IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 4TH OCTOBER 2010 / 12TH ASWINA 1932 WP(C).No. 743 of 2010(O) ----------------------------------- PETITIONER(S): ---------------------- M.G.KESAVAPILLAI, 'SREEKANTH'THEKKEKARAMURI,CHAMPAKULAM VILLAGE, KUTTANAD TALUK, ALAPPUZHA DISTRICT. BY ADV. SRI.A.KRISHNAN RESPONDENT(S): -------------------------- 1. GIREESH G.NAIR, S/O.GANGADHARAN NAIR,GEETHABHAVAN, KALARKODE MURI,ALAPPUZHA. 2. GOWRI AMMA, WIDOW OF GOPALA PILLAI, DO. 3. G.VILASINIYAMMA, D/O.(LATE)GOPALA PILLAI PANJAMI, PERUNNA WEST ,CHANGANACHERRY. 4. G.VASANTHABAI, D/O.(LATE)GOPALAPILLAI, KRISHNAPADAM, AMBALAPUZHA. 5. G.VIJAYALAKSHMI, D/O.(LATE)GOPALAPILLAI, GOVARDHANAM, AMBALAPUZHA. 6. G.CHANDRIKABHAI, D/O.(LATE)GOPALAPILLAI, GEETHA BHAVAN,KALARKODE,ALAPPUZHA. R5, R6 BY ADV. SRI.ANIL K.NARENDRAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.743/2010 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PLAINT IN OS. 102/02 ON THE FILES OF THE HONOURABLE ADDL. MUNSIFF COURT, ALAPPUZHA DTD. 30.1.02. P2:- COPY OF THE IN IA. 3675/08 IN OS. 102/02 ON THE FILES OF THE HONOURABLE ADDL. MUNSIFF COURT, ALAPPUZHA DT. 3.11.08. P3:- COPY OF THE COUNTER IN IA. NO.3675/08 IN OS. 102/02 ON THE FILES OF THE HONOURABLE ADDL. MUNSIFF COURT, ALAPPUZHA DT.D 27.7.09. P4:- COPY OF THE ORDER DTD. 9.12.09 OF THE HONOURABLE ADDL. MUNSIFF COURT, ALAPPUZHA IN IA. 3675/08 IN OS. 102/02. TRUE COPY P.A. TO JUDGE tss HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.743 Of 2010 ---------------------- Dated this the 4th day of October, 2010. J U D G M E N T Ext.P4 order passed by the Additional Munsiff Court, Aleppey is under challenge. Petitioner is the plaintiff in O.S.No.102 of 2002. Suit was filed for permanent injunction restraining the defendants or persons claiming under them from widening plaint item No.3 pathway by demolishing or destroying the existing boundary fence of the item Nos.1 & 2 properties encroaching over any portion of schedule item No.1 property and also from putting up any bund across the canal passing through item No.1 property or drawing electric line across the plaint schedule item property. Plaintiff is the son of the second defendant. First defendant is the grandson of the second defendant. The second defendant passed away on 13.8.2008 leaving his wife, plaintiff and 4 daughters. The plaintiff filed Ext.P2 application before the trial court for an order to record him and to implead the wife and daughters as legal heirs as additional defendants in the suit. The respondents 5 & 6 herein who are W.P.(C).No.743 Of 2010 ::2:: sought to be impleaded as additional defendants 5 & 6 in Ext.P2 petition, filed objections stating that the deceased second defendant had executed a will as per which item No.2 is set apart exclusively for them reserving a life interest therein for the second respondent wife and hence the respondents 2, 5 and 6 alone need be impleaded. Ext.P3 is the objection. Learned Munsiff after considering Ext.P2 application and Ext.P3 objection observed that the suit is for injunction simplicitor and the cause of action arose from the apprehended alleged illegal acts of defendants 1 & 2. The court further observed that the right to sue survives against the surviving defendant alone and there is no cause of action against the legal representatives of deceased second defendant. The court held that suit shall proceed against the surviving first defendant and determination as to who are the legal representatives of deceased second defendant is unnecessary in a suit for injunction simplicitor. On the aforesaid reasonings the court dismissed the impleading application. In Ext.P3 objection submitted by respondents 5 & 6 who are some of the legal heirs of the second defendant stated that the W.P.(C).No.743 Of 2010 ::3:: deceased second defendant had executed a will as per which the item No.2 is set apart exclusively for them reserving a life interest for the second defendant and wife. The respondents 5 & 6 are claiming right over item No.2 property as per the will executed during the pendency of the suit. The prayer in the suit is for an injunction restraining the defendants and persons claiming under them from doing acts mentioned therein. Respondents 5 & 6 has already entered appearance before the court and filed objection. Their only contention is that they alone need be impleaded and not all the legal heirs of the second defendant. In such circumstance and for the reason that they are claiming title and possession of item No.2 property exclusively, it is just and equitable to implead them as additional defendants 3 & 4. The additional defendants are at liberty to file additional written statement with the leave of the court. 2. In the result, Ext.P4 order is set aside. I.A.No.3675 of 2008 for impleading is partly allowed to the extent of impleading counter petitioners 3 & 4. The court shall proceed with the case in accordance with law granting opportunity to the persons W.P.(C).No.743 Of 2010 ::4:: impleaded to contest the case as legal heirs of the deceased second defendant. It is made clear that the since suit is a simple suit for injunction simplicitor, the dispute if any as to the validity of the will is not a question to be decided in the suit. Writ petition is disposed of as above. HARUN-UL-RASHID, Judge. bkn/-