Common Judgment in OP(C).2504/2013 & OP(C).2983/2017, High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **THURSDAY, THE 19TH DAY OF SEPTEMBER 2019 / 28TH BHADRA, 1941** ## **OP(C).No.2504 OF 2013(O)** **AGAINST THE ORDER/JUDGMENT IN OP(LA) 65/2007 OF ADDITIONAL DISTRICT COURT-I,MAVELIKKARA** ## **PETITIONER/S:** **1 VIMALA ABRAHAM, AGED 68 YEARS, W/O.LATE ABRAHAM, RESIDING AT SANGEETHA, THEVALLY, KOLLAM WEST VILLAGE, KOLLAM. 2 SARUSU ROY GEORGE RESIDING AT 98/1, 6TH MAIN, ITI LAY OUT, BENSON TOWN, BANGLORE - 46.** **BY ADVS. SRI.BINU GEORGE SMT.HEMALATHA** ## **RESPONDENT/S:** **EAPPEN JOSEPH PADARUPPURACKAL, ARUNOOTTIMANGALAM MURI, VETTIYAR, THAZHAKKARA VILLAGE, MAVELIKKARA, ALAPPUZHA DISTRICT - 695 364** ## **R1 BY ADV. SRI.RINNY STEPHEN CHAMAPARAMPIL** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 8.08.2019, ALONG WITH OP(C).2983/2017(O), THE COURT ON 19/9/2019 PASSED THE FOLLOWING:** O.P.(C) No.2504/2013 2983/2017 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **THURSDAY, THE 19TH DAY OF SEPTEMBER 2019 / 28TH BHADRA, 1941** ## **OP(C).No.2983 OF 2017** **AGAINST THE ORDER IN IA NO.1669/2012 IN OS 143/2007 OF SUB COURT, MAVELIKKARA** ## **PETITIONER/S:** **EAPPEN JOSEPH, S/O. JOSEPH, AGED 61 YEARS,VALLIATH PADAVU PURACKAL,ARUNOOTTIMANGALAM, VETTIYAR VILLAGE.** **BY ADV. SRI.RINNY STEPHEN CHAMAPARAMPIL** ## **RESPONDENT/S:** **1 VIMALA ABRAHAM SANGEETHA VEETTIL, THEVALLY VILLAGE,THEVALLY MURI, KOLLAM TALUK-691009. 2 SARASU RPU GEPRGE SANGEETHA VEETTIL, THEVALLY VILLAGE,THEVALLY MURI, KOLLAM TALUK-691009.** **R1-2 BY ADV. SRI.GEORGE A.CHERIAN R1-2 BY ADV. SRI.BECHU KURIAN THOMAS (SR.)** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 8.08.2019, ALONG WITH OP(C).2504/2013(O), THE COURT ON 19/9/2019 PASSED THE FOLLOWING:** O.P.(C) No.2504/2013 2983/2017 3 ## **COMMON JUDGMENT** ## **[ OP(C).2504/2013 & OP(C).2983/2017 ]** These original petitions arise from O.P.(LA) No.65/2007 of the Additional District Court, Mavelikkara and O.S.No.143/2007 of Sub Court, Mavelikkara, respectively. Parties are same in both the proceedings. 2. Petitioners in O.P.(C) No.2504/2013 are the respondents in O.P.(LA) No.65/2007. Petitioner in O.(P) No.2983/2017 is the plaintiff in O.S.No.143/2007 and the respondents in that original petition are the defendants in the suit. Parties will hereinafter referred to as plaintiff and defendants in accordance with their status in OS No.143/2007. 3. The facts of the case, as is discernible from the file, is that the plaintiff is the brother of the defendants in O.S.No.153/2007. The suit was one for specific performance of an oral agreement and for partition of the properties . Property covered by the agreement was stated to be the subject matter of a Will executed by the mother which was relied on by the plaintiff. Defendants raised objections regarding the due execution of the Will and also O.P.(C) No.2504/2013 2983/2017 4 contended that it was not probated to establish its genuineness. Hence, the plaintiff filed O.P.(LA) No.65/2007 for issuing letters of administration to him in relation to the above Will. It was claimed that the original Will executed by the mother was handed over to the first defendant in the suit. She had sent a copy to the plaintiff, who was brother of the defendants. He produced the above copy. It was contended that on the strength of the Will, the defendants had mutated the property by submitting Ext.X1 application. A copy of Ext.X1 application was put to the witness at the time cross examination by the plaintiff. Execution of Ext.X1 was denied by the first defendant. Hence, the plaintiff filed I.A.No.176/2013 for forwarding Ext.X1 with specimen admitted signatures of the first defendant for establishing that the application was infact submitted by her. The court below by the impugned order allowed the application and directed Ext.X1 application to be sent to the FSL for expert opinion on the signature. The first defendant was directed to give her specimen signature. This order is under challenge at the instance of the defendants, in O.P.