SAROJINI Vs. L.S. JAYA

JUDGEMENT

(1.) THE appellant herein was the petitioner before the Family Court in OP No. 530/2005, which was filed seeking a decree of declaration to the effect that the petitioner is the legally wedded wife of deceased Sri. Sathyaraja Panicker and that the petitioner and her children alone are the persons entitled to inherit properties belonging to the deceased and that no other person have any right or authority over the properties which are included in the schedule to the petition filed before the Family Court. Consequently, the petitioner also prayed a permanent prohibitory injunction restraining the respondent or any other person claiming under her from tresspassing into the scheduled property and buildings situated therein and from committing any waste therein and from alienating the same and from executing any documents with respect to the same and from changing its present lie and nature.

(2.) THE respondents herein are the children of Smt. L.K. Leela who was the counter petitioner before the Family Court in OP No. 530/2005. She had resisted the petition contending that she is the legally wedded wife of Sri. Sathyaraja Panicker, having 4 children born out of the wedlock. It was also contended that she is the family pensioner of the deceased Sathyaraja Panicker, who was an employee of KSRTC. The respondent contended that, she along with the 4 daughters alone are the legal heirs entitled to inherit estate of deceased Sri. Sathyaraja Panicker. It was also contended that the deceased had executed a gift deed by which the schedule property was transferred in favour of the daughters and a partition was already effected by meets and bounds with respect to the property gifted. The respondent had put forth a counter claim before the Family court seeking a decree to evict the petitioner from the house situated in the schedule property. The petitioner failed to submit any objections to the counter claim.

(3.) THE appellant/petitioner filed two distinct interim applications. One seeking restoration of OP No. 530/2005 and seeking to set aside the ex parte decree in the counter claim and another seeking for condonation of delay in filing the application. Both the above interim applications were disposed of by the Family Court through order dated 20 -10 -2004, which is impugned in this appeal. The present respondents were impleaded in the interim applications since the original respondent died during pendency. The Family Court found there was delay of 1047 days in filing the application for restoring the OP which is dismissed for default as early as on 01 -06 -2009. The appellant contended before the Family Court that she was suffering from rheumatic fever and arthritis since the year 2009 onwards and she could not appear on court on 01 -06 -2009, on the date on which date she was set ex parte. It is specifically pleaded that there was no willful negligence or latches on her part in the non -appearance. The respondents resisted the application contending that there is no sufficient cause for non -appearance and that the grounds stated was without any bonafides. Inter alia it was contended that there was no marriage between the appellant and the deceased Sri. Sathyaraja Panicker and that they never lived as husband and wife.