Kerala High Court
Moly Poulose vs Thankamony Elizebeth Poulose on 7 October, 2013
Author: V.Chitambaresh
Bench: V.Chitambaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
TUESDAY, THE 14TH DAY OF OCTOBER 2014/22ND ASWINA, 1936
OP(C).No. 118 of 2014 (O)
------------------------------------
PETITIONERS:-
-----------------------
1. MOLY POULOSE, AGED 54 YEARS
W/O.LATE JOHN PAUL (T.J.POULOSE)
RESIDING AT THUKALAN HOUSE, KANDANADU MURIYIL
KANDANADU P.O.,THIRUVANKULAM (VIA)
MANAKUNNAM VILLAGE, KANAYANNUR TALUK
ERNAKULAM DISTRICT, NOW RESIDING AT320 MAIN STREET
NEW MILFORD, NEW JERSEY 07646, USA.
2. JOHN POULOSE, AGED 26 YEARS
S/O.LATE PAUL (T.J.POULOSE)
RESIDING AT THUKALAN HOUSE, KANDANADU MURIYIL
KANDANADU P.O.,THIRUVANKULAM (VIA)
MANAKUNNAM VILLAGE, KANAYANNUR TALUK
ERNAKULAM DISTRICT, NOW RESIDING AT320 MAIN STREET
NEW MILFORD, NEW JERSEY 07646, USA.
3. MINU POULOSE, AGED 28 YEARS
D/O.LATE PAUL (T.J.POULOSE)
RESIDING AT THUKALAN HOUSE, KANDANADU MURIYIL
KANDANADU P.O.,THIRUVANKULAM (VIA)
MANAKUNNAM VILLAGE, KANAYANNUR TALUK
ERNAKULAM DISTRICT, NOW RESIDING AT320 MAIN STREET
NEW MILFORD, NEW JERSEY 07646, USA.
4. MERIN JOSEPH, AGED 33 YEARS
D/O.LATE PAUL (T.J.POULOSE)
RESIDING AT THUKALAN HOUSE, KANDANADU MURIYIL
KANDANADU P.O.,THIRUVANKULAM (VIA)
MANAKUNNAM VILLAGE, KANAYANNUR TALUK
ERNAKULAM DISTRICT, NOW RESIDING AT320 MAIN STREET
NEW MILFORD, NEW JERSEY 07646
USA.
ALL THE PETITIONERS ARE REPRESENTED BY THE
POWER OF ATTORNEY HOLDER V.J.JOSEPH
AGED 47 YEARS, S/O.LATE KOCHUPAPPU JOSEPH
RESIDING AT VADACKAL HOUSE, THAIKATTUKARA P.O.
ALUVA - 6.
BY ADVS.SRI.P.MARTIN JOSE
SRI.ELDHO CHERIAN
SRI.P.PRIJITH
OP(C).No. 118 of 2014 (O)
RESPONDENTS:-
---------------------------
1. THANKAMONY ELIZEBETH POULOSE, AGED 65 YEARS
W/O.P.K.POULOSE, APURVASREE APT., FLAT 3A
NO.4 THIRD CROSS BHOOPASANDRA MAIN RD.
NEAR VIDHYANAGAR SCHOOL, SANJAY NAGAR
BANGALORE - 560 094.
2. NIRMALA VARGHESE,, AGED 59 YEARS
W/O.K.K.VARGHESE, 134, KUMARANASAN NAGAR
KADAVANTHRA, COCHIN - 20, KANAYANNOOR TALUK.
3. KUNJAMMAABRAHAM,, AGED 54 YEARS
W/O.ABRAHAM PAUL MATHEWS, XXXVI/904, INDIRA NAGAR
KOCHI - 17, KANAYANNUR TALUK.
4. AYYAPPANKUTTY,, AGED 61 YEARS
S/O.VELAYUDHAN, KUNNUMMEL HOUSE, DOOR NO.VII/326
CHOTTANIKKARA PANCHAYATH, THALACODE
CHOTTANIKKARA P.O., KANAYANNUR VILLAGE, PIN - 682 312.
5. SHEEBA KUNNEL PHILIP, AGED 33, W/O. BIJU
MATTAMMEL HOUSE, KANDANADU DESOM
KANDANADU P.O., MANNAKUNNAM VILLAGE
KANAYANNUR TALUK, PIN - 682 305
R1 TO R3 BY ADVS. SRI.P.VISWANATHAN
SRI.SUNIL N.SHENOI
R4 BY ADVS. SRI.N.SAJU THOMAS
SRI.JOE POLLAYIL
R5 BY ADVS. SRI.BASIL MATHEW
SRI.K.B.SAJAN
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 14-10-2014,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
DCS
OP(C).No. 118 of 2014 (O)
---------------------------------
APPENDIX
PETITIONER(S)' EXHIBITS
-------------------------------------
EXHIBIT P1. TRUE COPY OF O.S.NO.953/2010 FILED BEFORE THE 3RD
ADDITIONAL SUB COURT, ERNAKULAM.
EXHIBIT P2. TRUE COPY OF WRITTEN STATEMENT IN O.S.NO.953/2010 FILED
BEFORE THE 3RD ADDITIONAL SUB COURT, ERNAKULAM.
EXHIBIT P3. TRUE COPY OF I.A.NO.6519/2012 IN O.S.NO.953/2010 FILED BEFORE
THE 3RD ADDITIONAL SUB COURT, ERNAKULAM.
EXHIBIT P4. TRUE COPY OF I.A.NO.6648/2012 IN O.S.NO.953/2010 FILED BEFORE
THE 3RD ADDITIONAL SUB COURT, ERNAKULAM.
EXHIBIT P5. TRUE COPY OF POWER OF ATTORNEY DATED 07.10.2013.
EXHIBIT P6. TRUE COPY OF COMMON ORDER DATED 11.11.2013 IN
I.A.NOS.6519/2012 AND 6648/2012 IN O.S.NO.953/2010 OF THE 3RD
ADDITIONAL SUB COURT, ERNAKULAM.
RESPONDENT(S)' EXHIBITS:- NIL
---------------------------------------
/TRUE COPY/
P.A. TO JUDGE
DCS
V.CHITAMBARESH,J.
-------------------------------
O.P.(C) No. 118 of 2014
-----------------------------------------
Dated this the 14th day of October, 2014
J U D G M E N T
The suit is one to cancel the alleged Will No. 158/2007 executed by one John Paul. There is also a prayer for recovery of possession of the property covered by the Will and for injunction. The evidence in the suit is being recorded and the trial is midway.
2. It appears that John Paul had allegedly executed Settlement Deed No. 5247/2007 as well. But then the property covered by the settlement deed is different from the one covered by the Will. The settlee has since alienated the property and the transferees are also sought to be impleaded.
3. The amendment and impleadment sought for by the plaintiffs has been correctly disallowed by the court below. There will be a mis-joinder of causes of action if the prayer of the plaintiffs as sought is allowed. The suit challenging a Will cannot be permitted to be converted as one challenging a settlement deed as well. This is particularly so when the property are different and the trial of the suit is halfway through. The proviso to Order VI Rule 17 of the Code of Civil Procedure also disables the plaintiffs from clubbing the relief by amendment and impleadment.
O.P.(C) No. 118 of 2014 2
4. Nothing disables the plaintiffs from filing a fresh suit challenging the settlement deed after impleading transferees also. I do not find any error of jurisdiction in the order impugned warranting interference in this supervisory jurisdiction.
The Original Petition is dismissed. No costs.
V.CHITAMBARESH JUDGE DCS