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Present :(Name of the Judge) I Additional Sub Judge
Saturday. The 17th day of January 2009/27th Pousha.1930
O.S.No .910/2007
Plaintiff:Thomas George ,aged 59 years.S/o Late N.T George,
Residing at Ettuparayil House
Near Nirmala College ,Muvattupuzha Village
Muvattupuzha Taluk

By Adv.M/s. K.S. Baiju,N.Sudha,K.S.Gopi, K.K Vinod



Mrs. Kathrikutty George, W/o Late N.T George

Ettuparayil House Kannarath Road, Mamangalam
Palarivattom , Kochi 25.


Mrs .Sheena George, D/o Late N.T George

-do- -do-


V.M Thomas, aged 63 years , S/o Mathew

residing at Vadakkekalam House
Judge Muuku ,Thrikkakkara
Ernakulam District

D1 and D2 by Adv. T Jayakrishnan

D3 exparte.

This suit having came up for hearing before me on 13.1.09 and the court on 17.1.09 delivered
the following:-

Suit for money.
The averment in the plaint can be summarized as follows:Plaintiff and the second defendant are the children of first defendant through N.T George,
who died on 13.2.04. N.T George executed will deed on 28.10.01 and deposited to the
office of District Registrar. After death of George the will deed got registered as document
No.98/04 in the Sub Registry at Ernakulam.Clause 19 of the will deed recites the manner in
which the bank accounts ,shares in various companies F.D receipts are to be dealt with.Though
the will ded stipulates the payment of amount ,it has not done the executors of the will.Now it
is learnt that at the instigation of second defendant first defendant realized the entire amount
from bank Account against the terms and conditions in the will deed.First defendant is about 80
years old and she is not in a position to take any decision.The activitiesof he fist defendant is
under the undue influence of second defendant only.The amount received from the bank was
misappropriated by second defendant.Thus as per the statement refered in para No .4of the
plaint,an amount of Rs14.50 lakhs is due to legatees.Out of the said amount Rs.1,22,952/-is due
to the plaintiff.Defendants have no manner of right to utilisethe amount against the stipulation
in will deed.Hence seeks for recovery of the amountfrom defendants with interest
@12%.Plaintiff filed O.S. 108/07 before subcourt,Ottappalam against defendants who have
violated clause 13(a) of the will deed.The cause of action of the suit arose on 12.6.07,when the
plaintiff came to know that the entire amount has withdrawn and misappropriated and
everyday subsequently at Edappally south village with in the jurisdiction of this court

2. First and second defendant separately filed written statement admitting the relation ship
of parties, excecution of will deed and letters of administration. But the claim made in the suit is
not sustainable.The testator had no right to bequeath the amount in bank accounts in joint
name.The said rental in willdeed is therefore not binding up on the defendants and the
benificieries are not entitled to that benefit also.The allegation that 2nd defendant influenced
the defendant to withdraw the amount from bank is not correct.Neither the second defendant
nor any children instigated the first defendant.There is no misappropriation,fraud or coercion as
stated.The statement of amount averred and the proportion of which the plaintiff claimed in the
plaint are only an imagination.Plaintiff has already instituted O.S.No108/07 alleging violation of
the terms of the will deed.He ought have been sought the relief claimed herein also in that
suit.Since he has not included such a claim it can be treated as waived and the suit in respect
there of is not maintainable under order II Rule 2 of CPC.The first defendant had included the
name of her husband in the bank records in which he cannot claim any right. So the plaintiff is
not entitled for claim
3 . On the above contentions the following issues were settled:1. Is the suit maintainable under order II Rule 9 of CPC?
2. Is the plaintiff entitled to realize the plaint amount from defendants
as prayed for?
3. Reliefs and costs.


Evidence consists of the oral evidence of the plaintiff alone, examined as PW1 with
documentaryevidence Ext.A1 to A6.No evidence for defendants

5. Issue No 1:- It is admitted that the plaintiff has instituted O.S..108/07 in Sub Court Ottappalam
seeking relief against some of the stipulations in the will.The present suit is alsofor the relief of
violation of clause19 of the will deed, which happened prior to the institution of suit in
Ottappalam Sub court. So if he wanted to seek relief of that matter he ought to have been
included the claim also in that suit without resorting to institute different suit for violation of
each clause in the will deed.The plaintiff who has not included the said claim is deemed to have
been waived that right.Hence suit for the present claim is not maintainable under order II Rule2
of CPC
6. Issue No.2 :- The claim of the plaintiff is based on clause 19 of Ext. A1 will deed. Clause 19
infact stipulates about the creation of trust for the benefit of children,grant children and his
legal descedents.Will deed itself refers that the bank account was in the joint name of the wife
of the testator.First defendant contended that it was an independent account,but the name of
her husband was included in the bank account,on her desire which would not give any right to
him to dispose of the proceeds in the bank account.The burden is on the plaintiff toprove that
theamount under the bank were that of the testator.But the plaintiff has not produced any
document showing that the accounts werethat of the testator.The best evidence to prove such a
fact is the bank records itself which has not brought in evidence

7. Infact Clause 19 of the will deed does not permit to divide the amount among the legal heirs as
stated by the plaintiff.Clause 19 provided to utilize that amount for the welfare of all children
,grand children including the legal decendents keeping the amount deposited in the does
not permit the executors of will deed to withdraw the amount or divide among
that amount also claim of the plaintiff is not sustainable.

8. Plaintiff doesnot know what was the total amount under the bank deposit refered in Clause
19.The statement of account of the bank showingthe particularsof the amount are not
available.It also proves that the claim of the plaintiff is only imagination and not based on any
document.Therefore I hold that plaintiff is not entitled to realize the amount from defendants
In the result, suit is dismissed with cost of the defendants
I Addl.Sub Judge
Plaintiffs exhibit:Defendents Exhibit:Plaintiff Witness:Defendants Witness:-

A1,A2 ,A3,A4,A5,A6
PW1- (Name)
I Addl. Sub Judge.


Name of applicant:- Adv.Jayakrishnan
Date of Judgement:-17-03-09
Date of prodn of stamp paper:Date of production of addl. Stamp paper