IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 18TH MARCH 2010 / 27TH PHALGUNA 1931 WP(C).No. 2804 of 2010(A) ---------------------------------------------- PETITIONER(S): ---------------------- 1. MANJUSHA, W/O. CHANDRA BOSE, BOSE COTTAGE, THENGAPATTANAM, KANYAKUMARI DISTRICT. 2. G.CHANDRA BOSE, BOSE COTTAGE, THENGAPATTANAM, KANYAKUMARI DIST. 3. KRISHNAN, AGED 64 YEARS, MANALIVALA VEEDU, ARUMANA, KANYAKUMARI DISTRICT. BY ADV. SRI.G.S.REGHUNATH RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT (HOME), SECRETARIAT, THIRUVANANTHAPURAM. 2. CITY COMMISSIONER OF POLICE, THIRUVANANTHAPURAM. 3. SUB INSPECTOR OF POLICE, PEROORKADA POLICE STATION, THIRUVANANTHAPURAM. 4. PENTA COST MISSION, REP. BY ITS CENTRE PASTOR P.SELVAM, THROUGH POWER OF ATTORNEY HOLDER, THE GILBERT PRINCE. 5. SUB REGISTRAR, PATTOM, THIRUVANANTHAPURAM. W.P.(C).NO.2804 OF 2010 A R1 TO R3 & R5 BY GOVERNMENT PLEADER SHRI T.K. VIPINDAS ADV. R4I.BINOY VASUDEVAN FOR R4 SMT.P.G.BABITHA FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C).NO.2804 OF 2010 A PETITIONERS' EXHIBITS: EXT.P1TRUE COPY OF THE SALE DEED DATED 3.6.1988. EXT.P2TRUE COPY OF THE WILL DATED 16.7.04 EXECUTED BY SRI. GOPINATHAN IN FAVOUR OF RESPONDENTS 5 AND 6 WHO ARE THE CHILDREN OF SMT. GOMATHY. EXT.P3TRUE COPY OF THE RECEIPT OBTAINED FROM THE FIFTH RESPONDENT'S OFFICE. EXT.P4TRUE COPY OF THE INJUNCTION ORDER. EXT.P5TRUE COPY OF THE PLAINT IN OS.NO.1610 OF 2009. EXT.P6TRUE COPY OF THE F.I.R. NO.821 OF 2009 DATED 23.11.2009 REGISTERED BY 3RD RESPONDENT. EXT.P7TRUE COPY OF THE AGREEMENT SIGNED BY SRI. GOPINATHAN WITH GOVERNMENT OF INDIA. EXT.P8TRUE COPY OF THE PLAINT IN OS.NO.1170/2009 BEFORE THE MUNSIFF'S COURT, THIRUVANANTHAPURAM. EXT.P9TRUE COPY OF THE INJUNCTION APPLICATION IN OS.NO.1170/2009 ON THE FILE OF THE MUNSIFF'S COURT, THIRUVANANTHAPURAM. RESPONDENTS' EXHIBITS: EXT.R4(A) TRUE COPY OF THE WILL EXECUTED BY LATE SHYAMALA DATED 25.07.2009. EXT.R4(B) TRUE COPY OF THE UNDERTAKING GIVEN BY DEEPU SEBASTIAN TO THE 4TH RESPONDENT. EXT.R4(C) TRUE COPY OF THE OBJECTION PREFERRED BY THE 4TH RESPONDENT. EXT.R4(D) TRUE COPY OF THE PETITION FILED BY AYYAPPAN BEFORE THE MUNSIFF COURT. EXT.R4(E) TRUE COPY OF THE COMPLAINT PREFERRED BY THE 4TH RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, THIRUVANANTHAPURAM-II AS CMP.NO.2989/2009. EXT.R4(F) PHOTOSTAT COPY OF THE CERTIFIED COPY OF THE F.I.R. IN CRIME NO.821/2009 OF PEROORKADA POLICE STATION. // True Copy // PS to Judge K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. -------------------------------------------------- W.P(C). NO. 2804 OF 2010 A --------------------------------------------------- Dated this the 18th March, 2010 JUDGMENT K.M. Joseph, J. This is a Writ Petition where the allegation is of harassment by the third respondent. The third respondent is the Sub Inspector of Police, Peroorkada Police Station. The prayers in the Writ Petition are as follows: “A. Issue a writ of mandamus directing the third respondent not to coerce the petitioners or the fifth respondent to produce the original of Ext.P2 before him until the proceedings before the fifth respondent and the civil court are terminated; B. Issue a writ of mandamus directing the third respondent not to harass the petitioners and force them to produce the original of Exts.P2 and P7 until its genuineness is decided by the civil court.” 