Kerala High Court
Mary Mathew vs Chachikutty (Died) on 10 August, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
WEDNESDAY, THE 10TH DAY OF AUGUST 2022 / 19TH SRAVANA, 1944
EX.SA NO. 10 OF 2022
AGAINST THE JUDGMENT DATED 30.07.2010 IN AS 124/2010 OF
ADDITIONAL DISTRICT COURT (SPECIAL COURT), CHALLENGING THE
ORDER DATED 01.03.2010 IN E.A. 31/09 IN EP 192/08 IN
OS 609/1999 OF PRINCIPAL MUNSIFF COURT , KOTTAYAM
APPELLANT/CLAIM PETITIONER:
1 MARY MATHEW,
AGED 81 YEARS
W/O. MATHEW, THADATHILPARAMBIL HOUSE,
CHANNANIKKADU KARA, PANACHIKKAD, KOTTAYAM.
2 ADDL. PUNNOSE MATHEW
S/O. MATHEW, THADATHIL PARAMBIL HOUSE,
CHANNANIKKAD KARA, PANACHIKKADU, PAKKOL P.O.,
KOTTAYAM-686533. (R11 IS TRANSPOSED AS
SUPPLEMENTARY APPELLANT 2, VIDE ORDER DATED
20/12/2021 IN IA 2/2019 IN MJC 147/2019 IN
UNNUMBERED EX.S.A----/2011, (FILING NO. EX. SA
1129/2011))
BY ADVS.
VINOD RAVINDRANATH
MEENA.A.
ASHWIN SATHYANATH
ROHIT NANDAKUMAR
RESPONDENT/COUNTER PETITIONERS/DEFENDANTS:
1 CHACHIKUTTY (DIED)
CHETHIMATTATHIL HOUSE, MALLOOSSERY P.O., KOTTAYAM
686041.
2 * ELSSY, (DIED)
AGED 63, KUNNEL HOUSE, CHINGAVANAM, NATTAKOM,
KOTTAYAM-686013.
3 MARIAMMA,
AGED 71, W/O. KURIAKOSE, CHERUKARIYATH, VEBALLY
MODIYIL, PADINJATTU OTHARA KARA DO VILLAGE,
THIRUVALLA, PATHANAMTHITTA-689551.
Ex.S.A.No.10/2022
2
4 ANNAMMA,
D/O. KURIAKOSE, ALAPPATTU HOUSE OF DO DO DO
5 AMMINI @ ACHAMMA KURIAKOSE,
AGED 49, AKKARAKANDATHIL HOUSE, MUZHUKKER BHAGOM,
THIRUVANDOOR, CHENGANNOOR-689109.
6 M.K. KURIAKOSE @ RAJU,
AGED 42, S/O. KURIAKOSE, CHERUKARIYATH, VEMBILLY
MODIYIL HOUSE, PADINJATTU OTHARA KARA DO VILLAGE,
THIRUVALLA, PATHANAMTHITTA-689551.
7 BINCY MATHEW,
W/O. MOTI T. ULAHANNAN, URUMBATTU HOUSE,
MUTTAMBALAM, KOTTAYAM-686004.
8 MOTI T. ULAHANNAN,
URUMBATTU HOUSE, MUTTAMBALAM, KOTTAYAM-686004.
9 C.M. MATHEW,
UMMACHERIL HOUSE, KURUCHI, KOTTAYAM-686549.
10 C.M. PUNNOSE,
OF DO. DO. DO.
11 * PUNNOSE MATHEW,
S/O. MATHEW, THADATHILPARAMBIL HOUSE,
CHANNANIKKAD KARA, PANACHIKKADU, KOTTAYAM-686533.
(TRANSPOSED AS SUPPLEMENTARY APPELLANT '2')
(R11 IS TRANSPOSED AS SUPPLEMENTARY APPELLANT 2,
VIDE ORDER DATED 20/12/2021 IN IA 2/2019 IN MJC
147/2019 IN UNNUMBERED EX.S.A----/2011, (FILING
NO. EX. SA 1129/2011))
12 ADDL R11-MATHEW,
S/O.CHACHIKUTTY (LATE),
AGED 63, CHETTIMATTATHIL, THYAZHATHANGADI P.O.,
KOTTAYAM 686 005.
