Kerala High Court
John Angelo Periera vs Dr.Molin Mathew on 5 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
TUESDAY, THE 5TH DAY OF JANUARY 2021 / 15TH POUSHA, 1942
OP(C).No.18 OF 2021
AGAINST THE ORDER DATED 17.12.2020 OF PRINCIPAL MUNSIFF'S COURT,
THIRUVANANTHAPURAM IN IA NO.6/2020 IN OS 2080/2011
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PETITIONER/PLAINTIFF:
JOHN ANGELO PERIERA, AGED 62 YEARS,
S/O. MATHEW PERIERA, RESIDING AT SRA 19,
TC 12/1079, BARTON HILL, LAW COLLEGE ROAD,
VANCHIYOOR, THIRUVANANTHAPURAM, REPRESENTED BY HIS
POWER OF ATTORNEY HOLDER, VINCENT PERIERA,
AGED 70 YEARS, S/O. MATHEW PERIERA, SRA 19,
TC 12/1079, BARTON HILL, LAW COLLEGE ROAD,
VANCHIYOOR, THIRUVANANTHAPURAM, PIN-695 035
BY ADVS.
SRI.GOPAKUMAR R.THALIYAL
SRI.S.VENUGOPAL
RESPONDENTS/DEFENDANTS:
1 DR.MOLIN MATHEW
AGED 72 YEARS
W/O. MATHEW PHILIP, SRA 18, T.C. 12/1078,
BARTON HILL, LAW COLLEGE ROAD,
THIRUVANANTHAPURAM, PIN-695 035.
2 DAVID FERNANDEZ,
AGED 61 YEARS, S/O. GEORGE FERNNDEZ, SRA 18,
T.C. 12/1078, BARTON HILL, LAW COLLEGE ROAD,
THIRUVANANTHAPURAM, PIN-695 035.
3 CHRISRTY FIGARDO, AGED 67 YEARS,
S/O GEORGE FERNANDEZ, SRA 10D,
TC 12/6107, BARTON HILL, LAW COLLEGE ROAD,
THIRUVANANTHAPURAM, PIN - 695035.
4 MATHEW PERIERA,
AGED 106 YEARS, S/O. SALVATHOOR PERIERA, SRA 19,
TC 12/1079, BARTON HILL, LAW COLLEGE ROAD,
THIRUVANANTHAPURAM, PIN-695035.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05.01.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SATHISH NINAN, J.
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O.P.(C) No.18 of 2021
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Dated this the 5th day of January, 2021
JUDGMENT
The dismissal of an application seeking to
examine the second defendant in the suit as a
witness, is under challenge by the plaintiff.
2. The second defendant who is sought to be
examined is claimed to be an attesting witness of a
Will executed by the father of the plaintiff. The
testator is alive and is the additional 4 th
defendant in the suit. As noticed by the trial
court, examination of a witness to the Will of
which the testator is still alive, is irrelevant
and unnecessary.
3. So also, no extra ordinary circumstances are
made out necessitating the examination of the
opposite side as a witness. The suit is for
injunction simplicitor filed by the plaintiff in
his capacity as the son of the 4 th additional
defendant since due to old age the father is unable
to institute the proceedings, and not on the
O.P.(C) No.18 of 2021
strength of the Will. The court below was right in
dismissing the application.
The original petition lacks merits and is
accordingly dismissed.
Sd/-
SATHISH NINAN
JUDGE
kns/-
//True Copy//
P.S. to Judge
OP(C).No.18 OF 2021
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S. NO.
2080/2011 DATED 01.12.2011 ON THE FILES
OF THE PRINCIPAL MUNSIFF'S COURT,
THIRUVANANTHAPURAM.
EXHIBIT P2 TRUE COPY OF THE PARTITION DEED NO.
1004/2003 DATED 15.03.2003 OF THE SUB
REGISTRAR'S OFFICE, THIRUVANANTHAPURAM.
EXHIBIT P3 TRUE COPY OF THE WRITTEN STATEMENT
DATED 27.03.2012.
EXHIBIT P4 TRUE COPY OF THE AFFIDAVIT AND PETITION
DATED 23.11.2020 IN I.A.NO. 3/2020 IN
O.S. NO. 2080/2011
EXHIBIT P5 TRUE COPY OF THE DEPOSITION OF THE 4TH
RESPONDENT DATED 12.12.2020.
EXHIBIT P6 TRUE COPY OF WILL DEED NO. 17/2005
DATED 09.02.2005 OF THE SUB REGISTRAR
OFFICE, THIRUVANANTHAPURAM.
EXHIBIT P7 TRUE COPY OF THE AFFIDAVIT AND PETITION
DATED 14.12.2020 IN I.A.NO. 6/2020 IN
O.S. NO. 2080/2011
EXHIBIT P8 TRUE COPY OF THE OBJECTION DATED
16.12.2020.
EXHIBIT P9 TRUE COPY OF THE ORDER DATED 17.12.2020
PASSED BY THE PRINCIPAL MUNSIFF COURT,
THIRUVANANTHAPURAM IN I.A. NO. 6/2020
IN O.S. NO. 2080/2011
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