IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 24TH MARCH 2011 / 3RD CHAITHRA 1933 OP(C).No. 1189 of 2011(O) -------------------------------- AGAINST THE ORDER DATED 01/02/2011 IN IA.542/2011 IN OS.8/2001 of ADDL.M.C.,KOZHIKODE-II .................... PETITIONERS/DEFENDANTS 2&3 --------------------------------------- 1. THYKKANDY THEKKUMBALATH LEELA AMMA, AGED 71 YEARS, D/O.T.T.MADHAVI AMMA, NELLIKKODE AMSOM DESOM, KOZHIKODE TALUK. 2. THYKKANDY THEKKUMBALATH VASANTHA, KUMARI AMMA, AGED 63 YEARS, D/O.T.T.MADHAVI AMMA, NELLIKKODE AMSOM AND DESOM, KOZHIKODE TALUK. BY ADVS. SMT.PRABHA R.MENON SRI.M.KRISHNAKUMAR RESPONDENT(S): PLAINTIFFS ----------------------------------- 1. M.N.KESAVAN, AGED 58 YEARS, S/O.LATE THYKKANDY THEKKUMBALATH, NARAYANAN NAIR, C/O.M.N.GOPALAKRISHNAN, NO.17, (NEW NO.21), IMAM ROAD, LAKSHMIPURAM, ULSOOR, BANGALORE-560 008, 2. K.PARU AMMA, AGED 86 YEARS, W/O.LATE THYKKANDY THEKKUMBALATH, NARAYANAN NAIR, C/O.M.N.GOPALAKRISHNAN, NO.17, (NEW NO.21), IMAM ROAD, LAKSHMIPURAM, ULSOOR, BANGALORE-560 008, THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 24/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs P.BHAVADASAN, J. ------------------------------------- OP(C) No.1189 of 2011-O ------------------------------------- Dated this the 24th day of March 2011 Judgment In this Original Petition under Article 227 of the Constitution of India, the petitioners challenge Ext.P2 order whereby the application filed by him for having the Will produced in the suit sent for expert opinion, was dismissed. 2. The petitioners are the defendants in OS No.8/01 on the file of the Munsiff's Court, Kozhikode. The suit property is stated to belong to one Narayanan Nair. The defendants set up a case of oral lease from the said Narayanan Nair and claimed tenancy right over the suit property. They sought for reference of the dispute to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act. Issues have been raised regarding non-joinder etc. According to the learned counsel, the issue regarding will also was raised. It was in that context that the petition was filed. 3. The court below has noticed that the issue regarding the Will is not a crucial matter for the decision of the suit. Even assuming the will is not genuine, still, the first plaintiff is a co-owner and in that capacity, he can maintain the suit. There is nothing to OPC 1189/11 2 show that the finding of the court below is erroneous in any manner. The genuineness or otherwise of the Will does not affect the right of the defendants, i.e., the petitioners herein. This petition is without any merits and it is accordingly dismissed. P.Bhavadasan, Judge sta OPC 1189/11 3