Annamma George v. Saly Jacob

**OP(C) NO. 948 OF 2022** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 23[RD] 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** **2** ## **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. 2. The skeletal facts, relevant for the determination of the original petition, are: the petitioner has filed O.P. No.1/2021 under Section 151 of the Code of Civil Procedure (in short 'Code'), inter alia, to record that she has made the payment of Rs.5,000/- to the respondent as stipulated in the Will deed No.79/1985 of the Additional SRO, Kottayam. The petitioner's husband and the respondent are siblings. Their parents namely late K.M.Thomas and Annie Thomas had executed the above **OP(C) NO. 948 OF 2022** **3** 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 **OP(C) NO. 948 OF 2022** **4** 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. 3. Heard Sri.S.Ranjit, the learned counsel appearing for the petitioner. Even though notice has been served on the respondent, there is no appearance for her. 4. The point is whether there is any illegality in Ext.P4 order passed by the court below. 5. On a consideration of the pleadings and materials on record, it is evident that the parents of the petitioner's husband had executed a Will, inter alia, **OP(C) NO. 948 OF 2022** **5** 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. 6. The court below for the reason that the petitioner has sought for additional reliefs in the original petition arrived at the conclusion that the original petition cannot be decided under Section 151 of the Code and the same has to be adjudicated in accordance with law. Accordingly, the court below has dismissed the original petition. 7. Sri.S.Ranjit submitted that the petitioner is confining the original petition to relief No.(b) in Ext.P3 original petition, i.e., to record the fact that the **OP(C) NO. 948 OF 2022** **6** 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. 8. This Court in **Vasanthakumari** (supra) has categorically laid down the law that the jurisdiction exercised by a court in cases of the above nature is only procedural and ministerial in character. The same can be dealt with under Section 151 of the Code of Civil Procedure and the Court is not bound to delve into the genuineness of the documents. 9. In **Narayana Kurup (supra),** this Court held 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. 10. In the light of the law laid down in the aforecited decisions and in view of the fact that the petitioner is confining the original petition to relief No.(b) in **OP(C) NO. 948 OF 2022** **7** 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** **JUDGE** ma/24.9.2022 **OP(C) NO. 948 OF 2022** **8** ## **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.