E MADHAVI AMMA Vs. E INDUSEKHARAN

JUDGEMENT

(1.) C.M.P. No. 4069 of 1992 is only an application for amending C.M.P. No. 1318 of 1990 by including the names of the legal representatives sought to be impleaded in CMP No. 1317 of 1990 in the application C.M.P. No. 1318 of 1990 for condoning the delay as against them. It is stated that due to an inadvertent omission their names were . not shown in C.M.P. No. 1318 of 1990. There is no reason not to accept the said submission and therefore C.M.P. No. 4069 of 1992 is only to be allowed. We allow that application.

(2.) An application for probate was filed by the first respondent in the above appeal under S.276 of the Indian Succession Act in respect of a will said to have been executed by one Parameswara Menon under which he was appointed the Executor. A caveat was filed by the third defendant in the proceeding and objections were filed by defendants 4 and 5 as well disputing the genuineness and the due execution of the will. The proceedings thus became contentious proceedings within the meaning of R.26 of the Rules framed by the High Court of Kerala under the Indian Succession Act. The application was therefore converted into a suit, O.S. 12 of 1983 on the file of the District Court, Ernakulam and tried as such. By judgment dated 30-1-1986 the 1st Additional District Judge, Ernakulam granted probate to the first respondent herein, in terms of the Act. Being aggrieved by the said decision defendants 4and 5 in the suit filed the above appeal. Defendant No. 4 Appellant No. 1, having died, his legal representatives have been impleaded as Additional Appellants 3 to 8 in the appeal.

(3.) One E. Parukutty Amma, who was one of the legatees under the will was the first defendant in the suit. When the appeal was filed by defendants 4 and 5 in the suit challenging the decision of the Trial Court, the first defendant Parukutty Amma was omitted to be impleaded in the appeal. It appears that this fact of omission was discovered only when it was pointed out by counsel for the first respondent plaintiff when the appeal came up for hearing. For, this is what the first respondent himself has stated in his counter affidavit to C.M.P. No. 1318 of 1990: