Miriam Elias, Smitha Elias and Dan Elias v. Dr. Susy Elias Samson

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN`** ``` THURSDAY, THE 14[TH] DAY OF MARCH 2024 / 24TH PHALGUNA, 1945 ``` ## **`OP(C) NO. 321 OF 2024`** ## **`ORDER DATED 03.02.2024 IN IA 11 OF 2024 IN OS NO.128 OF 2019 OF ASSISTANT SESSIONS COURT/III ADDITIONAL SUB COURT, ERNAKULAM PETITIONERS / DEFENDANTS:`** - **`1 MIRIAM ELIAS AGED 72 YEARS W/O. LATE DR. BASIL ELIAS, 36/106, KOTTE CANAL ROAD, ERNAKULAM, PIN – 682 018`** - **`2 SMITHA ELIAS AGED 48 YEARS D/O. LATE DR. BASIL ELIAS, 36/106, KOTTE CANAL ROAD, ERNAKULAM REPRESENTED BY THE POWER ATTORNEY HOLDER HER BROTHER DAN ELIAS, 36/106, KOTTE CANAL ROAD, ERNAKULAM, PIN – 682 018`** - **`3 DAN ELIAS AGED 44 YEARS S/O. LATE. DR. BASIL ELIAS, 36/106, KOTTE CANAL ROAD, ERNAKULAM, PIN – 682 018`** ``` BY ADV BIJU ABRAHAM ``` ## **`RESPONDENT/PLAINTIFF:`** ``` DR. SUSY ELIAS SAMSON D/O. ELIYAVOO ELIAS, XL/5386, SKIN CARE CENTRE, ELIAS CHAMBERS, MARKET ROAD, KOCHI, PIN – 682 016 BY ADVS. G.RAJAGOPAL S.LEELALAKSHMI(K/148/1994) JAYADEEP SAJAN(K/1916/2019) ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 14.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` O.P.(C).No. 321 of 2024 2 ## **`JUDGMENT`** ## **`Dated, this the 14[th] day of March 2024`** ``` This Original Petition is preferred by the defendants in the suit O.S.128/2019 pending before the 3rd Additional Sub Court, Ernakulam. The petitioners are aggrieved by Ext.P9 order, which refused an amendment sought for to the written statement vide Ext.P5 application. ``` ``` 2.Heard the learned counsel for the petitioners and the respondent. Learned counsel for the petitioners submit that by virtue of the amendment vide Ext.P5, all what the petitioners/defendants wanted was to elaborate their contention - which is already there in the written statement – pertaining to the Will claimed by plaintiff. Learned counsel would invite the attention of this court to paragraph no. 4 of Ext.P1 plaint, wherein, a claim ``` O.P.(C).No. 321 of 2024 3 ``` based on the disputed Will is seen espoused by the plaintiff. As against the said claim, in Ext.P2 written statement, the following contention is seen taken: ``` ``` “4. The matters pleaded by the plaintiff in paragraph 4 of the plaint is to be proved by her, as understood by me the will is not probated and the statement in paragraph 4 of the plaint is at odds with the statement given in the pending suit before this Hon'ble court as O.S. No. 986/2012.” ``` ``` 3.Thus, according to the learned counsel, the Will was disputed in the written statement. The original of the Will was not produced along with the suit. The case was initially listed for trial on 6/12/2022. The Will was produced only during December, 2023. Upon going through the original of the disputed Will only, the defendant's came to know that the said will was executed by the testatrix, ``` O.P.(C).No. 321 of 2024 4 ``` while she was admitted in hospital. In asmuch as paragraph no.4 does not contain a specific denial of the will, the amendment is sought for challenging the disposing capacity of the testatrix, and also for the denial of the Will claimed by the plaintiff. Learned counsel would submit that the amendment sought for vide Ext.P5 ought to have been allowed and Ext.P9 order is liable to be interfered with. ``` ``` 4.Per contra, learned counsel for the respondent/plaintiffwouldsubmitthatno interference,whatsoever,iswarranted to Ext.P9 order, which is a well considered one. Learned counsel would submit that in respect of a specific plea raised by the plaintiff on the strength of a Will, all what is seen stated in the written statement is to the effect that the plaintiff should prove the contention based on the Will, with a further assertion that the Will is not probated. The contention in paragraph no.4 of the ``` O.P.