K K THANKAPPAN Vs. K S JAYAN

JUDGEMENT

(1.) 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 Munsiffs 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 out standings to be collected from the debtors of Majeendraji. Plaint C schedule are items of movables which, according to the plaintiffs, belong to Majeendran and Omana together which was inherited by Omana. It is averred that the lorries and autorickshaws described in plaint C schedule are in the possession of the 7th respondent. Plaint D schedule items are stated to be the debts left by Majeendran and Omana as far as they are known to the plaintiffs. It is further alleged that there are heavy debts payable by Majeendran and Omana and there are also assets left by them. It is further averred that the plaintiffs and defendants 1 to 3 are the sole legatees and sharers of the properties and the plaintiffs are entitled to 3 out of 6 shares. It is further alleged that the sharers are entitled to get their share after the discharge of the debt due from the estate. It is averred that since some of the items kept in items 1 and 2 in plaint A schedule are attached in some suits filed by the creditors, it has become impossible to effect any partition or to discharge the debts. It is necessary to ascertain and collect the movables and immovables of the deceased and also binding debts. It is averred that it may be necessary to sell certain properties through Court to discharge the binding debts. According to the plaintiffs, it is necessary to appoint a Receiver to take steps to realise the amounts due to deceased Majeendran and only on ascertainment and collection of the debts, there can be the distribution of the residue among the legatees. For that purpose, it was alleged that a suit for administration of estate by Court has become necessary. Hence, the suit for a decree of administration of the estate left by deceased K. K. Majeendran and T. K. Omana for ascertainment and collection of the assets, realisation of the out standings, discharge of the debts and for distribution of the residue among the legatees and sharers of deceased T. K. Omana.