STELLA PAUL Vs. K F PETER

JUDGEMENT

(1.) This appeal had been filed after considerable delay. But after hearing the respondents, being a suit for partition, the delay had been condoned. We have heard the respondents as well.

(2.) The appellants are the legal heirs of the first defendant who is no more. The suit had been filed for partition. A preliminary decree had been passed on 15.11.2002. However, quite some time thereafter, the defendants had come across, according to them, a will the presence of which would have altered the situation to their advantage. The preliminary decree as on today if permitted to remain, might go against the recitals of the registered will, it is submitted and the matter has to be subjected to a fresh consideration by the court below.

(3.) On behalf of the respondents, however, an objection had been raised that against the preliminary decree, I.A.No.504/2003 had been filed on 24.3.2003, but it was rejected because of non-prosecution. However, since the preliminary decree is subjected to challenge, we do not think taking notice of the totality of circumstances, this should bind our hands for considering the matter on merit.