13 ADDL R12-THANKACHAN,
S/O. CHACHIKKUTTY (LATE), AGED 55, MALLUSERI PO,
KOTTAYAM, PIN - 686005.
14 ADDL.R13-ANNAMMA, D/O. CHACHIKUTTY (LATE), W/O.
SCARIYA, THONDUKUZHIYIL, CHINGAVANAM PO,
KOTTAYAM, PIN - 686531.
15 ADDL. R14. KUNJUMOL,
AGED 63, W/O CHACHIKUKTTY (LATE), CHETTIMATTATHIL
HOUSE, NEELAMPERUR P.O., ALAPUZHA DISTRICT, PIN-
686534
Ex.S.A.No.10/2022
3
16 ADDL. R15. TINU,
D/O. P.T. CHAKO (LATE), AGED 25, CHETTIMATTATHIL
HOUSE, NEELAMPERUR PO, ALAPUZHA DISTRICT, PIN-
686534.
17 ADDL.R16. TITTU,
D/O. P.T. CHAKO (LATE) AGED 20, CHETTIMATTATHIL
HOUSE, NEELAMPERUR PO, ALAPUZHA DISTRICT, PIN-
686534.
* LEGAL REPRESENTATIVES OF DECEASED 1ST
RESPONDENT ARE IMPLEADED AS ADDITIONAL
RESPONDENTS 11 TO 16, VIDE ORDER DATED 28.03.2022
IN I.A. NO. 3/19 IN MJC 147/2019 IN UNNUMBERED
EX.SA-/2011 (FILING NO. EX.SA 1129/2011).
18 ADDL .R17-JESSY,
AGED 45, D/O. ELSSY, VELLUTHURATHI, KUZHIMATTOM
PO, KOTTAYAM, PIN - 686532.
19 ADDL. R18. JANCY,
AGED 43, D/O. ELSSY, KANJIRATHIN MOOTT,
VAKATHANAM PO, KOTTAYAM, PIN - 686011.
20 ADDL. R19. ANU,
AGED 40, D/O. ELSSY, MOOZHIPARAYIL HOUSE,
KUZHIMATTOM PO, KOTTAYAM, PIN-686532.
21 ADDL. R20. ANEESH,
AGED 38, S/O. ELSSY, KUNNEL VEEDU, CHINGAVANAM
PO, KOTTAYAM, PIN - 686007.
* LEGAL REPRESENTATIVES OF DECEASED 2ND
RESPONDENT ARE IMPLEADED AS ADDITIONAL
RESPONDENTS 17 TO 20, VIDE ORDER DATED 28.03.2022
IN I.A. NO.2/20 IN MJC 147/2019 IN UNNUMBERED
EX.SA-/2011 (FILING NO. EX.SA 1129/2011).
ADV.K.M.VARGHESE FOR ADDL.R11 TO R16
THIS EXECUTION SECOND APPEAL HAVING COME UP FOR
ADMISSION ON 05.08.2022, THE COURT ON 10.08.2022 DELIVERED
THE FOLLOWING:
Ex.S.A.No.10/2022
4
M.R.ANITHA, J
******************
Ex.S.A.No.10 of 2022
-------------------------------------------------
Dated this the 10th day of August, 2022
This Ex.S.A has been directed against the judgment in
A.S.No.124/2010 on the file of Additional District Judge (Special),
Kottayam. Appellant is the claimant/petitioner in E.A.No.31/2009
in E.P.No.192/2008 in O.S.No.609/1999 on the file of the
Principal Munsiff's Court, Kottayam. E.A.No.31/2009 has been
tried along with E.A.No.267/2009 and E.A.No.90/2009 and a
common order was passed.
2. E.A.No.31/2009 has been filed under Order 21 Rule 99
alleging that petition schedule property having an extent of 1.35
Acres comprised in old Survey No.302/4 of Panachikkad village
belongs to petitioner by virtue of a Will executed in her favour by
her father-in-law, Mathen on 05.06.1965 and she was in
possession and enjoyment of the same. The said Mathen died on
30.06.1967. When the petitioner approached the revenue
Ex.S.A.No.10/2022
authorities to effect mutation of the property in her name, they
refused to do it for the reason that life interest in favour of
husband and in-laws have not been seized. While so,
O.S.No.609/1999 was filed by the counter petitioners and
obtained a decree for partition of the properties belonged to
deceased Mathen without impleading the petitioner as party to
the proceedings. Now, E.P.No.192/2008 has been filed for
delivery of possession of the petition schedule property. Hence
petition has been filed with a prayer to declare her title to the
petition schedule property and to restrain the counter petitioners
by permanent injunction from taking delivery of the petition
schedule property.
