IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 4TH NOVEMBER 2011 / 13TH KARTHIKA 1933 FAO.No. 318 of 2011() --------------------- AGAINST THE ORDER DATED 15/10/2011 IN IA 1670/2011 IN AS.88/2011 of SUB COURT, PALA .................... APPELLANT/RESPONDENT/DEFENDANT --------------------------------------------------------- PROF.T.J.JOSEPH,S/O.JOSEPH, RESIDING AT THENGANAKUNNEL HOUSE, NEAR NIRMALA COLLEGE, MOOVATTUPUZHA. BY ADV. SRI.SAJU.S.A SRI.JAMSHEED HAFIZ SMT.P.A.SHEEJA RESPONDENT(S): PLAINTIFF/PLAINTIFF --------------------------------------------------------- SMT.GRACY,W/O.MATHEW, THENGANAKUNNEL HOUSE,THIDANADU KARA, KONDOOR VILLAGE,NOW RESIDING AT ATTARAMACKAL HOUSE PALAMBRA PO,PALAMBRA KARA,EDAKKUNNAM VILLAGE, PIN 686 518. SRI.M J THOMAS THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 04/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------- FAO No.318 of 2011 ------------------------------------- Dated this the 4th day of November 2011 Judgment This F.A.O. is directed against the order dated 15.10.2011 on IA No.1670/11 in AS No.88/11 whereby the appellant was restrained by a prohibitory order of injunction from committing waste and from taking income from the suit property. 2. One Mr.Mathew Joseph obtained the suit properties – one item of property by way of settlement and another item as a gift deed from his parents. Admittedly, the plaintiff in the suit was married to Mathew Joseph, but the relationship, it is stated, did not last for long. However, a son was born to them by name Georgekutty. Suffice is to say that it is claimed that Mathew Joseph married again a lady by name Mary and a female child was born to them by name Joseena. FAO 318/11 2 3. Mathew Joseph had executed a Will whereby he bequeathed 25 cents to his son Georgekutty and another 25 cents to his daughter Joseena. As regards the 1.25 acres was concerned, the stipulation was that since his mother was living in the house situate in that property, the person who looks after his mother will be entitled to take the property. 4. The plaintiff seems to have laid a suit for injunction against the defendant claiming that she is entitled to the suit property on the death of her husband. The defendant entered appearance and contested the suit. Ultimately, the suit was dismissed. The plaintiff carried the matter in appeal as AS No.88/11 before the Sub Court, Pala. Before the lower appellate court, IA No.1670/11 was filed by the appellant, seeking to restrain the defendant from committing any waste in the 1.25 acres of land and taking income from the 50 cents of land which stand bequeathed to the children. The lower appellate court granted an injunction order restraining the appellant herein FAO 318/11 3 who is the defendant in the suit from committing waste in the 1.25 acres of property where there is a residential house and also taking income from the 50 cents of land which stand bequeathed to the children namely Georgekutty and Joseena. At the time when the matter came up for admission, Mr.M.J.Thomas, appearing for the respondent on a caveat lodged, contended that no particular injury is caused to the appellant by the present order passed. It only seeks to protect the subject matter of the lis. 5. The contention taken by the appellant is that as things now stand, the plaintiff in the suit stands non- suited in a suit for injunction and that indicates that she has no possession over the property. It is also pointed out that even going by the Will, she stands disinherited and there is no claim for her that she is looking after the mother of Mathew Joseph. 6. The learned counsel for the respondent, on the other hand, pointed out that the respondent had a claim FAO 318/11 4 that the mother was being looked after by the plaintiff. Anyhow, it is not a matter which needs adjudication at this point of time. 7. All that the lower court has done is to restrain the respondent before the lower appellate court from committing waste in the plaint schedule property to which no one can have any objection. That part of the order does not call for any interference even though it is very strongly objected to by the learned counsel for the appellant on the ground that the plaintiff having been in not possession, she is not entitled to any reliefs at the interlocutory stage. But, as regards the 50 cants which stands bequeathed to the children, the learned counsel pointed out that the plaintiff has no right over the property and she is also a stranger to that property and an interim order entitling her to take income from the property could not have been granted. 8. The learned counsel for the respondent pointed out that 25 cents out of 50 cents was bequeathed FAO 318/11 5 to her son and he is a minor. 9. Except for the assertion made, there is nothing to show that the suit is laid on behalf of the minor son who gets 25 cents by virtue of the Will. The suit having been dismissed, as things now stand, it has been taken that the plaintiff has no possession over the suit property. As rightly pointed out by the learned counsel for the appellant, if the Will is to be given effect to, the respondent can also have no right over the 50 cents of land also. One fails to understand how the appellant could have been allowed to take income from a property over which she may not have any claim if the Will is upheld as done by the trial court. Therefore, it is felt that the only objection the appellant can have is regarding that portion of the order which enables the appellant to take income from the 50 cents of land. The grievance seems to be fully justified. In the result, while upholding the order of the court below, that portion of the order, which enables the appellant to take income from the 50 cents of property FAO 318/11 6 comprised in RS No.380/9 of Kondoor Village is set aside. The lower appellate court may make every endeavour to dispose of the appeal as expeditiously as possible, at any rate, within six months from the date of receipt of a copy of this order. It is clarified that this order will not preclude the legatees under the Will to stake their claim for taking income from the suit property. P.Bhavadasan, Judge sta FAO 318/11 7