Chinnamma @ Elizabeth v. Rosakkutty and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE A.K.BASHEER THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 22ND JUNE 2010 / 1ST ASHADHA 1932 OP.466/1993 of II ADDL.DISTRICT COURT,ERNAKULAM CHINNAMMA @ ELIZABETH, W/O.THOMAS PASCAL, M/6/62 PRASANT, CHANGAMPUZHA NAGAR, RESPONDENT(S): PETITIONER & RESPONDENTS 1 & 3 - EDAKKATTU HOUSE, KUMBALANGHI VILLAGE, 2. ROSAKUTTY, W/O.LATE VARKEY XAVIER, EDAKKATTU HOUSE, KUMBALANGHI VILLAGE, (APPELLANT & RESPONDENTS 1 & 3 ARE THE ONLY L.RS) W/O.DR.K.K.EASY, KAMBAKKARAN HOUSE, ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE FOR R1 THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 22/06/2010, THE COURT ON THE SAME DAY DELIVERED THE ## A.K. Basheer & P.Q. Barkath Ali, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - ## M.F.A. No. 56 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22[nd] day of June, 2010 Judgment ## Basheer, J: This appeal is directed against an order passed under Sec. 278 of the Indian Succession Act, 1925 read with Rule 6 of the Indian Succession Rules ( Kerala) 1968. By the impugned order the court below has ordered issue of Letters of Administration in favour of respondent No.1 herein, in respect of Ext.A4 Will admittedly executed by late Varkey Xavier on December 1, 1948. 2. This litigation with respondent No.1, the brother, on one side and his mother and sisters on the other, has had a chequered history spanning more than a decade and a half. The mother is no more. But still, the appellant, who is one of the two sisters wants to carry on the fight. At whose benefit, even she may not have any clue. But still, the family feud is kept alive. Any how, this litigation has turned out to be a burdensome legacy to the wife and children of late Varkey. 3. As has been mentioned earlier, Varkey Xavier executed Ext.A4 Will on December 1, 1948. The testator passed away on November 9, 1952, leaving behind certain movable and immovable properties situated in various MFA.56/2010 : 2 : villages in Ernakulam District. In 1993, respondent No.1 filed the application for grant of Letters of Administration before the District Court. 4.The prayer was resisted primarily by the two sisters. The principal contention raised by them was that the testator had only a life interest in the properties and that all the properties covered under the Will had already been partitioned in terms of a registered deed of partition executed in the 1969. to these year According respondents the Will had been ignored by the parties by their subsequent conduct and therefore the prayer for issue of Letters of Administration was not at all tenable. 5. The District Court after considering the rival contentions and the materials available on record held that respondent No.1 was entitled to get Letters of Administration in his favour and passed an order accordingly by its order dated January 4, 1997. 6. The above order was challenged by the sisters before this Court in MFA.No.602/1997. A Division Bench of this Court disposed of the appeal by judgment dated March 10, 2004 remanding the case to the court below for fresh disposal after affording MFA.56/2010 : 3 : sufficient opportunity to the parties to adduce further evidence. the Division Bench was Apparently persuaded to remand the case to the court below by the plea made by the appellant herein and her sister that they did not get an opportunity to produce the copy of the registered partition deed before the District Court, which according to them, would have clinched the issue in their favour. They also sought for permission to produce a copy of the plaint in OS.No.172/1994 filed by them for a decree of permanent injunction. The Division Bench while granting the prayer for remand directed the sisters to pay a sum of Rs.10,000/- as cost to respondent No.1 herein within one month from the date of the judgment. The parties were further directed to appear before the court below on May 18, 2004. 7. It is beyond controversy that neither the appellant nor her sister (who has been arrayed as respondent No.3 in this appeal) appeared before the District Court after remand, as directed by the Division Bench. It is also the admitted position that the cost of Rs.10,000/- was not paid by them to respondent No.1 herein. Obviously the partition deed and the plaint referred to earlier were not produced before the court MFA.56/2010 : 4 : below. Nevertheless, the court below considered the entire matter afresh with specific reference to the partition deed on which heavy reliance was placed by the appellant before this Court in MFA.No.602/97. The court below after considering the entire aspects of the matter came to the conclusion that there was considerable force in the contention raised by respondent No.1 herein that the partition deed might have been executed in order to escape from the clutches of the Kerala Land Reforms Act. It was also noticed by the court below that the appellant had not placed any reliance on the partition deed in OS.172/1994. The court below further observed that the genuineness of the Will not having been in dispute at all, the prayer for grant of Letters of Administration cannot be denied to respondent No.1. In short, the court below kept in view all the contentions raised by the appellant while deciding the issue, particularly some of the relevant clauses of Ext.A4 Will also. We do not propose to refer to or deal with the various clauses in the Will since, as has been mentioned by us earlier, the execution of the Will had never been in dispute. The only contention now raised by the appellant seems to be that the Will MFA.56/2010 : 5 : had lost its relevance and significance inasmuch as the parties had executed a partition deed in respect of the properties covered under the Will and that they had also subsequently dealt with those properties on the strength of the said partition deed. We are afraid the said contention does not fall within the ambit of a proceeding under Section 278 of the Indian Succession Act. The remedy, if any, available to the appellant has to be pursued before the appropriate court in other appropriate proceedings. 