3. Counter petitioners 1, 3, 4, 5 and 6 filed objections
disputing the genuineness of the Will relied on by the petitioner
and contending that it is a fabricated document. Contesting
defendants in O.S.No.609/1999 filed counter contending that
Mathen died intestate. On the death of Mathew, the husband of
the petitioner, their son Punnoose Mathew was impleaded as
Ex.S.A.No.10/2022
additional 6th defendent and he also did not disclose the existence
of the Will now relied on by the petitioner. The gift deed
executed by the petitioner's husband with respect to the plaint
item No.2 property is also declared as null and void. Existence of
the Will was not revealed even before the appellate court in
A.S.No.136/2003. Petitioner's son Punnoose contended that the
petition schedule property belongs to his father who effected
mutation in his name. The petitioner was residing along with her
husband and son and hence it is unbelievable that she did not
know the pendency of O.S.No.609/1999. The Commissioner and
Surveyor appointed by the court visited the property twice and
demarcated the property. Even in the objection statement of the
petitioner's son Punnose in the execution petition also, there is
no mention about the Will relied on by the petitioner. The house
in the petition schedule property was allotted to the share of
deceased Mathew, the husband of the petitioner. So, the claim
petition has been filed without any bona fides.
4. Pending this proceedings appellant died and her son
Ex.S.A.No.10/2022
who is the respondent No.11 is transposed as the supplemental
appellant No.2
5. PW1 to PW3 examined on the side of the petitioner
and CPW1 examined from the side of the respondent. Exts.A1 to
A7 and Exts.B1 to B8 were also marked. E.A.No.267/2009 has
been filed for issue of commission to locate the property in the
schedule of the Will and E.A.No.90/2009 was filed to forward the
disputed Will for expert opinion.
6. Learned Munsiff dismissed all the three E.As and
delivery was ordered in the E.P., against which A.S.No.124/2010
was filed. It has been concurrently found by the execution court
as well as the first appellate court that the petitioner failed to
prove that Ext.A1 is a genuine document and the petitioner failed
to prove her title on the basis of Ext.A1 Will over the petition
schedule property.
7. It has been contended by the petitioner that the
property covered by the final decree is comprised in Sy.No.305/1
of Panachikkad Village whereas the property covered by Ext.A1
Ex.S.A.No.10/2022
Will over which the claim is raised is comprised in Sy.No.302/4
and it is further contended that misinterpreting the property
covered by the Will wherein she resides is being treated as item
No.1 property described in the final decree, the decree holders
are seeking delivery of the property comprised in Sy.No.302/4 of
Panchikkad Village. It is also her contention that the courts
below have not gone into the question whether property covered
by Ext.A1 Will and property described in item No.1 of property
scheduled in decree is the one and the same. Hence her
contention is that the property covered by Ext.A1 Will is not the
subject matter of the final decree. It is also contended that after
the death of Mathew she was not impleaded as a legal
representative.
8. So, on evaluating the grounds raised in the
memorandum of appeal and the argument of the Learned counsel
it appears that her main contention is that petition schedule
property is comprised in Sy.No.302/4 whereas the decree
scheduled property is comprised in Sy.No.305/1 at Panachikkad
Ex.S.A.No.10/2022
Village and under the guise of the decree, they are
misinterpreting the schedule property as the decree schedule
property and the decree holders are seeking delivery of the
property.
9. The execution court can entertain objections to the
execution in respect of the subject matter of execution
proceedings and not in respect of any other property. So an
application filed under Order 21 Rule 97 CPC will not lie with
respect to a property which is not the subject matter of the
execution. The property described under Order XXI Rule 97 and
99 CPC is with respect to the property which is the subject
matter of the execution and not in respect of any other property.
It is relevant in this context to quote A.Chidambar v. Leela
[MANU/KA/0280/1989 : ILR 1989 KARNATAKA 3230]
wherein while dealing with Order XXI Rule 97 and 99 a learned
Single Judge of Karnataka High Court held that 'property' and
'suit property' referable therein are only subject matter of
execution and executing court cannot entertain objections to the
Ex.S.A.No.10/2022
execution in respect of any other property. Hence an application
filed under Order 21 Rule 99 which did not relate to the subject
matter of execution cannot be entertained by the executing
court.