(C).No. 321 of 2024 5 ``` written statement to the effect that the claim based on Will is at odds with the statement given in the pending suit O.S.No.986/2012 is infact contrary to the very pleadings of the petitioners/ defendants in their plaint in that suit. Learned counsel would hand over a copy of the plaint in O.S.No.986/2012, wherein it is seen pleaded towards the end of the paragraph 3 as follows: ``` ``` " Smt.Sara Alias died on 18/3/2005 and as per her will the 1/3rd right, which she was enjoying till then was vested with second defendant. Thereby the plaintiff and the second defendant are become the joint owners of A shedule property". ``` ``` Learned counsel for the respondent then invited the attention of this court to paragraph no.17 of the written statement, which is also extracted here below: ``` O.P.(C).No. 321 of 2024 6 “ `17. Except the partition, no other relief was sought for by the plaintiff is liable to be granted on the facts and circumstances of the case. Therefore, the suit is to be dismissed on all other grounds and reliefs except on partition.”` ``` 5.According to the learned counsel, the impression which one gathers by a reading of the written statement as a whole, coupled with the averment contained in the plaint in O.S.No.986/2012, is that there is no serious dispute with respect to the Will and that all claims in the plaint, except insofar as it pertains to partition, has to rejected. Now, by the proposed amendment vide Ext.P5, the defendants want to dispute the disposing capacity of the executant/testatrix and wanted to deny the Will as such. This is contrary to the existing pleadings and has the effect of taking away an admission made in the written statement, is the contention of the ``` 7 O.P.(C).No. 321 of 2024 ``` learned counsel for the respondent. Learned counsel would also submit that a copy of the Will was produced along with the suit, and that a certified copy was produced thereafter. What was produced during December 2023 is the original. The contention of the petitioners/defendants that they came to know about the fact that testatrix was hospitalized, only when they saw the original is nothing, but a convenient stand taken to explain the delay. The present contention of the petitioners/defendants that the copy produced was not readable is not seen reflected in any of the records produced before the court and the same is being propounded for the first time now. Counsel for the respondent finally relied upon the proviso to Order VI, Rule 17 to point out that, no reason as to why the amendment could not have been sought for before the commencement of the trial has been stated in Ext.P5. ``` ``` 6.Having heard the learned counsel appearing for both sides,this court cannot endorse the submissions ``` O.P.(C).No. 321 of 2024 8 ``` made by the learned counsel for the petitioners in this Original Petition. As rightly pointed out by the learned counsel for the respondent, the solitary contention which is seen raised in the written statement vide paragraph no.4 is that plaintiff should prove the averment regarding the Will and that the Will is not probated. There is no challenge, as such, to the Will. The statement in paragraph no. 4 of the written statement, that the claim based on Will is at odds with the statement in O.S.No.986/2012 is again, something which goes against the petitioners only. Having extracted the pleadings in the plaint preferred by the present petitioners in O.S.986/ 2012, it can only be found that the Will executed by the testatrix is seen admitted therein. This factual situation, supported by the contentions in paragraph no.7 of the written statement, would only go to show that the Will in question was not disputed seriously by the defendants/petitioners. As it is well settled, a ``` 9 O.P.(C).No. 321 of 2024 ``` denial in respect of a pleading in the plaint has to be specific. Now, the amendment seeks to question the disposing capacity of the testatrix. The contention that the petitioners/defendants came to know about the fact that the testatrix was at hospital, when she executed the will, only when petitioners saw the original Will produced, is something hard to believe. As rightly pointed out, copy of the Will was produced along with the plaint. Besides, a certified copy was also produced pending the proceedings. If that be so, the contents of the Will could have been read and perused by the defendants earlier. It is also not believable that the contention vide paragraph no.4 of the written statement were canvassed without reading and perusing the Will in question. ``` ``` 7.This court notice that the present amendment application has been preferred after commencement of the trial. The suit was scheduled for trial on ``` O.P.