(C) No.2504/2013.. 4. In O.S.No.143/2007, when the case was posted for trial, I.A.No.1669/2012 filed by the plaintiff to stay the proceedings till O.P. (LA) No.65/2007 was decided on merits. It was contended that the issue involved in O.P.(LA) No.65/2007 was the issue directly and substantially in issue in O.S.No.143/2007. It was contended that since the genuineness of the will was in question in O.P.(LA) 65/2007, it will be determinate in deciding the issues in suit for partition. O.P.(C) No.2504/2013 2983/2017 5 Hence, it was prayed that the proceedings in O.P.No.143/2003 may be stayed till O.P.(LA) No.65/2007 was decided. This prayer of the plaintiff was dismissed by the court below which is assailed in O.P.(C) No. 2983/2017. 5. Since both the original petitions arise from related proceedings, both the cases were heard together and records examined. 6. It is an admitted fact that in O.P.(LA) No.65/2007, the original Will was not produced. It was stated to be available with the respondents in the above O.P.(LA). The existence of the will and the genuineness of the Will was sought to be established with copy of the will and by trying to establish that the respondents in the L.A. (OP) were aware of the existence of the Will and had acted upon the Will by submitting Ext.X1. Evidently, it is not the genuineness of the Will that was sought to be established. However, the existence of the Will and the possession of the original Will with the respondents therein is sought to be established by proving Ext.X1 and that it was executed by the defendants and submitted for mutuation along with the original Will. At the time of evidence, the witness on behalf of the respondents denied Ext.X1. It was in the above circumstances, expert opinion on the genuineness of Ext X1 was sought. 7. Vehemently, opposing that prayer, respondents in the OP(LA) contended that the genuineness of Ext.X1 was not subject matter of the issue in O.P.(LA). It was also contended that no purpose will be served by enquiring into the genuineness of Ext.X1 O.P.(C) No.2504/2013 2983/2017 6 since the original Will was not produced. It was further contended that Ext.X1 was an irrelevant document and the direction of the court below amounts to testimonial compulsion. The court below considered the above objections and held that if the respondents have effected the mutation of the properties covered by the Will on the strength of the Will executed by the mother, it was the relevant fact for the consideration of the issues involved in the LA.O.P. This being a proper reasoning of the court below, I find no reason to interfere in the above conclusion which is based on sound legal principles. Hence, I am not inclined to interfere in the impugned order. 8. In O.S. No.143/2007, I.A.No.1669/2012 was filed by the plaintiff to stay the proceedings. Stay was sought on the ground that it requires to be stayed till the L.A.O.P.was decided. It was contended that the matter in issue involved in the suit was the subject matter directly and substantially in issue in the L.A.O.P.. It was dismissed by the court below on the ground that in the L.A.O.P., the validity of the Will was sought to be established and the person who was the most appropriate person to whom the letter of administration was to be issued, if the Will is found to be genuine. On the other hand, it was held that O.S. No.13/2007 was a suit for partition and the subject matter was not the subject matter directly and substantially in issue in the L.A.O.P., 9.Evidently, the suit is the previously instituted proceeding. This is clear from the pleadings in the L.A.O.P. wherein it is stated O.P.