10. In the present case, the petitioner contend that the
property covered by Ext.A1 Will is comprised in Sy.No.302/4 and
the property covered by the final decree is comprised in
Sy.No.305/1 of Panachikkavu Village. So, obviously the claimant
is attempting to establish that the petition schedule property is
not the decree schedule property. So, as per the settled position,
the petitioner is not entitled to file a petition under Order XXI
Rule 97 or 99 to establish her claim over the petition schedule
property. In such cases, remedy open to the petitioner is to file a
separate suit and to establish her claim with respect to the
property over which she independently raised claim. Moreover,
as has been found by the learned Munsiff as well as the first
appellate court, the petitioner claims right over the petition
schedule property based upon Ext.A1 Will alleged to have been
Ex.S.A.No.10/2022
executed by her father-in-law.
11. In O.S.No.609/1999 husband of the petitioner Mathew
was one of the contesting defendants and he claimed exclusive
title and possession over plaint item No.1 property. On his
death, his son, daughter and son-in-law were impleaded as legal
representatives and they claimed title over the property of the
deceased Mathew on the basis of gift deed executed by him in
their favour. The petitioner was not even impleaded as a legal
representative.
12. In the original suit her husband asserted his exclusive
title to the petition schedule property as the sole surviving legal
heir of father Mathen and his claim was rejected and a
preliminary decree was passed for partition allotting ¼ share to
Mathew, the husband of the petitioner and remaining ¾ to his
sisters. The appeal filed against the preliminary decree as
A.S.No.136/2003 was dismissed confirming the preliminary
decree passed by the trial court. Petitioner's son Punnose Mathew
was additional 6th respondent in O.S.No.609/1999 and he
Ex.S.A.No.10/2022
preferred R.S.A.No.608/2006 before this Court challenging
judgment and decree in A.S.No.136/2003 and that was dismissed
by this Court and the relevant paragraph has been quoted in the
order passed by the learned Subordinate Judge which reads thus:
"When the right and ownership of Mathen is there naturally the
plaintiffs, who are the children and claiming through him are
entitled to the property, as held by the courts below
......................... There is absolutely no question of law involved
in this case which warrants admission of this appeal." So, all
those factors would indicate that all along, the husband of the
petitioner and her children were contending that the disputed
property exclusively belong to Mathew who executed gift deed in
favour of his son, daughter and son-in-law. So, as rightly
concluded by the first appellate court in such contingency, it is
highly unbelievable that the Will executed by the deceased
Mathen in favour of the petitioner will be suppressed by her
husband, son, daughter and son-in-law. It would also go to show
that initially the husband, children including son-in-law were
Ex.S.A.No.10/2022
agitating an independent claim, on the basis of an alleged gift
deed executed by Mathew to claim exclusive right over the plaint
item No.1 property and when that attempt was failed, the
petitioner is claiming exclusive right over the property under the
guise of Ext.A1 Will alleged to have been executed on
05.06.1965. If at all such a Will was in existence, definitely she
would have raised her claim at the time when the suit was
pending and her husband and children were agitating their claim
based on an alleged gift deed. There is nothing in evidence to
show that the petitioner and her husband and children were at
loggerheads during the relevant time. So, the claim now put
forward by the petitioner on the basis of Ext.A1 Will is without
any bona fides.
13. It has also come out that during her evidence
petitioner deposed that she was aware of the Will from the very
beginning of its execution by deceased Mathen. So, failure on
her part to disclose about the existence of the Will for such a long
period is also highly suspicious and unbelievable. Though PW2
Ex.S.A.No.10/2022
and PW3 were examined to prove the execution of the Will their
evidence was not accepted by the courts below. Both courts also
concurrently found that genuineness of Ext.A1 Will has not been
proved. I do not find any reason to interfere with the said
concurrent finding of fact by the courts below. So, on an
evaluation of the entire facts and circumstances I am of the
considered view that there is no substantial question of law
emerges for consideration in this second appeal.
In the result, Ex.S.A is dismissed.
(sd/-) M.R.ANITHA, JUDGE
jsr
True Copy
P.S to Judge