(C).No. 321 of 2024 10 ``` 05.01.2024, which was then adjourned to 10.01.2024 and from there to 17.01.2024. The proof affidavit on behalf of the plaintiff was filed on 03.01.2024 namely two days before the first date on which the suit was scheduled for trial. It is between 10.01.2024 and 17.01.2024 that the defendant preferred application for amendment. In M.Ravammav. Anjanamma dead by legal representative and Ors . [(2019) 4 SCC 332], the Honourable Supreme court held that an amendment may be rejected, if it seeks to introduce a totally different new and inconsistent case or when the amendment changes the fundamental character of the suit. On the proviso to Order VI, Rule 17 the Honourable Supreme Court held that an application for amendment after commencement of the trial shall not be allowed, unless the court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of the trial. The dictum was followed recently by Honourable Supreme ``` O.P.(C).No. 321 of 2024 11 ``` Court inBasavarajV.Indira[(2024) KLT Online 6101], wherein the dictum laid down inR e vamma (supra) has been quoted with approval. On the question as to point of time, at which a trial commences, learned counsel for the respondent relied upon a judgment of this Court in Sasikala.T.V and anotherv. C.P.Jose[2021 (1) KLT 767] which held that the suit commences on the date on which an affidavit in lieu of chief examination of a party of his witness is filed for the purpose of recording evidence. The above referred finding is arrived in paragraph no.14 of the judgment, after referring to a catena decisions of the various High Courts, as also, the Supreme Court. The jurisdictional fact to invoke the proviso to Order VI, Rule 17 is not satisfied in the instant facts. ``` O.P.(C).No. 321 of 2024 **==> picture [13 x 9] intentionally omitted <==** ``` In the circumstances, this Original Petition will stand dismissed, confirming Ext.P9 order of the learned Sub Judge. ``` ``` Sd/- ``` ``` C.JAYACHANDRAN, JUDGE ``` ``` SSG ``` O.P.(C).No. 321 of 2024 13 ## **`APPENDIX OF OP(C) 321/2024`** ## **`PETITIONERS’ EXHIBITS`** ``` Exhibit P1A TRUE COPY OF THE PLAINT IN O.S. NO. 128/2019 DATED 11-06-2019 ON THE FILES OF THE SUB-COURT, ERNAKULAM ``` - **`Exhibit P2 A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONERS AS DEFENDANT IN O.S. NO. 128/2019 DATED 15-01-2020 ON THE FILES OF THE SUB-COURT, ERNAKULAM`** - **`Exhibit P3 . A TRUE COPY OF THE LIST OF DOCUMENTS FILED BY THE RESPONDENT HEREIN AS PLAINTIFF IN O.S. NO. 128/2019 DATED 1912-2023 ON THE FILES OF THE SUB-COURT, ERNAKULAM`** - **`Exhibit P4 A TRUE COPY OF THE PETITION TO RECEIVE THE DOCUMENTS FILED BY THE PLAINTIFF DATED 03-01-2024`** - **`Exhibit P5 A TRUE COPY OF THE APPLICATION FOR AMENDMENT OF THE WRITTEN STATEMENT FILED BY THE PETITIONERS/DEFENDANTS AS I.A.NO.11/2024 IN O.S. NO. 128/2019 DATED 09-01-2024 ON THE FILES OF THE SUB-COURT, ERNAKULAM`** - **`Exhibit P6 A TRUE COPY OF THE APPLICATION FOR REMOVING THE SUIT FROM THE LIST FILED BY THE PETITIONERS/DEFENDANTS AS I.A.NO.12/2024 IN O.S. NO. 128/2019 DATED 09-01-2024 ON THE FILES OF THE SUB-COURT, ERNAKULAM`** - **`Exhibit P7 A TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENT/PLAINTIFF IN I.A.NO.11/2024 IN O.S. NO. 128/2019 DATED 16-01-2024 ON THE FILES OF THE SUB-COURT, ERNAKULAM`** - **`Exhibit P8 A TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENT/PLAINTIFF IN I.A.NO.12/2024 IN O.S. NO. 128/2019 DATED 16-01-2024 ON THE FILES OF THE SUB-COURT, ERNAKULAM`** 14 O.P.(C).No. 321 of 2024 ``` Exhibit P9A TRUE COPY OF THE ORDER IN I.A.NO.11/2024 IN O.S. NO. 128/2019 DATED 03-02-2024 ON THE FILES OF THE SUB-COURT, ERNAKULAM Exhibit P10A TRUE COPY OF THE ORDER IN I.A.NO.12/2024 IN O.S. NO. 128/2019 DATED 03-02-2024 ON THE FILES OF THE SUB-COURT, ERNAKULAM ```