Sasikumar and others v. Santhakumari and others

_**OP(C).1921/18**_ 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 5[TH] DAY OF OCTOBER 2021 / 13TH ASWINA, 1943** **OP(C) NO. 1921 OF 2018** **AGAINST THE ORDER/JUDGMENT IN OP 1/2017 OF MUNCIFF** **MAGISTRATE COURT,MANNARKAD, PALAKKAD** ## **PETITIONER/S:** 1 SASIKUMAR AGED 43 YEARS 43 YEARS, S/O. LATE BALAN NAIR, MELU VEEDU, THENGARA AMSOM DESOM AND POST, MANNARKKAD TALUK, PALAKKAD DISTRICT. 2 RADHAKRISHNAN AGED 48 YEARS 48 YEARS, S/O. LATE PADMAVATHI AMMA. 3 PRABHAKARAN AGED 46 YEARS 46 YEARS, S/O. LATE PADMAVATHI AMMA. 4 NIRMALA 34 YEARS, D/O. LATE PADMAVATHI AMMA. 5 SANTHYA AGED 30 YEARS 30 YEARS, D/O. LATE PADMAVATHI AMMA.2 TO 5 ARE RESIDING AT VADAKKEMADATHIL VEEDU, THONARI, THENGARA AMSOM, DESOM AND POST, MANNARKKAD TALUK, PALAKKAD DISTRICT. 6 DEEPA AGED 28 YEARS 28 YEARS, W/O. BALASUBRAMANIAN, PATTAKKAL VEEDU, PAYYANEDAM, KUMARAMPUTHOOR AMSOM, DESOM, _**OP(C).1921/18**_ 2 MANNARKKAD TALUK, PALAKKAD DISTRICT. 7 RUGMINI AGED 54 YEARS 54 YEARS, W/O. SREENIVASAN, SAVITHAM VEEDU, VELLINEZHI AMSOM, DESOM, OTTAPALAM TALUK. 8 VELAYUDHAN AGED 52 YEARS 52 YEARS, S/O. SREEDEVI AMMA, 1/916, MARIAMMANKOVIL STREET, ARIVOLI NAGAR, PALLADAM, THIRUPPUR, TAMIL NADU. 9 RUGMINI AMMA AGED 65 YEARS 65 YEARS, D/O. RAGHAVAN NAIR, KUNNUMMEL VEEDU, MYLAMPADAM, KUMARAMPUTHOOR AMSOM DESOM, MANNARKKAD TALUK. 10 SREEDEVI AMMA AGED 43 YEARS 43 YEARS, W/O. MADHUSOODANAN NAIR, THOTTUPURATH HOUSE, THAVALAM, ATTAPADI, MANNARKKAD TALUK. 11 KUNJI KRISHNAN AGED 38 YEARS 38 YEARS, S/O. LATE BALAN NAIR, MELUVEETTIL HOUSE, THENGARA AMSOM, DESOM AND POST, MANNARKKAD TALUK. 12 MURALEEDHARAN AGED 36 YEARS 36 YEARS, S/O. LATE BALAN NAIR. 13 JAYASREE AGED 28 YEARS 28 YEARS, D/O. LATE BALAN NAIR. 14 KAMALAVATHI AGED 63 YEARS 63 YEARS, W/O. LATE BALAN NAIR.12 TO 14 ARE RESIDING AT MELUVEETTIL HOUSE, THENGARA AMSOM, DESOM AND POST, MANNARKKAD TALUK. BY ADV SRI.K.RAJESH SUKUMARAN _**OP(C).1921/18**_ 3 ## **RESPONDENT/S:** 1 SANTHAKUMARI AGED 64 YEARS 64 YEARS, D/O. JANAKI AMMA, ATHIYARATH MELUVEETTIL, ARAKKUPARAMBA AMSOM, DESOM AND POST, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT - 679 322. 2 DEVALI AGED 58 YEARS 58 YEARS, D/O. PARUKUTTY @ KUNJIMALU AMMA, PRASANTHI, PULLUSSERY DESOM, KARAKKURISSI AMSOM AND POST, MANNARKKAD TALUK - 678 595. 3 SIVADASAN NAIR AGED 64 YEARS 64 YEARS, S/O. ATHIYARATH MELUVEETTIL PARUKUTTY @ KUNJIMALU AMMA, B32, AASHRAY SOCIETY, NANDALAV ROAD, BAROOCH POST AND DISTRICT, GUJARAT, PIN - 392001. 4 VIJAYALAKSHMI AGED 53 YEARS 53 YEARS, D/O. ATHIYARATH MELUVEETTIL PARUKUTTY @ KUNJIMALU AMMA, PEYYANAPUZHA VEEDU, THENGARA AMSOM, DESOM AND POST, MANNARKKAD TALUK, PIN - 678 761. 5 KARTHIKA KARTHIKA RAMACHANDRAN AGED 53 YEARS 53 YEARS, W/O. ATHIYARATH MELUVEETTIL LATE RAMACHANDRAN, MANIKKATH VEEDU, KARUKUTTY POST, ANGAMALLY - 683 576. 6 PARVATHY PARVATHY RAMACHANDRAN AGED 31 YEARS 31 YEARS, D/O. ATHIYARATH MELUVEETTIL LATE RAMACHANDRAN, MANIKKATH VEEDU, KARUKUTTY POST, ANGAMALLY - 683 576. 7 VINOD C.NAIR AGED 38 YEARS 38 YEARS, S/O. ATHIYARATH MELUVEETTIL LATE RAMACHANDRAN, MANIKKATH VEEDU, KARUKUTTY POST, ANGAMALY - 683 576. _**OP(C).1921/18**_ 4 R1 BY ADVS. MATHEW B. KURIAN R3 by ADV.SRI.R.SREEHARI SRI.SACHIN VYAS K.T. THOMAS NIKHIL BERNY THIS OP (CIVIL) HAVING COME UP FOR HEARING ON 28.7.2021, THE COURT ON 05.10.2021 DELIVERED THE FOLLOWING: _**OP(C).1921/18**_ 5 ## **V.G.ARUN, J.