IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 14TH JULY 2011 / 23RD ASHADHA 1933 OP(C).No. 2249 of 2011(O) -------------------------------------- OS.NO. 140/2010 of SUB COURT, PERUMBAVOOR .................... PETITIONER --------------------- 1. BABY, AGED 58 YEARS, S/O.KURIAKOSE,KANNADAN HOUSE,PANIYELY KARA, KOMBANAD VILLAGE-PIN-683 542 2. SUNNY,AGED 51 YEARS, S/O.KURIAKOSE,KANNADAN HOUSE,PANIYELY KARA, KOMBANAD VILLAGE-PIN-683 542 3. SAJU, AGED 45 YEARS, S/O.KURIAKOSE,KANNADAN HOUSE,PANIYELY KARA KOMBANAD VILLAGE-PIN-683 542 BY ADV. SRI.G.RAJAGOPAL RESPONDENT(S): ---------------------------- 1. K.K.LINZY,AGED 50 YEARS, S/O.KURIAKOSE, KANNADAN HOUSE, PANIYELY KARA, KOMBANAD VILLAGE, PIN-673 542 2. MONCY, AGED 42 YEARS, S/O.KURIAKOSE, KANNADAN HOUSE, PANIYELY KARA, KOMBANAD VILLAGE, PIN-673 542 3. MERCY GEORGE,AGED 48 YEARS, D/O.KURIAKOSE, KANNADAN HOUSE, PANIYELY KARA, KOMBANAD VILLAGE, PIN-673 542 4. SICILY JOSE, AGED 55 YEARS, D/O.KURIAKOSE, KANNADAN HOUSE, PANIYELY KARA, KOMBANAD VILLAGE, PIN-673 542 5. KURIAKOSE,AGED 79YERAS,S/O.PAILY, KANNADAN HOUSE, PANIYELY KARA,KOMBANAD VILLAGE KOMBANAD VILLAGE, PIN-673 542 BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 14/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts OP(C)NO.2249/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE PLAINT DATED 31/08/2010 IN OS NO.140 OF 2010 ON THE FILES OF THE SUBORDINATE JUDGESCOURT, PERUMBAVOOR. P2 COPY OF THE WRITTEN STATEMENT DATED 01/12/2010 FILED BY DEFENDANTS 1 TO 3 IN OS NO.140 OF 2010 ON THE FILES OF THE SUBORDINATE JUDGES COURT, PERUMBAVOOR. P3 COPY OF THE WILL DATED 20/09/2002 EXECUTED BY LATE SMT.EALY. P4 COPY OF THE I.A.NO.561/2011 IN OSNO.140 OF 2010 ON THE FILES OF THE SUBORDINATE JUDGES COURT, PERUMBAVOOR FILES BY PETITIONERS. P5 COPY OF THE COUNTER AFFIDAVIT FILED BY RESPONDENTS 1 TO 3 IN IA NO.561/2011 IN O.S.NO.140 OF 2010 ON THE FILES ON THE SUBORDINATE JUDGES COURT, PERUMBAVOOR. P6 COPY OF THE ORDER DATED 03/06/2011 IN IA.NO.561/2011 IN O.S.NO.561/2011 IN OS.NO.140 OF 2010 ON THE FILES OF THE SUBORDINATE JUDGES, PERUMBAVOOR. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.2249 of 2011 --------------------------------------- Dated this 14th day of July, 2011 JUDGMENT Petitioners are defendants 1 to 3 in O.S.No.140 of 2010 of the Sub Court, Perumbavoor. That is a suit filed by the first respondent against petitioners and respondents 2 to 5 for partition of the properties left behind by the late Ealy. According to the first respondent the said Ealy died interstate. Petitioners contend that Ealy had executed a Will bequeathing her properties to petitioners and others. Petitioners filed I.A.No.561 of 2011 to appoint a survey commission to show that before and after the death of Ealy the properties are in the possession of the legatees by virtue of the said Will. That application was dismissed by the learned Sub Judge by Ext.P6, order observing that there is no dispute regarding identity of property and as such there is no need to appoint a survey commission at this stage. Learned counsel contended that if due execution and attestation of the Will are proved, evidence through the survey commission is necessary to show that the Will has taken affect. 2. I am afraid, I am unable to accept that. What is required for petitioner to resist the suit is to prove that the O.P(C).No.2249 of 2011 -: 2 :- impugned Will is the last Will and testament of the deceased, duly executed and attested. If that is proved on the death of the testator the Will should come into effect. If that be so, at this stage appointment of survey commission as rightly found by the learned Munsiff is not required. The original petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-