure is illegal.
Whether Section 151 of the Code of Civil Procedure is capable of dealing with the case regarding discharge of liability under a Will.
Colour shows how this judgement treated each authority
Vasanthakumari and others v. Sarojini and othersRelied on¶841
Vasanthakumari and others v. Sarojini and others [2008(1) KHC 421]
Narayana Kurup v. ManoharanRelied on¶94351
Narayana Kurup v. Manoharan [1991 KHC 407]
2 provisions across 2 enactments
Annamma George
Saly Jacob
C.S. Dias
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
C.S. Dias
Parties & counsel