** ## **----------------------------------------------O.P(C).No. 1921 of 2018 ----------------------------------------------Dated this the 5[th] day of October, 2021** ## **JUDGMENT** The petitioners are aggrieved by Exhibit P6 order, dismissing their application for impleadment in O.P.No.1 of 2017 pending on the files of the Munsiff’s Court, Mannarkkad stands. The essential facts, leading up to Exhibit P6 order, are as follows; Nani Amma, the great-grandmother of the petitioners had six children, Janaki Amma, Padmanabhan Nair, Balan Nair, Raghavan Nair, Sreedevi Amma and Parukkutty Amma. As per registered will No.59 of 1978 of SRO, Mannarkkad, Nani Amma bequeathed her property in the name of the 1st respondent’s mother Janaki Amma. The bequest is subject to the condition that Janaki Amma pays Rs.200/- each to her brothers Padmanabhan Nair, Balan Nair and Raghavan Nair and Rs.200/- to the children of Sreedevi Amma and Parukkutty Amma. The amount to be paid as per the will was made a charge over the property. According to the 1st respondent, her mother Janaki Amma paid Rs.200/- to Padmanabhan Nair, Balan Nair, the wife and the children of Raghavan Nair and the children of Sreedevi Amma under receipts registered at the SRO, Mannarkkad. Even though Janaki Amma offered Rs.200/- to the legal heirs of Parukkutty Amma, they refused to accept the amount or to issue receipts. Janaki Amma _**OP(C).1921/18**_ 6 died on 10.11.2016. The 1st respondent filed O.P.No.1 of 2017 under Section 83 and 102 of the Transfer of Property Act read with Section 151 CPC seeking permission of the court to deposit the amount Rs.200/- due to the legal heirs of Parukkutty Amma in court, to record the same and to vacate the charge created over the properties. Only the legal heirs of Parukkutty Amma were arrayed as respondents in the O.P. Petitioners are the legal heirs of Padmanabhan Nair, Balan Nair, Raghavan Nair and Sreedevi Amma. Pending the O.P., 2[nd] respondent herein filed O.S.No.2 of 2018 before the Munsiff’s Court,Mannarkkad seeking partition of Nani Amma’s properties. Petitioners are also arrayed as defendants in the suit. The petitioners filed I.A.No.279 of 2018 in O.P.No.1 of 2017, seeking to get themselves impleaded. The 1st respondent opposed the application contending that the petitioners are not necessary or proper parties and have no subsisting right in the property, since their predecessors-ininterest had received Rs.200/- from the petitioners’ mother and had issued receipts. After considering the rival contentions, court below passed Exhibit P6 order, dismissing the application for impleadment. Hence, this original petition. 2. Heard Sri.Rajesh Sukumaran, learned counsel for the petitioner, Sri.K.T.Thomas, learned counsel for the 1st respondent and Sri.R.Sreehari, learned counsel for the 3rd respondent. 