2002 Supreme(Ker) 718
Kerala High Court
S.SANKARASUBBAN,K.PADMANABHAN NAIR
K.K.Thankappan - Appellant
Versus
K.S.Jayan - Respondent
Decided On : 11/26/2002
K. Ramakumar, V. R. Ramachandran Nair and Roy Abraham for Appellants. M. Kumaran, C. D. Jose, K. N. Narayana Pillai, C. M. Devan Sr. Counsel, N. Ravindran, Philip Antony Chacko, T. C. George, P. Gopalakrishnan Nair, C. S. Narayan, K. Prabhakaran, S. Bhasuran, N. Raghuraj, Smt. M. Chandralekha, P. Sankaran Kutty Nair, S. Sreekumar and Baiju John, for Respondents.
Headnote:
Civil Procedure Code 1908 – Section 9 – Order XX, Rule 13 – Right – Suit for administration only if they plead and prove exceptional circumstances witnesses - It was further held that it is a suit of civil nature and its cognizance by Court has not been expressly or impliedly barred - When real purpose of filing a suit for administration is to establish and enforce rival claims administration suit is not proper remedy – Held, At best it can be said that she was a concubine - It is well settled position of law that when a party pleads a custom he must actually plead custom in plaint - It is also true that when a man and woman continuously cohabits together under same roof for a long time it may arise a presumption - But that presumption is rebuttable – Order accordingly
PADMANABHAN NAIR, J. :- All these four appeals arise from a common judgment passed by the II Additional Subordinate Judge, Ernakulam in O. S. 643 of 1983 and connected suits. 11 suits were consolidated and tried together by the learned II Additional Subordinate Judge, Ernakulam. In one suit a preliminary decree was passed. 4 Suits were dismissed. 6 suits were decreed. A. S. 13 of 1989 is filed by defendants 5 to 7 and 9 to 11 in O. S. 643 of 1983. A. S. 98 of 1989 is filed by the plaintiff in O. S. 646 of 1983. A. S. 503 of 1990 is filed by the plaintiff in O. S. 413 of 1984. The appellants in all the three appeals are same persons. The learned II Additional Subordinate Judge treated O. S. 643 of 1983 as the leading case and evidence was recorded in that case. Since these appeals arise from a common judgment, these appeals are also heard and disposed of by a common judgment.
2. A. S. 13 of 1989 : This appeal is filed by defendants 5 to 7 and 9 to 11 in O. S. 643 of 1983, a suit for the administration of the estate of deceased K. K. Majeendran and deceased T. K. Omana. Respondents 1 to 3 filed the suit for the relief of administration of the estate of deceased Majeendran, who died on 9-10-1981 due to gun shoot injuries and late T. K. Omana, who died on 15-10-1983 and for other reliefs.
3. Respondents 1 and 2 and 4 to 6 are the children of deceased Omana, D/o. Thuruthil Kannukutty. 3rd respondent is her brother. Respondents 1 and 2 and 4 to 6 are children born to late Smt. T. K. Omana through Sri K. G. Sadanandan who had married Omana. According to the plaintiffs, Omana divorced K. G. Sadanandan on 6-4-1973 and married K. K. Majeendran on 8-4-1973 "in accordance with the custom prevailing in the community" and thereafter they were living together as man and wife. She had no children through Majeendran. Majeendran died on 9-10-1981. It is averred that all his assets were inherited by Omana, his widow. The further case is that Omana executed a Will on 9-2-1982 and it was deposited in accordance with law, with the District Registrar, Ernakulam. Smt. Omana died on 15-10-1983. After the death of Omana, the cover was opened and the Will registered. According to the plaintiffs, all the assets belonging to Omana were bequeathed to respondents 1, 2 and 4 to 6, who are her children through her first husband, and also to 3rd respondent, who is her brother. It is also averred that the 7th respondent in the appeal, who is the 4th defendant in the suit, was appointed as an Executor under, the Will executed by late Omana. According to the plaintiffs, that is the true, valid and last Will executed by Omana. The appellants and 8th defendant in the suit are the brothers and sisters of deceased Majeendran. The case of the plaintiffs is that subsequent to the of Omana, the appellants came to the building situated in plaint A schedule items 1 and 2 as visitors, but they have no manner of right or interest in any of the assets left by Majeendran and they are impleaded only to avoid obstruction in execution. It is also averred that defendants 9 and 10 had filed a suit as O. S. 890 of 1983 in the Munsiff's Court, Ernakulam against the 7th respondent to restrain him from claiming some rights over the assets of Majeendran. It is further averred that since Omana is the widow of Majeendran, she alone is the sole heir who is entitled to inherit the assets of deceased Majeendran and his brothers and sisters will not get any right over the assets of Majeendran. It is further averred that item Nos. 1 and 2 in plaint A schedule was purchased by Majeendran and Omana on 16-11-1977. Item No.3 in plaint A schedule is plot No.22 situated at Thottakkattukara, allotted to Majeendran by the G. C. D. A. in pursuance of the Housing Scheme. In item No. 4 Majeendran had 1/7th share which, according to the plaintiffs, devolved upon Omana. The plaint B schedules, according to the plaintiffs, are outstandings to be collected from the debtors of Majeendran. Plaint C sch