IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 17TH MAY 2010 / 27TH VAISAKHA 1932 WP(C).No. 14750 of 2010(O) -------------------------- AGAINST THE ORDER DATED 05/04/2010 IN IA.111/2010 IN CMA.14/2010 of DISTRICT COURT,THODUPUZHA IA NO.220/2010 IN OS.27/2010 of MUNSIFF COURT,THODUPUZHA .................... PETITIONER(S): --------------- 1. K.E.PRABHAKARAN,S/O.LATE EACHARAN, KAZHINJU KALLUMKAL HOUSE,KOLANI KARA, PARAKADAVU BHAGOM,THODUPUZHA VILLAGE & TALUK. 2. K.P.ROY,S/O.DO. DO. 3. P.D.CHANDRAN,S/O.DAMODARAN, PULIKAKUNNEL HOUSE,KUNINJI KARA,PURAPPUZHA VILLAGE THODUPUZHA TALUK. 4. PAPPA,S/O.KUNJAN,VETTIKATTIL HOUSE, ANICADU KARA,AVOLI VILLAGE,MUVATTUPUZHA TALUK. 5. BINU,S/O.KESAVAN,PEPPARHICKAL HOUSE, WEST KODIKULAM,KODIKULAM VILLAGE,THODUPUZHA TALUK. BY ADV. SRI.MATHEW JOHN (K) RESPONDENT(S): --------------- SIVASUDHA,W/O.LATE SASI, KUZHINJAKALLUMKAL HOUSE, KOLANI KARA, THODUPUZHA VILLAGE,THODUPUZHA TALUK. ADV. SMT.S.KARTHIKA SRI.M.S.UNNIKRISHNAN SRI.M.R.ANISON SMT.K.P.GEETHA MANI SRI.P.N.APPUKUTTAN SMT.P.A.RINUSA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONERS' EXHIBITS: EXT.P1 - A TRUE COPY OF THE PLAINT DATED 2.2.2010 BY THE RESPONDENT EXT.P2 - A TRUE COPY OF THE AFFIDAVIT AND PETITION DATED 2.2.2010 BY THE RESPONDENT EXT.P3 - A TRUE COPY OF THE COUNTER AFFIDAVIT DATED 15.2.2010 BY THE FIRST PETITIONER EXT.P4 - A TRUE COPY OF THE REPLY AFFIDAVIT FILED BY THE RESPONDENT DATED 25.2.2010 EXT.P5 - A TRUE COPY OF THE WILL DATED 12.12.1994 EXT.P6 - A TRUE COPY OF THE SALE DEED DATED 17.8.1976 EXT.P7 - A TRUE COPY OF THE PHOTO IDENTITY CARD EXT.P8 - A TRUE COPY OF DOCUMENT NO.2420/1991 EXT.P9 - A TRUE COPY OF ORDER DATED 6.3.2010 IN IA NO.220 OF 2010 IN OS NO.27 OF 2010 EXT.P10 - A TRUE COPY OF THE MEMORANDUM OF APPEAL DATED 12.3.2010 BY THE PETITIONERS EXT.P11 - A TRUE COPY OF THE AFFIDAVIT AND PETITION FOR STAY DATED 12.3.2010 BY THE PETITIONERS EXT.P12 - A TRUE COPY OF THE ORDER DATED 5.4.2010 IN IA NO.111 OF 2010 IN CMA NO.14 OF 2010 //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.14750 of 2010 -------------------------------------- Dated this the 17th day of May, 2010. JUDGMENT Writ petitioners are the defendants in O.S.No.27 of 2010 of the court of learned Munsiff, Thodupuzha, instituted by respondent/plaintiff claiming to be the absolute owner in possession of the suit property - 1.08 acres on the strength of Ext.P5, unregistered Will dated 10.12.1994 allegedly executed by her father-in- law, Eacheran bequeathing the said property in favour of her husband, Sasi who died on 30.7.2009. Respondent filed an application for temporary injunction which after hearing both sides was allowed by the learned Munsiff. Now as per that order, petitioners before me are restrained from trespassing into the suit property. Petitioners challenged that order in C.M.A.No.14 of 2010 and along with that, filed I.A.No.111 of 2010 for stay of operation of the order of injunction. Learned District Judge after hearing the parties dismissed I.A.No.111 of 2010. That order is under challenge in this Writ Petition under Article 227 of the Constitution. It is contended by learned counsel for petitioners that the impugned order is prima facie illegal in that a mere look of the disputed and admitted signatures of the scribe and the attesting witness No.1 and the admitted and disputed thumb impressions of the testator would reveal the falsity behind the creation of Ext.P5 (marked in the courts below as Ext.A1). It is the submission of learned counsel that until the interim order was passed by the learned Munsiff, Bhaskaran, the eldest son of Eacheran was looking after and WP(C)No.14750/2010 2 managing the properties on behalf of all the co-owners. In the circumstances, it was not justified that learned District Judge dismissed I.A.No.111 of 2010. Learned counsel submits that this Court while admitting the Writ Petition passed an interim order of stay (of dismissal of I.A.No.111 of 2010) as prayed for by the petitioners and that keeping that order alive learned District Judge may be directed to dispose of the Civil Miscellaneous Appeal as expeditiously as possible. Learned counsel for respondent submits that the trial court after consideration of the respective contentions allowed I.A.No.220 of 2010 restraining petitioners from trespassing into the suit property and after hearing both sides learned District Judge dismissed I.A.No.111 of 2010 for reasons stated in Ext.P12, order which is prima facie sustainable and hence the request made by learned counsel for petitioners to keep the interim order passed by this Court alive cannot be allowed. 2. Learned counsel for petitioners has invited my attention to the admitted signature/thumb impression of the scribe, attesting witness No.1 and the testator respectively and the disputed signatures/thumb impressions in Ext.P5 (Ext.A1 in the courts below) to buttress his contention that the signatures/thumb impressions in Ext.P5 are apparently dissimilar to the admitted ones in which case the trial court while considering I.A.No.111 of 2010 must have been slow in grating order of interim injunction in favour of respondents WP(C)No.14750/2010 3 based on the impugned Will. I am afraid, when the Civil Miscellaneous Appeal itself is pending consideration before the appellate court it is not proper for this Court to go into that question and enter a finding even prima facie since that may have a bearing upon the finding that the appellate court may take in C.M.A.No.14 of 2010. Therefore, I do not venture to do so at this stage. 3. At the same time, interest of the petitioners has also to be protected. Learned counsel for respondent submits that respondent has been taking yield from the suit property until this Court passed interim order of stay on 11.05.2010 and thereafter, respondent is not taking yield from the property. I am told that the suit property is a yielding rubber plantation. The interest of both sides can be protected for the time being by directing respondent to submit before the appellate court details of income obtained and expenses incurred for collecting latex from the suit property from 18.5.2010 until the Civil Miscellaneous Appeal is disposed of. Statement shall be filed weekly, to be filed on or before Tuesdays in respect of the preceding week. Question as to entitlement of income, less expenses incurred shall be decided while deciding the suit. In the light of the above, the interim order passed by this Court on 11.05.2010 is vacated and this Writ Petition is disposed of in the above lines making it clear that it will be for the appellate court to decide the Civil Miscellaneous Appeal based on the contentions raised by the parties as to the WP(C)No.14750/2010 4 genuineness or otherwise of the Will in question. Appellate court shall expedite disposal of the Civil Miscellaneous Appeal. THOMAS P.JOSEPH, Judge. cks