IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 3RD MARCH 2009 / 12TH PHALGUNA 1930 Tr. Appeal(C).No. 1 of 2008 ------------------------------- AGAINST THE ORDER IN TPC.192/2007 Dated 07/11/2007 .................... APPELLANT/PETITIONER: --------------------------- SMT.SHIRLINESS, W/O.LATE BHASKARAN, PUTHENVEETTIL VADAKKATHIL, KONGALCHERRY, KOTTAPPURAM VILLAGE, KOLLAM DISTRICT. BY MR. MVS.NAMBOOTHIRY, ADVOCATE. RESPONDENT/RESPONDENT: -------------------------------- SMT.SIMMY, D/O.MRS.OMANA, RESIDING AT P.S.COTTAGE, PALACE ROAD, ATTINGAL VILLAGE, TRIVANDRUM DISTRICT. BY MR.G.BIJU, ADVOCATE. THIS TRANSFER APPEAL(CIVIL) HAVING BEEN FINALLY HEARD ON 03/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & S.S.SATHEESACHANDRAN, JJ. ------------------------------------------ Transfer Appeal No.1 OF 2008 ------------------------------------------ Dated this the 3rd day of March, 2009. J U D G M E N T Kurian Joseph, J. Petitioner in Transfer Petition(C) No.192 of 2007 is the appellant. Petitioner approached this Court praying for transfer of O.S.No.118/2006 on the file of the Sub Court, Attingal to Family Court, Kollam to be tried along with O.S.No.259/2006. The petitioner is the wife of deceased Bhaskaran and the defendant is his niece. The defendant is the plaintiff in the suit before the Sub Court, Attingal. The parties claimed right and title under two different Wills alleged to have been executed by deceased Bhaskaran. 2. It is the contention of the appellant that the Family Court has jurisdiction to try the suit under Section 7(1) explanation (c) of the Family Courts Act, 1984. But, we are afraid whether the Family Court has jurisdiction to try the suit instituted Tr.Appeal No.1/2008 2 by the respondent-niece-plaintiff in O.S.No.118/2006 on the file of Sub Court, Attingal. The fact remains that the crucial issue to be decided in both cases relates to interpretation of Will/Wills said to have been executed by deceased Bhaskaran. We are also of the view that it is too early for the learned Single Judge to make an observation in the order under appeal that the Family Court does not have jurisdiction. 3. Be that as it may, in the nature of the order we propose to pass in this appeal, it is not necessary for this Court to decide those issues finally. O.S.No.118/2006 is the suit first pertaining to the subject matter. That suit is pending before the Sub Court, Attingal. The Sub Court had passed an order of injunction. During the pendency of the said suit only, O.S.No.259/2006 on the file of Family Court, Kollam was filed. 4. According to the learned counsel for the respondent, the pendency of civil suit before the Civil Court was suppressed before the Family Court. Whatever that be, since O.S.No.118/2006 is the suit instituted earlier in point of time, we feel that the said suit should be tried by the Sub Court, Attingal Tr.Appeal No.1/2008 3 first and till such time further proceedings in O.S.No.259/2006 on the file of the Family Court, Kollam should be stayed. Accordingly, the Transfer Appeal is disposed of as follows: There will be a direction to the Sub Court, Attingal to dispose of O.S.No.118/2006, expeditiously. Till the suit is disposed of, there will be a stay of all further proceedings, under Section 10 of the Code of Civil Procedure, in O.S.No.259/2006 on the file of the Family Court, Kollam. KURIAN JOSEPH JUDGE S.S.SATHEESACHANDRAN JUDGE smp Tr.Appeal No.1/2008 4 KURIAN JOSEPH & S.S.SATHEESACHANDRAN, JJ. Tr. Appeal No. 1 OF 2008 J U D G M E N T 03.03.2009