2. Briefly put, the case of the petitioners is as follows: First petitioner is the plaintiff in OS.No.1170 of 2009. As WPC.2804/2010 A 2 per Ext.P1 sale deed, Shri C. Gopinathan and Smt. Shyamala were in absolute possession and enjoyment of 9.857 cents of property and the building therein. The second petitioner is the husband of the first petitioner and the third petitioner is the father of the first petitioner. Shri Gopinathan and his wife Smt. Shyamala were living separately as his wife was actively involved in Pentacost Mission activities and was leading an indifferent life totally neglecting and deserting Shri Gopinathan. Shri Gopinathan, in short, is alleged to have executed Ext.P2 Will in favour of the first petitioner and her sister. The Will was kept as a secret by Shri Gopinathan to avoid problems. He died on 4.4.2009 and the Will came into force. The Will was produced before the fifth respondent's office for registering the same. While so, the fourth respondent attempted to trespass into the building and hence OS.No.1170/09 and other Suits were filed. Ext.P4 is the injunction order. It was while so that the fifth respondent was considering the matter and the matter is pending before the court, third respondent filed Ext.P6 FIR on WPC.2804/2010 A 3 the instigation of the fourth respondent and is demanding the petitioners to get back the original of the Will handed over to the fifth respondent for registration. 3. A Counter Affidavit is filed by the fourth respondent producing Exts.R4(a) to R4(f). According to the fourth respondent, Ext.R4(a) Will is executed by late Shyamala on 25.7.2009. Ext.R4(b) is the undertaking given by Deepu Sebastian. Ext.R4(c) is the objection by the fourth respondent to the I.A. filed in the civil suit. Ext.R4(d) is the petition filed by Ayyappan before the Munsiff Court. Ext.R4(e) is the complaint filed by fourth respondent before the Magistrate Court. Ext.R4 (f) is the certified copy of FIR in Crime No.821 of 2009. They deny the case of the petitioners that the third respondent interfered on the basis of the influence by the fourth respondent. They challenge the very maintainability of the Writ Petition on the ground that FIR is registered and if at all, the petitioners are to work out their remedies elsewhere. WPC.2804/2010 A 4 4. We heard the learned counsel appearing for the parties including the learned Government Pleader. The main complaint of the petitioners is that the original of Ext.P2 Will has been produced before the Registrar under Section 40 of the Indian Registration Act. Ext.P7 is alleged to be a document containing the admitted signatures of late Shri Gopinathan. There is no dispute among the parties that in respect of both Exts.P2 and P7, the police may have to approach the Magistrate and obtain an order and cannot directly seize the documents from the possession of the fifth respondent in respect of Ext.P2 and the Advocate to whom allegedly Ext.P7 is entrusted. In such circumstances, the Writ Petition is disposed of as follows: We make it clear that police will be free to continue to investigate the matter in respect of the crime which has been registered. No doubt, learned counsel for the petitioners would submit that the petitioners are challenging the very case itself. This Judgment will be without prejudice to the right of the petitioners to challenge the matter in the appropriate Forum. We WPC.2804/2010 A 5 further make it clear, however, that in regard to the seizure of the original of Ext.P2 Will which is presently with the fifth respondent or Ext.P7 which is with the Advocate, the third respondent cannot seize the documents unless and until after getting an order from the competent Magistrate in this regard. Sd/= K.M. JOSEPH, JUDGE Sd/= M.L. JOSEPH FRANCIS, JUDGE kbk. // True Copy // PS to Judge