IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 12TH JUNE 2008 / 22ND JYAISHTA 1930 WP(C).No. 5174 of 2008(N) ------------------------- PETITIONER: ------------ K.PREMA, W/O.LATE VIJAYAN, RESIDING AT THUNDATHIL HOUSE, ISHTIKAKALAM, KALADI ROAD, DESOM POST, ALUVA. BY ADV. SRI.S.V.BALAKRISHNA IYER (SR.) RESPONDENTS: ------------- 1. ARJUN, S/O.C.V.AJAYAKUMAR, MINOR AGED 12 YEARS, RESIDING AT SREEVALSAM, KARIPPODE, CHITTUR TALUK, PALAKKAD DISTRICT, REPRESENTED BY HIS NEXT FRIEND AND MATERNAL GRANDFATHER R.PANGUNNI, S/O.RAMAN, SREERAM NIVAS, SELVI NAGAR, VADAKKANTHARA, PALAKKAD. 2. GOWTHAM, S/O. DO., MINOR, AGED 10, REPRESENTED BY HIS GUARDIAN AND MOTHER GEETHA, W/O.AJAYKUMAR, SREEVALSAM, KARIPODE, CHITTUR TALUK, PALAKKAD. 3. VIJAYALAKSHMI, D/O. DO. MINOR AGED 7, REPRESENTED BY DO IN DO. DO. 4. C.V.SUBHASHINI, W/O.T.K.SHAJI, AGED 43, THUNDATHIL HOUSE ISHTIKAKALAM, KALADI ROAD, DESOM POST, ALUVA, ERNAKULAM DISTRICT. 5. AJAYKUMAR, S/O.C.T.VIJAYAN, SREEVALSAM KARIPODE P.O., PUDUNAGARAM VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.K.MOHANAKANNAN FOR R.1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) No.5174/2008 EXT.P1 DATED 26.7.2005, TRUE COPY OF THE JUDGMENT IN O.S.270 OF 2002, SUB COURT, PALAKKAD. EXT.P2 DATED 19.12.2005, TRUE COPY OF THE PLAINT IN O.S.NO.384 OF 2005, SUB COURT, PALAKKAD. EXT.P3 DATED 17.1.2008, TRUE COPY OF THE APPLICATION, I.A.NO.194/2008 IN O.S.NO.384/2005, SUB COURT, PALAKKAD. EXT.P4 DATED 29.1.2008, TRUE COPY OF THE ORDER IN I.A.194 OF 2008 IN O.S.384/2005, SUB COURT, PALAKKAD. //TRUE COPY// P.A. to Judge. M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.5174 of 2008 ------------------------------- Dated this the 12th June, 2008. J U D G M E N T 3rd defendant in O.S.No.384/2005, on the file of Sub Court, Palakkad, is the petitioner. First respondent is the plaintiff and other respondents are defendants. First respondent instituted the suit for partition of the plaint schedule property, contending that plaint schedule property originally belonged to Vijayan, husband of the petitioner and on his death, as per a registered Will executed on 27.3.2001, respondents 1 to 3 derived his right and it is liable to be partitioned. 5th respondent, the father of plaintiff and defendants 1 and 2, had earlier instituted O.S.No.270/2002 claiming partition of the very same property contending that plaint schedule property is not the self-acquisition of deceased Vijayan. In the suit, petitioner herein had resisted the claim contending that plaint schedule property is the self-acquired property of Vijayan and Vijayan executed registered Will No.1/2002, dated 13.1.2002, and, therefore, 5th respondent is not entitled to claim any share. A preliminary decree for partition was passed which is challenged in R.F.A.No.167/2006, now pending before W.P.(C) No.5174/2008 2 this Court. In this suit also, petitioner raised the very same contention based on the registered Will, dated 13.1.2002. Petitioner filed I.A.No.194/2008 in O.S.No.384/2005 for an order of stay of the suit under Section 10 of Code of Civil Procedure, till the disposal of RSA.No.167/2006. Under Ext.P4 order, learned Sub Judge dismissed the petition. It is challenged in this petition filed under Article 227 of the Constitution of India. 2. The learned senior counsel appearing for the petitioner and the learned counsel appearing for first respondent were heard. 3. The learned senior counsel for the petitioner pointed out that question whether Vijayan had executed a registered Will, dated 13.1.2002, is a matter which is to be decided in RFA.No.167/2006, and if that Will is upheld, then respondents 1 to 3 cannot claim any right under the registered Will, dated 27.3.2001, and, therefore, decision in RFA has a crucial effect on the decision to be taken in O.S.No.384/2005, and, therefore, trial court should have stayed the trial of the suit till the disposal of the first appeal pending before this Court. Relying on the decision of a learned Single Judge of W.P.(C) No.5174/2008 3 this Court in M.S.Balasubramanyan v. Sakthivel (1990 (2) KLJ 853), learned senior argued that even if the principles of Section 11 may not strictly apply, when the question to be settled in RFA.No.167/2006 has a direct baring on the decision in the suit, and though that judgment by itself as such is not binding, it would have persuasive value on the decision to be taken in O.S.No.384/2005, and so learned Sub Judge should have stayed the suit under Section 10 of Code of Civil Procedure. 4. In O.S.No.270/2002, neither first respondent- plaintiff, nor his brothers, respondents 2 and 3, are parties. The question whether Vijayan had executed registered Will, dated 27.3.2001, was not a matter that was raised or considered or decided in O.S.No.270/2002, or is to be settled in R.F.A.No.167/2006. First respondent is claiming a share in the plaint schedule property solely based on the registered Will No.113/2001. Therefore, the decision in O.S.No.270/2002 as such cannot be a ground for rejecting the claim. True, if it is to be found in that suit that Vijayan had subsequently executed another registered Will, then that would have a definite baring on the decision to be taken in O.S.No.384/2005. But so long as respondents 1 to 3 are not parties to O.S.No.270/2002, based on the W.P.(C) No.5174/2008 4 judgment in that suit or RFA.No.167/2006, claim of the first respondent cannot be decided. In such circumstances, I do not find any reason to interfere with Ext.P4 order. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE nj.