8. There is yet another aspect of the matter. As has been noticed already, the impugned order was passed by the court below on August 8, 2006. This appeal has been preferred on March 12, 2010 with a delay of 1218 days. In the affidavit filed in support of the application for condonation of delay, it is averred by the appellant that she was totally kept in the dark by her counsel who appeared on her behalf before this Court in MFA.No.602/97, about the order passed by this Court in the said appeal. According to her, she never knew that she was directed to pay a cost of Rs.10,000/-. She was also not aware that she was directed to appear before the court below on a particular date. She was all MFA.56/2010 : 6 : along under the impression till February 2010 that the appeal was still pending before this Court. She ultimately came to know about the judgment in MFA.602/1997 only in February 2010 when she collected the records in OS.362/2008 filed by the same counsel on her behalf before the Munsiff Court, Kochi. According to the appellant she had been following the instructions of her counsel and had implicit faith in him. But going by the averments in the memorandum of appeal, the appellant felt that the suit referred to above (OS.362/2008) was not properly prepared “as per her request”. She took back the records from her counsel and when she went through the records she came to know about the dismissal of the appeal by the Division Bench in the MFA. 9. It is pertinent to note that respondent No.1 who was the sole defendant in the said suit had filed his written statement way back on January 23, 2009, in which he had referred to the previous round of litigation especially the appeal at length. It is hard to believe that a responsible counsel who represented the appellant before 3 or 4 courts for more than 9 years would have kept his client in the dark, particularly when MFA.56/2010 : 7 : the Division Bench had directed his clients to pay cost of Rs.10,000/- as a condition to remit the case to the court below, and also to appear before the court below on a particular date. Even now there is not even a whisper in the memorandum of appeal that she is prepared to pay the cost as ordered by this Court in MFA.No.602/2004. It is true that the said counsel has placed his own affidavit before us along with the memorandum of appeal in which the learned counsel has stated that on account of an inadvertent omission on his part he was not able to inform the parties regarding the remand of MFA.602/1997. Respecting the age of the member of the esteemed profession (he is 81 years), we do not propose to make any further comment on this aspect. 10. Before we conclude, it may also be noticed that today when the case was posted for final hearing the appellant has filed an application seeking leave to raise an additional ground based on the plea of limitation. According to the appellant, the court below ought not to have entertained the application for grant of Letters of Administration since it was hopelessly barred under Article 137 of the Limitation Act. MFA.56/2010 : 8 : Appellant had never raised such a plea before the court below at any point of time, nor was such a contention raised by her before this Court in MFA.602/1997. It is true that a question of law can be raised at any stage. But in the peculiar facts and circumstances of this case and for the reasons stated by us earlier, we are not satisfied that the above plea can be allowed to be raised at this belated state. 11. Learned counsel has also invited our attention to a decision of their Lordships of the Supreme Court in Krishna Kumar Sharma v. Rajesh Kumar Sharma (2009 (2) KLT 149 (SC)) in support of his contention based on Article 137 of the Limitation Act. But we have already held that the additional ground now being sought to be raised cannot be entertained for the reasons stated earlier. 12. Having carefully perused the entire materials available on record and particularly the order impugned in this appeal, we do not find any reason to interfere with the order under challenge. In our view, the court below has considered the entire aspects of the matter in their right perspective. Though we had condoned the inordinate delay of 1218 days out of our MFA.56/2010 : 9 : anxiety to see whether any injustice had been inadvertently caused to the appellant, we are not persuaded to accede to the persuasive plea made by Sri. Roy Chacko, learned counsel for the appellant, to give her another opportunity to produce the deed of partition and the plaint and adduce further evidence in the matter. In effect, the request of the learned counsel is to put the clock back and that too at this distance of time. Since the issue does not call for such an indulgence, we decline the above request. 13. The appeal fails and it is accordingly dismissed. Though this is a fit case in which exemplary cost has to be imposed, we refrain from doing so. A.K. Basheer Judge. P.Q. Barkath Ali Judge. an.