Jayasree @ Jayasree K.R vs Radha
2021 Latest Caselaw 3143 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

             THE HONOURABLE MR. JUSTICE SATHISH NINAN

     THURSDAY, THE 28TH DAY OF JANUARY 2021 / 8TH MAGHA, 1942

                       OP(C).No.253 OF 2021

 AGAINST THE ORDER DATED 15.12.2020 IN I.A.NO.3/2020 IN OS 9/2017
                     OF SUB COURT, CHERTHALA

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PETITIONER/R1 PLAINTIFF:


             JAYASREE @ JAYASREE K.R
             AGED 55 YEARS
             D/O KRISHNAN, THEKKEVELI, PERUMBALAM VILLAGE,
             PERUMBALAM MURI, CHERTHALA TALUK, ALAPPUZHA DISTRICT,
             PIN-688 570, (PRESENTLY RESIDING AT ASARIPARAMBIL,
             MAROTTICHUVADU, VAZHAKKALA VILLAGE, EDAPPALLY
             P.O.KANAYANNUR TALUK, ERNAKULAM DISTRICT, PIN-682
             024.

             BY ADVS.
             DR.V.N.SANKARJEE
             SRI.V.N.MADHUSUDANAN
             SMT.R.UDAYA JYOTHI
             SRI.M.M.VINOD
             SMT.M.SUSEELA
             SMT. KEERTHI B. CHANDRAN
             SHRI.VIJAYAN PILLAI P.K.
             SRI.C.PURUSHOTHAMAN NAIR

RESPONDENTS/R2,R3 AND PETITIONERS/DEFENDANTS:


      1      RADHA
             AGED 76 YEARS
             W/O KRISHNAN, THEKKEVELI, PERUMBALAM VILLAGE,
             PERUMBALAM MURI, CHERTHALA TALUK, ALAPPUZHA DISTRICT,
             PIN-688 570

      2      AJITH KUMAR,
             AGED 58 YEARS
             S/O KRISHNAN, THEKKEVELI, PERUMBALAM VILLAGE,
             PERUMBALAM MURI, CHERTHALA TALUK, ALAPPUZHA DISTRICT,
             PIN-688 570
 OP(C).No.253 OF 2021               -2-



        3        KRISHNAKUMAR,
                 AGED 53 YEARS
                 S/O KRISHNAN, THEKKEVELI, PERUMBALAM VILLAGE,
                 PERUMBALAM MURI, CHERTHALA TALUK, ALAPPUZHA
                 DISTRICT, PIN-688 570


     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 28.01.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                    SATHISH NINAN, J.
          ==================
                O. P. (C) No.253 of 2021
          ==================
         Dated this the 28th day of January, 2021

                            JUDGMENT

The petitioner is the plaintiff in a suit for

partition. He is challenging the order appointing an Advocate Commissioner to take evidence of a

witness in the suit.

2. According to the petitioner-plaintiff, the

property sought to be partitioned belonged to

Krishnan-the husband of the first defendant and the

father of the plaintiff and other defendants. The

suit was filed on the premise that the father died

intestate. The defendants set up a Will claimed to

be executed by Krishnan and the first defendant,

registered as document No.54/2003. When the Will

was set up by the defendants 2 and 3, the

plaintiff-petitioner had the plaint amended

incorporating a contention that the Will bearing

No.54/2003 has not come into force and that it is

not the last Will of the father-Krishnan. O. P. (C) No.253 of 2021

3. Trial court as per the impugned order

appointed an Advocate Commissioner to examine one

of the witnesses to the Will. The said witness is

presently aged 80 years. In view of the present

Covid Pandemic, it was felt that it is not

conducive to have the witness brought to court, and

accordingly an Advocate Commissioner was appointed.

The other witness to the said Will is no more. In

the circumstances, the court was justified in

appointing an Advocate Commissioner for taking

evidence of the witness. The order impugned

warrants no interference. The contention of the

petitioner that the Will in question is not the

last Will and testament of the testator, are all

matters to be urged and considered in the suit, and

is irrelevant at this stage.

The original petition fails and is accordingly

dismissed.

Sd/-

SATHISH NINAN JUDGE

kns/-

                                           //True Copy//                        P.S. to Judge
 OP(C).No.253 OF 2021




                            APPENDIX
PETITIONER'S/S EXHIBITS:

EXHIBIT P1             TRUE COPY OF THE PLAINT DATED 13.3.2017 IN

O.S NO 9/2017 ON THE FILE OF THE SUB COURT, CHETHALA (AS AMENDED).

EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT DATED 28.9.2017 FILED BY THE 1ST RESPONDENT IN OS NO 9/2017 ON THE FILE OF THE SUB COURT, CHERTHALA

EXHIBIT P3 TRUE COPY OF THE WRITTEN STATEMENT DATED 16.7.2019 FILED BY THE 2ND RESPONDENT IN OS NO 9/2017 ON THE FILE OF THE SUB COURT, CHERTHALA

EXHIBIT P4 TRUE COPY OF THE WRITTEN STATEMENT DATED 2.8.2017 FILED BY THE 3RD RESPONDENT IN OS NO 9/2017 ON THE FILE OF THE SUB COURT CHERTHALA

EXHIBIT P5 TRUE COPY OF THE WILL DATED 12.5.2002 AND BEARING NO 54/111/2003 OF THE S.R.O PANAVALLY AS CORRECTED

EXHIBIT P6 TRUE COPY OF THE APPLICATION IA NO 3/2020 DATED 12.6.2020 FILED BY THE 3RD RESPONDENT IN OS NO 9/2017 ON THE FILE OF THE SUB COURT, CHERTHALA

EXHIBIT P7 TRUE COPY OF THE OBJECTION DATED 11.11.2020 FILED BY THE 1ST RESPONDENT AGAINST IA NO 3/2020 IN OS NO 9/2017 ON THE FILE OF THE SUB COURT, CHERTHALA

EXHIBIT P8 TRUE COPY OF THE ORDER DATED 15.12.2020 IN IA NO 3/2020 IN OS NO 9/2020 ON THE FILE OF THE SUB COURT, CHERTHALA

EXHIBIT P9 TRUE COPY OF THE DEPOSITION DATED 110.6.2020 OF DW1-ONY T.A IN OS NO 9/2017 ON THE FILE OF THE SUB COURT, CHERTHALA

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