IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 27TH JULY 2011 / 5TH SRAVANA 1933 WP(C).No. 16397 of 2010(O) ---------------------------------------- CMA.NO. 15/2007 of SUB COURT, HOSDURG OS.NO.62/2007 of MUNSIFF COURT, HOSDURG .................... PETITIONER(S): ------------------------ KODAMBALATH AMBADY, AGED 78 YEARS, S/O. LATE VALIYA VEETTIL AMBADY, RESIDING AT KOYAMBURAM, IN NEELESWARAM VILLAGE, HOSDURG TALUK, KASARGOD DIST. BY ADV. SRI.SURESH KUMAR KODOTH RESPONDENT(S): --------------------------- KOMBANTE VALAPPIL KAMALA, AGED 43 YEARS D/O. AMBADY, RESIDING AT KURUNTHUR, PADNEKAD POST, KANHANGAD VILLAGE, HOSDURG TALUK, KASARGOD DIST. BY ADV. SRI.M.SASINDRAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.16397/2010 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE ORDER DATED 2/4/2007 IN I.A.NO.902/2007 P2 COPY OF THE JUDGEMENT/ORDER DATED 23/3/2010 IN CMA.15/2007 OF THE SUBORDINATE JUDGE'S COURT, HOSDURG. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.S.TO.JUDGE sts THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.16397 of 2010 -------------------------------------- Dated this the 27th day of July, 2011. JUDGMENT Respondent is the daughter of petitioner and one Patty. Respondent filed O.S.No.62 of 2007 before learned Munsiff, Hosdurg for a decree for prohibitory injunction against petitioner alienating the suit properties - item I being 18 cents and item II, five cents. Respondent based her claim on a registered Will dated 03.04.2003 executed by petitioner and her mother. She claimed that as per the said Will, on the death of the mother on 06.11.2003 the entire suit property devolved on her with petitioner having a life-interest over it. Alleging that petitioner attempted to transfer the entire property, she filed the suit. Along with suit respondent filed I.A.No.902 of 2007 for an order of temporary injunction. Application was opposed by the petitioner contending that the Will in question is a mutual Will as per which on the death of his wife (mother of the respondent) the entire property stood bequeathed to him and hence he is the absolute owner in possession entitled to deal with the same as such. Learned Munsiff found that the claim of respondent should be confined to half of 18 cents described in item I of plaint schedule and granted injunction accordingly. Petitioner, aggrieved by the said order challenged it in C.M.A.No.15 of 2007. Learned Sub Judge not only confirmed the order of learned Munsiff but also granted injunction in favour of the respondent in respect of the entire suit properties, according to the WP(C)No.16397/2010 2 learned counsel for petitioner without any appeal or cross objection if, that course is available to the respondent. Order of learned Munsiff and judgment of the learned Sub Judge are under challenge in this proceeding. 2. Learned counsel for petitioner has referred to me the Will in question to contend that it is a mutual Will. Learned counsel for petitioner contended that as per the recital in the Will properties are to be enjoyed by the testators until their death and if on their death any property remained, that alone would go to the respondent. That recital according to the learned counsel indicated that the Will is mutual and not as found by the courts below. It is contended that in view of that, what is given to the respondent is only any property that remained after death of both the testators which indicated that petitioner is entitled to dispose of the property including that of his wife, Patty during his life time. Learned counsel for respondents supports the finding of the court below that the Will is joint Will and hence petitioner cannot lay hands on the property belonging to the deceased mother of respondent. Learned counsel contended that petitioner has only a life estate over the property. 3. The crucial question that the trial court has to decide in the suit is whether the Will is joint or mutual. Decision in the suit will depend upon the answer to the said question. In view of that, it was not proper for the courts below to have entered a finding regarding nature of the Will while considering the application for temporary injunction. Finding regarding nature of Will should have been relegated to the trial stage. In view of that I am not inclined WP(C)No.16397/2010 3 to enter any finding as to the nature of the Will, whether it is mutual or joint in this proceeding. 4. The next question is whether injunction as prayed for is to be granted. Trial court on a prima facie consideration of the materials on record found that of item I, 18 cents, which admittedly belonged to the petitioner and his wife jointly, respondent should get one half in view of Will in question. Trial court also found that so far as item II, five cents, is concerned, respondent cannot lay hands on it. Appellate court on the other hand without any challenge to the order of the trial court by way of C.M.Appeal or cross objection (if that is permissible) has extended the order of injunction to the entire suit property which having regard to the circumstances I am not inclined to uphold. Having heard counsel on both sides and considered the relevant circumstances it appears to me that appropriate course is to restore the order passed by learned Munsiff on I.A.No.902 of 2007. I must bear in mind that if at all respondent is able to establish her right over the entire suit property as she claims, any transfer that petitioner might make in the meantime will be subject to the result of the suit in view of Section 52 of the Transfer of Property Act. Resultantly this Writ Petition is allowed in part in the following lines: i. Judgment of learned Sub Judge, Hosdurg in C.M.A.No.15 of 2007 to the extent it related to the suit properties other than the half share in item I, 18 cents is set aside. ii. Order of the learned Munsiff on I.A.No.902 of 2007 in O.S.No.62 of 2007 granting injunction in favour of respondent regarding half share in item I, WP(C)No.16397/2010 4 18 cents is confirmed. iii. It is made clear that transfer of properties scheduled in the plaint (other than the one half share in item I) if made by petitioner during pendency of suit will be subject to the result of the suit in view of Section 52 of the Transfer of Property Act. iv. Learned Munsiff is directed to dispose of the suit untrammeled by the findings/observations contained in the order on I.A.No.902 of 2007 and judgment in C.M.A.No.15 of 2007 regarding the nature and character of the Will. v. It is open to both parties or either of them to request learned Munsiff for expeditious disposal of the suit and if any such request is made learned Munsiff shall consider the same and pass appropriate orders. vi. In case parties are desirous a settlement of the dispute since they are the father and daughter, learned Munsiff may try for an amicable settlement of the dispute by referring the case to the Adalath of that station. THOMAS P.JOSEPH, Judge. cks