IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 13TH JUNE 2011 / 23RD JYAISHTA 1933 OP(C).No. 55 of 2011(O) ------------------------------- AGAINST THE ORDER IN IA NOS.908/2010 & 909/2010 IN OS.104/2009 of SUB COURT, THIRUVALLA .................... PETITIONER/PETITIONER/DEFENDANT ------------------------------------------------------- C.K.AMMINIKUTTY AMMA ALIAS AMMINI G.NAIR AGED 74 YEARS, W/O.LATE K.GOPALAKRISHNAN NAIR, MANOJ VILLA, KEEZHCHERIMEL, CHENGANNUR VILLAGE, CHENGANNUR TALUK, ALAPPUZHA DISTRICT. BY ADV. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.P.GOPINATH SRI.JOSON MANAVALAN RESPONDENT(S): COUNTER PETITIONER/PLAINTIFF ---------------------------------------------------------------------- K.RAMACHANDRAN NAIR, AGED 66 YEARS, S/O.KOCHUKUNJU NAIR, CHAKKALA KIZHEKKETHIL HOUSE, PARUMALA MURI, KADAPRA VILLAGE, PARUMALA POST, PIN-689 626, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT. ADV. SRI.PIRAPPANCODE V.S.SUDHIR FOR R-1 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 13/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OPC 55/2011 APPENDIX PETITIONER'S EXHIBITS : EXT.P1: COPY OF PLAINT IN O.S.NO.104/2009 DATED 16.7.2009 ON THE FILE OF THE SUBORDINATE JUDGE'S COURT, THIRUVALLA. EXT.P2: COPY OF THE WRITTEN STATEMENT DATED 15.11.2009 FILED BY THE PETITIONER DEFENDANT IN O.S.NO.104/2009. EXT.P3: COPY OF I.A.NO.909/2010 ALONG WITH AFFIDAVIT DATED 22.7.2010 FILED BY THE PETITIONER IN O.S.NO.104/2009. EXT.P4: COPY OF I.A.NO.908/2010 ALONG WITH AFFIDAVIT DATED 22.7.2010 FILED BY THE PETITIONER IN OS.NO.104/2009. EXT.P5: COPY OF OBJECTION DATED 11.8.2010 FILED BY THE RESPONDENT TO EXT.P4 APPLICATION IN O.S.NO.104/2009. EXT.P6: COPY OF THE ORDER DATED 12.10.2010 PASSED BY THE SUB COURT, THIRUVALLA IN EXT.P4 APPLICATION (i.e., I.A.NO.908/2010 IN O.S.NO.104/2009). EXT.P7: COPY OF THE ORDER DATED 12.10.2010 PASSED BY THE SUB COURT, THIRUVALLA IN EXT.P3 APPLICATION (i.e., I.A.NO.909/2010) IN O.S.NO.104/2009. RESPONDENT'S EXHIBITS : EXT.R1(a) : COPY OF THE PLAINT IN O.S.NO.198/2009. EXT.R1(b) : COPY OF THE WITNESS SCHEDULEDATED 27.5.2010. EXT.R1(c) : COPY OF THE WITNESS SCHEDULE DATED 23.7.2010. //TRUE COPY// P.A. TO JUDGE K.T.SANKARAN, J. --------------------------------- O.P.(C).No.55 of 2011 ---------------------------------- Dated this the 13th day of June, 2011 JUDGMENT The petitioner is the defendant in O.S.No.104 of 2009 on the file of the Sub Court, Thiruvalla. He is also the first defendant in O.S.No.198 of 2009, Munsiff's Court, Thiruvalla. Both these suits were filed by Ramachandran Nair, the respondent. 2. The necessary facts leading to the two suits are stated to be the following : The property involved in both the cases is the same. The said property belonged to P.K.Thankamma and her son Suresh Kumar. According to Amminikutty Amma, the petitioner, Thankamma executed a registered will No.287 of 1988, Sub Registry Office, Coimbatore in favour of her son Suresh Kumar. Thankamma and Suresh Kumar died. Suresh Kumar had O.P.(C) No.55/2011 2 executed a registered will in 2009 in favour of Amminikutty Amma, the petitioner. Thus Amminikutty claims the entire rights in the plaint schedule property on the basis of the aforesaid two wills. The case of Ramachandran Nair, the respondent, who is none other than the brother of the petitioner, is that Thankamma executed an unregistered will in the year 2006 in his favour. O.S.No.198 of 2009 was filed by Ramachandran Nair against his sister Amminikutty Amma, her children and son-in-law for a permanent prohibitory injunction. Ramachandran Nair also filed O.S.No.104 of 2009, Sub Court, Thiruvalla against the petitioner for a declaration that the plaintiff is the absolute owner of the property on the basis of the will allegedly executed by Thankamma in his favour in the year 2006. Thus, both parties are claiming rival title in respect of the same property. There are three wills. All the wills are to be proved. The unregistered will of 2006 on the basis of which Ramachandran Nair claims right was produced by him in O.S.No.198 of 2009, O.P.