(C) No.2504/2013 2983/2017 7 that L.A.O.P.was filed since the defendants raised objections regarding the lack of probate of the disputed Will. Evidently, L.A.O.P. is not the previously instituted proceeding. Under section 10, it is subsequently instituted suit that is liable to be stayed. It is seen that in **Amar Deep Singh v. State and Others(2006 KHC 1651)** , the Delhi High Court had held that once probate Court is considering petition for grand of probate, that Court alone is competent to decide on question of execution or validity of will. Civil Court cannot go into that question. Probate proceedings even though later in point of time cannot be stayed. **In Nirmala Devi v. Arun Kumar Gupta (2005 (12) SCC 505),** the Supreme Court held that clubbing of probate proceedings with the other proceedings in the Civil Court was required, since the decision on the question of Will will have a direct impact on the issue and hence, the probate proceedings were directed to be transferred. However, the Supreme Court in **ASPI Jal and Another v. Khushroo Rustom Dadyburjor ( 2013) 4 Supreme Court Cases 333)** had held that for applying section 10, CPC, it was essential to show that the entire subject matter in controversy was the same between the same parties in the previous and subsequent suits. 10. The decisions show that the subject matter involved in the L.A.O.P.was not the subject matter directly and substantially in issue in the suit. Hence, section 10 CPC as such will not apply. However, in **Nirmala Devi. v. Arun Kumar Gupta ( 2005 (12) SCC 505)** , the Supreme Court allowed joint trial of the probate proceedings as O.P.(C) No.2504/2013 2983/2017 8 well as the suit on the ground that the question of genuineness of the Will will have a direct impact on the suit. ## 11. **In Ashok Kumar Ray v. Reba Biswas and Others (2017** **KHC 2480),** Orissa High Court had held that the decision in the probate proceeding on the question of proof of “Will” will have a direct impact on the suit. The decision in the partition suit would also operate as res judicata in the probate proceedings. In **Brijesh** ## **Haridas v . Ramachandran @ Unni and Others ( 2016) (2) KHC** **454)** , it was held that before Court could accept Will, the plaintiff should prove its execution in the manner provided in section 68 of the Evidence Act. The above decisions clearly show that the findings in the L.A.O.P. Proceedings will have a direct bearing regarding the ultimate decision to be taken in the suit, since the existence of the Will is issue for consideration of the issue in that. Hence, though I am inclined to hold that section 10 will not apply in the present case and to that extent, impugned order in the O.P.(C) No.2983/2017 is liable to be uphled considering the fact that, it will have a bearing in the nature of the contention, it will be appropriate, if the Sub Court waits till the decision is rendered by the District Court in the L.A.O.P. . Thereafter, the court can proceed with the suit accordingly. In the result, O.P.(C) No.2504/2013 is dismissed confirming the impugned order. O.P.(C) No.2983/2017 is disposed of confirming the impugned order, however directing the sub court, Mavelikkara to wait till orders are pronounced by the District Court in O.P.L.A.No. O.P.(C) No.2504/2013 2983/2017 9 65/2007 now pending before the Additional District Court, Maveilikkara. Thereafter, the court shall proceed with the suit. **Sd/-** dpk **SUNIL THOMAS JUDGE** O.P.(C) No.2504/2013 2983/2017 10 ## **APPENDIX OF OP(C) 2504/2013** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 EXT.P1: A TRUE COPY OF THE PETITION OF O.P(LA) 65/2007. EXHIBIT P2 EXT.P2: A TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN O.P.(LA) 65/2007.** **EXHIBIT P3 EXT.P3: A TRUE COPY OF PETITION IN I.A NO.176/2013.** **EXHIBIT P4 EXT.P4: A TRUE COPY OF THE ORDER DATED 12/06/2013 IN I.A. NO.176/2013. EXHIBIT P5 EXT.P5: A TRUE COPY OF THE OBJECTION FILED BY THE PETITIONERS DATED 15/7/2013.** O.P.(C) No.2504/2013 2983/2017 11 ## **APPENDIX OF OP(C) 2983/2017** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE DEATH CERTIFICATE OF ELIZABETH EAPEN, W/O. THE PETITIONER. EXHIBIT P2 CERTIFIED COPY OF THE ORDER PASSED BY THE SUB COURT, MAVELIKKARA DATED 30.08.2017.**