IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 5TH JULY 2011 / 14TH ASHADHA 1933 OP(C).No. 1693 of 2011(O) ------------------------------------- [C.M.A.NO.3/2011 OF THE ADDITIONAL DISTRICT COURT, KOZHIKODE, I.A. NO. 1868/2010 IN O.S. NO. 354/2010 OF THE ADDITIONAL MUNSIFF COURT-I, KOZHIKODE] .................... PETITOINERS: --------------------- 1. SAROJINI,AGED 65 YEARS,W/O.SREEDHARAN, THAIKANDATHIL HOUSE,KORANIVAYAL,EDAKKAD AMSOM AND DESOM,KOZHIKODE. 2. GIREESH,AGED 42 YEARS,S/O.SREEDHARAN THAIKANDATHIL HOUSE,KORANIVAYAL,EDAKKAD AMSOM AND DESOM,KOZHIKODE. 3. JAYANTH, AGED 40 YEARS,S/O.SREEDHARAN, THAIKANDATHIL HOUSE,KORANIVAYAL,EDAKKAD AMSOM AND DESOM,KOZHIKODE. BY ADVS. SRI.P.V.KUNHIKRISHNAN, SRI.HANSON.P.MATHEW. RESPONDENTS: ------------------------ 1. SREEMATHI,AGED 58 YEARS, D/O.KATTUNGAL RAMANKUTTY,ELATHUR AMSOM DESOM, KOZHIKODE TAULK-673 303. 2. PREMA,AGED 53 YEARS, D/O.KATTUNGAL RAMANKUTTY, ELATHUR AMSOM DESOM,KOZHIKODE TALUK-673 303. 3. SEETHA, AGED 50 YEARS, D/O.KATTUNGAL RAMANKUTTY, ELATHUR AMSOM DESOM,KOZHIKODE TALUK-673 303. 4. SHOBHA, AGED 48 YEARS, D/O.KATTUNGAL RAMANKUTTY, ELATHUR AMSOM DESOM,KOZHIKODE TALUK-673 303. O.P.(C).NO.1693/2011-O: 5. PRABHAKARAN, AGED 44 YEARS,FISHERMAN, S/O.KATTUNGAL RAMANKUTTY, ELATHUR AMSOM DESOM,KOZHIKODE TALUK-673 303. 6. DINESHAN, AGED 43 YEARS,FISHERMAN, S/O.KATTUNGAL RAMANKUTTY, ELATHUR AMSOM DESOM,KOZHIKODE TALUK-673 303. 7. JAYAN, AGED 42 YEARS,FISHERMAN, S/O.KATTUNGAL RAMANKUTTY, ELATHUR AMSOM DESOM,KOZHIKODE TALUK-673 303. 8. KATTUNGAL PURUSHOTHAMAN,AGED 59 YEARS, PENSIONER,S/O.KATTUNGAL RAMANKUTTY, ELATHUR AMSOM DESOM,KOZHIKODE TALUK-673 303. 9. THAYYILA KANDATHIL RAMANKUTTY, AGED 83 YEARS, S/O.CHANDU,THAYYILAKANDATHIL HOUSE,PALAKKADA, PUTHIYANGADI AMSOM DESOM,P.O.PUTHIYANGADI, KOZHIKODE TALUK-673 021. 10. THAYYILA KANDATHIL MALU, AGED 73 YEARS, D/O.CHANDU,NEAR RUBBER BOARD OFFICE, PULIYANTA CHUVADU BUS STOP,KUMARASAMI ROAD, KOZHIKODE TALUK-673 611. 11. KARTIYANI, AGED 70 YEARS,D/O.CHANDU, THANNIKKA VAYAL, NEAR THAYATTU AYYAPPA TEMPLE, WEST HILL, KOZHIKODE TALUK, (MOTHER OF PRAKASAN) – 673 005. 12. SULOCHANA, AGED 43 YEARS, D/O.CHANDU, THAYYILAKANDATHIL HOUSE,PALAKKADA, PUTHIYANGADI AMSOM DESOM, P.O.PUTHIYANGADI, KOZHIKODE TALUK-673 021. 13. KRISHNANKUTTY, AGED 40 YEARS, THAYYILAKANDATHIL CHOYILKUTTY,PALAKKADA, PUTHIYANGADI AMSOM DESOM, P.O.PUTHIYANGADI, KOZHIKODE TALUK-673 021. 14. SUNITHA, AGED 45 YEARS, D/O.THAYYILAKANDATHIL CHOYIKUTTY, PALAKKADA,, PUTHIYANGADI AMSOM DESOM, P.O.PUTHIYANGADI, KOZHIKODE TALUK-673 021. 15. RATNAKUMAR, AGED 33 YEARS, SALESMAN, S/O.THAYYILAKANDATHIL CHOYIKUTTY, PALAKKADA, PUTHIYANGADI AMSOM DESOM, P.O.PUHTIYANGADI KOZHIKOE TALUK-673 021. O.P.(C).NO.1693/2011-O: 16. BALAN, AGED 36 YEARS S.O.THAYYILAKANDATHIL CHOYIKUTTY, PALAKKADA, PUTHIYANGADI AMSOM DESOM, P.O.PUTHIYANGADI. KOZHIKODE TALUK-673 021. 17. SUBHAJA, AGED 35YEARS, W/O.EDOTH PARAMBATH BABU, MOKAVOOR AMSOM DESOM,KOZHIKODE TALUK-673 021. 18. DRISHYA, AGED 19 YEARS, D/O.EDOTH PARAMBATH BABU, MOKAVOOR AMSOM DESOM,KOZHIKODE TALUK-673 021. 19. DRIPIN LAL, AGED 18 YEARS, S/O.EDOTH PARAMBATH BABU, MOKAVOOR AMSOM DESOM,KOZHIKODE TALUK-673 021. 20. SAVITHRI,AGED 50 YEARS, W/O.LATE NARAYANAN, THAYYILAKANDATHIL HOUSE, PUTHIYANGADI AMSOM DEOSM, KOZHIKODE TALUK-673 021. 21. DHARMARAJAN, AGED 35 YEARS, S/O.LATE NARAYANAN, THAYYILAKANDATHIL HOUSE, PUTHIYANGADI AMSOM DEOSM, KOZHIKODE TALUK-673 021. 22. SUJALA KUMARI, AGED 33 YEARS,D/O.LATE NARAYANAN, THAYYILAKANDATHIL HOUSE,PUTHIYANGADI AMSOM DESOM, KOZHIKODE TALUK-673 021. 23. AJITHAKUMARI,AGED 31 YEARS, D/O.LATE NARAYANAN, THAYYILAKANDATHIL HOUSE,PUTHIYANGADI AMSOM DESOM, KOZHIKODE TALUK-673 021. 