(C) No.55/2011 3 Munsiff's Court, Thiruvalla. 3. The petitioner filed I.A.No.908 of 2010 before the Sub Court, Thiruvalla in O.S.No.104 of 2009 directing Ramachandran Nair to produce the will before court. That application was filed under Rule 14 of Order 11 C.P.C. The court below dismissed that application as per the order dated 12th October, 2010 (Exhibit P6) on the ground that the will was produced in O.S.No.198 of 2009 and therefore the respondent cannot be said to be in possession of the will. 4. The petitioner also filed I.A.No.909 of 2010 in O.S.No.104 of 2009, Sub Court, Thiruvalla to send the disputed signature in the unregistered will for comparison of the signature of Thankamma with her signatures in the registered will of 1988 and also in the partition deed of 1961. The Sub Court dismissed the application as per Exhibit P7 order dated 12th October, 2010 on the ground that the O.P.(C) No.55/2011 4 document in which the disputed signature occurs was not before that court. Exhibits P6 and P7 are under challenge in this Original Petition. 5. It is necessary for the Sub Court to consider the genuineness or otherwise of the unregistered will of 2006. The case of the petitioner is that the said will is a fabricated document. She also contends that the signature of Thankamma was forged in that will. For a complete and effective disposal of the questions involved in O.S.No.104 of 2009, production of that will before court and comparison of the disputed signature of Thankamma with her admitted signature are essential. At the same time, the will is produced in O.S.No.198 of 2009, Munsiff's Court, Thiruvalla. The parties are substantially the same in O.S.Nos.104 of 2009 and 198 of 2009. The questions involved in both the cases are also the same. The evidence to be adduced in both the cases would also be substantially the same. To suit the general O.P.(C) No.55/2011 5 convenience of the parties and to avoid conflicting decisions, it would be ideal if both the suits are tried together by the same court. 6. In these circumstances, to a query made by the court, the learned counsel appearing for both sides submitted that they have no objection in transferring O.S.No.198 of 2009 pending before the Munsiff's Court, Thiruvalla to the Sub Court, Thiruvalla where O.S.No.104 of 2009 is pending. They also agreed for joint trial and disposal of the aforesaid two suits. This submission is recorded. 7. In view of the submission made by the counsel as aforesaid, it is necessary to set aside the orders dated 12th October, 2010 in I.A.Nos.908 of 2010 and 909 of 2010 in O.S.No.104 of 2009. Accordingly, those orders are set aside. O.S.No.198 of 2009, Munsiff's Court, Thiruvalla shall stand transferred to the Sub Court, Thiruvalla. The Sub Court, O.P.(C) No.55/2011 6 Thiruvalla shall jointly try and dispose of O.S.No.104 of 2009 and the transferred suit. The Sub Court, Thiruvalla shall consider I.A.Nos.908 of 2010 and 909 of 2010 afresh. The Original Petition is disposed of accordingly. K.T.SANKARAN JUDGE csl