3. Learned counsel for the petitioners contended that _**OP(C).1921/18**_ 7 O.P.No.1 of 2017 filed by the 1[st] respondent and O.S.No.2 of 2018 filed by the 2[nd] respondent are pending before the same court and pertains to the same issue. It is submitted that, since the petitioners are denying the execution of the will and acceptance of Rs.200 by their predecessors-in-interest, they are necessary parties to be impleaded. No prejudice will be caused to the 1st respondent by the impleadment and on the other hand, quietus can be given to all disputes arising out of the will. 4. Learned counsel for the 1st respondent contended that the petitioners are not necessary or proper parties for deciding the dispute involved, inasmuch as the genuineness of the will does not arise for consideration in the original petition. Placing reliance on the decision in _**Narayana Kurup v. Manoharan**_ [1991 (2) KLT 330], it is contended that even though the Indian Succession Act does not make any specific provision regarding the mode of payment of the amount due to a legatee under a will, the court’s power under Section 151 CPC, to allow deposit of the amount in the court cannot denied. Reference is made to the decision in _**Bishwanath Prasad Singh v. Rajendra Prasad and Another**_ [(2006) 4 SCC 432] and _**Vasantha Kumari v. Sarojini**_ [2008 (1) KLT 451], to contend that the proceedings under Section 83 of the Transfer of Property Act are only ministerial, since nothing is heard and finally decided and the directions will not operate as res judicata in any other proceedings. _**OP(C).1921/18**_ 8 5. The prayer in O.P.No.1 of 2017 is to permit the petitioner to deposit the amount of Rs.200/- due to Parukutty Amma in the name of her legal heirs and to remove the charge over the property. The specific case of the petitioners is that the will is not genuine and that the claim of having paid Rs.200 to their predecessors-in-interest is false. The subject matter of consideration in _**Vasantha Kumari**_ (supra) was a similar clause in a gift deed. Therein also the genuineness of the gift deed was challenged by persons who refused to accept the amount. After elaborately considering the question regarding maintainability of an original petition under Section 83 of the Transfer of Property Act and the dictum in _**Narayana Kurup**_ and _**Bishwanath Prasad Singh**_ (supra) , this Court concluded as under; _“14. As per Section 100, all the provisions in the Transfer of Property Act which apply to simple mortgage, shall, as far as may be, apply to a charge. The amount payable as per the terms of the settlement deed, according to the petitioners, constitute a charge on the property. The petitioners wanted the charge to be redeemed and, therefore, filed the Original Petition with a prayer to permit them to deposit the amount payable under the terms of the settlement deed. In view of the provision in Section 100 that the provisions of the Transfer of Property Act relating to simple mortgage shall apply to the charge, the petitioners could file the Original Petition under Section 83 of the Transfer of Property Act. Though the petition does not state that it was filed under_ _**OP(C).1921/18**_ 9 _Section 83 of the Transfer of Property Act, in sum and substance, the petition is under Section 83 as the averments in the petition and the relief prayed for in the petition would disclose. In order to record the deposit under Section 83 of the Transfer of Property Act or to record the same by invoking Section 151 of the Code of Civil Procedure, the Court is not expected to decide the disputes between the parties relating to the genuineness or otherwise of the document or the respective rights and liabilities of the parties or the entitlement of any party to receive any amount or as