24. BABU RAJ, AGED 29 YEARS, S/O.LATE NARAYANAN, THAYYILAKANDATHIL HOUSE,PUTHIYANGADI AMSOM DESOM, KOZHIKODE TALUK-673 021. BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05/07/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C).NO.1693/2011-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PLAINT IN O.S. NO. 354/2010 ON THE FILE OF THE ADDITIONAL MUNSIFF-1, KOZHIKODE DTD. 31/05/2010. EXT.P.2: COPY OF THE I.A. 1868/2010 IN O.S. NO. 354/2010 ON THE FILE OF THE ADDITIONAL MUNSIFF-1, KOZHIKODE DTD. 31/05/2010. EXT.P.3: COPY OF THE COUNTER FILED ON BEHALF OF RESPONDENTS 1 TO 8 DTD. 05/07/2010. EXT.P.4: COPY OF THE COUNTER FILED ON BEHALF OF RESPONDENTS 12 TO 16 DTD. 21/07/2010. EXT.P.5: COPY OF THE COUNTER FILED BY 10TH RESPONDENT DTD. 27/07/2010. EXT.P.6: COPY OF THE ORDER DTD. 04/12/2010 IN I.A. 1868/2010 IN O.S. 354/2010 ON THE FILE OF ADDITIONAL MUNSIFF-I, KOZHIKODE. EXT.P.7: COPY OF THE JUDGMENT DTD. 05/03/2011 IN C.M.A. NO. 3/2011. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.1693 of 2011 --------------------------------------- Dated this 05th day of July, 2011 JUDGMENT Plaintiffs in O.S.No.354 of 2010 of the Court of learned Additional Munsiff-I, Kozhikode are the petitioners before me challenging Exts.P6 and P7, order of learned Munsiff on I.A.No.1868 of 2010 and judgment of learned Additional District Judge, Kozhikode in C.M.A.No.3 of 2011. Petitioners sued respondents for partition of properties claiming that the decree for partition in O.S.No.477 of 1992 of the Court of learned Principal Munsiff-I, Kozhikode is not binding on them since they were not parties to the said suit and that they being legal heirs of Chanthu are entitled to a share in the property. Petitioners claimed that they are Thiyyas of Malabar following Mithakshara Law of Inheritance. According to them, Chanthu died before commencement of the Hindu Succession Act (for short, "the Act”) and hence they are entitled to a share in the suit property. Petitioners filed I.A.No.1868 of 2010 for an order of temporary injunction to restrain respondents executing the decree in O.S.No.477 of 1992. The contesting respondents while resisting the application contended that petitioners have no right in the O.P(C).No.1693 of 2011 -: 2 :- suit property and at any rate, Chanthu having died only in the year 1972, petitioners have only a share in the 1/7th share. Courts below found that there is no material on record to show that Chanthu died before commencement of the Act and refused to grant injunction as prayed for. The said order and judgment are under challenge. Learned counsel has addressed arguments that the findings entered by the courts below are erroneous. 2. It is ultimately for the trial court to decide whether petitioners are entitled to claim any right in the property and whether their right is confined to the 1/7th share of Choyikutty as the courts below have observed. It is not necessary to enter into a decision on the disputed question at the interlocutory stage. 3. So far as execution of the decree in O.S.No.477 of 1992 is concerned, contesting respondents have obtained a decree and so far as there is no challenge to the said decree on the ground of fraud, execution of the decree could not be prevented. If ultimately petitioners succeed in their claim in the suit necessarily they should get a decree for partition. In the circumstances, I do not find reason to interfere with the ultimate order refusing to grant temporary injunction as prayed for. But I make it clear that whatever findings and observations the courts O.P(C).No.1693 of 2011 -: 3 :- below have made will be confined to the disposal of I.A.No.1868 of 2010 and that trial court shall dispose of the suit untrammelled by any finding or observation contained therein. With the above direction and observation this original petition is closed. (THOMAS P JOSEPH, JUDGE) Sbna/-