IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 23RD NOVEMBER 2011 / 2ND AGRAHAYANA 1933 OP(C).No. 3812 of 2011(O) -------------------------------- OS.23/2004 of I ADDL.SUB COURT, KOZHIKODE .................... PETITIONER --------------- M.V.VENUGOPAL, AGED 62 YEARS, S/O.LATE VASUDEVAN, RESIDING AT SREELAKAM, ARANGIL DAMODARAN ROAD, NADAKAVU, CALICUT-673 011. BY ADVS. SRI.N.M.MADHU SMT.C.S.RAJANI RESPONDENT(S): --------------------- 1. RAJALAKSHMI RAJAN, AGED 64 YEARS, D/O.LATE VASUDEVAN, RESIDING AT CHETTIPARAMBU HOUSE, U.C.COLLEGE.P.O., PARUR ROAD, ALWAYE-683 102. 2. M.V.PRAKASH, AGED 60 YEARS, S/O.LATE VASUDEVAN, RESIDING AT 'LAKSHMI PRABHA', ARANGIL DAMODARAN ROAD, NADAKAVU, CALICUT-673 011. 3. M.V.DEVAPRASAD, AGED 58 YEARS, S/O.LATE VASUDEVAN, MADALATH HOUSE, ARANGIL DAMODARAN ROAD, NADAKAVU, CALICUT-673 011. 4. M.V.SREELATHA, AGED 56 YEARS, W/O.DR.MOHANRAJ, "GRENS", NEAR CHRISTIAN COLLEGE, CALICUT-673 001. 5. UMA DEVI NAMBIAR, AGED 54 YEARS, D/O.LATE U.K.SANKUNNI, HOUSE NO.571, IST MAIN ROAD, 3RD BLOCK, RAJMAHAL VILAS STATE II, BANGALORE-560 094. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs O.P.(C). NO. 3812/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S.23/2004 ON THE FILES OF THE HON'BLE IST ADDITIONAL SUB COURT, KOZHIKODE. P2: COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER AND RESPONDENTS TWP AND THREE. P3: COPY OF THE REPLICATION FILED BY THE FIRST RESPONDENT. P4: COPY OF THE AFFIDAVIT IN SUPPORT OF THE PETITION FILED AS I.A.NO.5725/2011. P5: COPY OF THE AFFIDAVIT IN SUPPORT OF THE PETITION FILED AS I.A.6340/2011. P6: COPY OF THE LETTER SUBMITTED BY THE WITNESS SUMMONED BY THE FIRST RESPONDENT BEFORE THE COURT BELOW. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.3812 of 2011 --------------------------------------- Dated this 23rd day of November, 2011 JUDGMENT First defendant in O.S.No.23 of 2004 of the Court of learned first Additional Sub Judge, Kozhikode is the petitioner seeking a direction for early disposal of Ext.P5, application before learned Sub Judge proceeded with the case further. 2. First respondent filed the suit for partition claiming that the suit properties allegedly belonged to the deceased father of petitioner, first respondent and others. According to the petitioner, the mother had executed a Will in his favour regarding her properties and the property she inherited from her husband. It is the case of petitioner that the present suit is only for partition of properties left behind by the father and not in relation to the properties of the mother and hence it was not necessary to go into the genuineness or otherwise of the Will in question. But in the course of evidence, first respondent wanted to challenge genuineness of the Will. Hence petitioner filed Ext.P5, application for an order that it is not necessary to consider genuineness or otherwise of the Will executed by the mother in the present suit. That application is pending. O.P(C).No.3812 of 2011 -: 2 :- 3. First respondent has appeared through counsel. According to the learned counsel, it is because it was submitted that Ext.P5, application could be disposed of along with the suit that no separate order was passed. It is also submitted by the learned counsel that it is in view of the said submission that first respondent did not prefer any objection to Ext.P5. Learned counsel requested that in case this Court directs learned Sub Judge to dispose of Ext.P5, application, first respondent may be permitted to file his objection to that application. 4. Since Ext.P5, application is pending and it concerns the question whether the Court is required to decide genuineness or otherwise of the Will in question, it is appropriate that learned Sub Judge disposed of Ext.P5, application before proceeding to record further evidence. Resultantly this original petition is disposed of as follows: (i) Learned first Additional Sub Judge, Kozhikode is directed to dispose of Ext.P5, application (I.A.No.6340 of 2011 in O.S.No.23 of 2004) before further proceeding with evidence, after giving first respondent and other contesting parties opportunity to prefer objection if any to the said application. (ii) In case witnesses cited by the first respondent to disprove the Will are present before O.P(C).No.3812 of 2011 -: 3 :- Court, learned Sub Judge may bind over those witnesses for their appearance on a convenient day after disposal of Ext.P5, application. (THOMAS P. JOSEPH, JUDGE) Sbna/-