to the sufficiency of the amount or any other matter which is required to be settled in a properly constituted civil suit The jurisdiction of the Court in disposing of such an Original Petition is only procedural and ministerial in character as held by the Supreme Court in (2006) 4 SCC 432. The Court need only look into the document and ascertain whether the petitioners are liable to pay certain amounts to the respondents as per the terms of the said document. If the Court is satisfied that there is such a liability, permission can be granted to the petitioners to make the deposit. The court shall not in such case decide the question whether the settlement deed is genuine or whether the donor had the required sound disposing state of mind at the time of execution of the document or whether the document is vitiated by fraud, undue influence or coercion. Such question are alien to a petition under Section 83 of the Transfer of Property Act or one under Section 151 of the Code of Civil Procedure to record the deposit. Once the deposit is recorded, the liability of the person bound under the document to_ _**OP(C).1921/18**_ 10 _discharge the liability would come to an end. The petitioners cannot be compelled to indulge in a suit on title or a suit for declaration, when according to them, there is no cloud on their title or when they do not want any declaration in respect of their title. It is not for the court to compel a parly to institute a suit When a petition of the nature now under consideration is filed, the only requirement is to ascertain whether the petitioners are liable to pay the amount and whether they are prepared to make the deposit. After service of notice on the respondents, the court can record the deposit and relegate the parties to agitate all their contentions and the defence in a properly constituted civil suit.”_ 6. The petitioners had sought impleadment on the premise that the will is not genuine and their predecessors-ininterest had not accepted the amount of Rs.200/-. As held in _**Vasantha Kumari**_ (supra), such contentions are beyond the scope of the original petition filed under Section 83 of the T.P Act and the remedy of the petitioners is to raise those contentions in a properly constituted suit. The second respondent has already resorted to such remedy. Hence, I find no reason to interfere with the impugned order. In the result, the original petition is dismissed. **Sd/V.G.ARUN, JUDGE** _vgs_ _**OP(C).1921/18**_ 11 ## **APPENDIX OF OP(C) 1921/2018** PETITIONER EXHIBITS EXHIBIT P1 - PHOTOCOPY OF O.P. 1/2017 OF MUNSIFF MAGISTRATE COURT, MANNARKKAD. - EXHIBIT P2 PHOTOCOPY OF THE OBJECTION FILED BY THE 2ND RESPONDENT IN O.P.1/2017 OF MUNSIFF MAGISTRATE COURT, MANNARKKAD. - EXHIBIT P3 PHOTOCOPY OF THE PLAINT IN O.S.NO. 2/2018 OF MUNSIFF MAGISTRATE COURT, MANNARKKAD. - EXHIBIT P4 PHOTOCOPY OF THE WRITTEN STATEMENT FILED BY THE 1ST DEFENDANT IN O.S. 2/2018 OF MUNSIFF MAGISTRATE COURT, MANNARKKAD. - EXHIBIT P5 - PHOTOCOPY OF THE AFFIDAVIT FILED IN SUPPORT OF IA. 279/2018 IN O.P.1/2017 OF MUNSIFF MAGISTRATE COURT, MANNARKKAD. - EXHIBIT P6 - PHOTOCOPY OF THE ORDER PASSED IN I.A. 279/2018 IN O.P. 1/2017 OF MUNSIFF MAGISTRATE COURT, MANNARKKAD DATED 04.07.2018. EXHIBIT P7 PHOTOCOPY OF THE JUDGMENT PASSED IN O.P. (C) NO. 983/2018 DATED 04.07.2018 OF THIS HONOURABLE COURT.