IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 19TH OCTOBER 2011 / 27TH ASWINA 1933 OP(C).No. 3370 of 2011(O) --------------------------------------- OS.NO.645/2009 of PRINCIPAL SUB COURT,IRINJALAKUDA .................... PETITIONER -------------------- SETHUMADHAVAN @ ACHARYA SETHUMADHAVAN, AGED 44,S/O.LATE SANKARAN KUNDANIYIL HOUSE, NELLIPARAMMBU,MATTATHUR PRESENTLY RESIDING AT VEDANGA JYOTHISHA PRAISHATH SEVEN SEAS ROAD, IRINJALAKUDA. BY ADV. SRI.K.A.SREEJITH RESPONDENT(S): ---------------------------- 1. SUNANDHA, S/O.LATE SANKARAN KUNDANIYIL HOUSE, NELLIPARAMBU,MATTATHUR. 2. UDHAYA, D/O.LATE SANKARAN KUNDANIYIL HOUSE, NELLIPARAMMBU,MATTATHUR,W/O.NARAYANAN, MUNDAKKAL HOUSE,PARAPPUKKARA P.O. 3. SUJAYA, D/O.LATE SANKARAN KUNDANIYIL HOUSE, NELLIPARAMMBU,MATTATHUR,W/O.SAAL, PALAPARAMBIL HOUSE,KOLEKUNNU, ASHTANICHIRA P.O BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 19/10/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts OP(C)NO.3370/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE PLAINT IN OS. 645/09 OF PRINCIPAL SUB COURT, IRINJALAKUDA. P2 COPY OF THE COUNTER CLAIM IN OS NO.645/09 OF PRINCIPAL SUB COURT, IRINJALAKUDA. P3 COPY OF THE I.A.NO.1942/11 IN OS NO.645/09 OF PRINCIPAL SUB COURT, IRINJALAKUDA. P4 COPY OF THE COUNTER TO IA NO.1942/11 P5 COPY OF THE ORDER PASSED IN IA NO.1942/11 IN OS NO.645/09 OF PRINCIPAL SUB COURT, IRINJALAKUDA. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.3370 of 2011 --------------------------------------- Dated this 19th day of October, 2011 JUDGMENT Defendant in O.S.No.645 of 2009 of the Court of learned Sub Judge, Irinjalakkuda is aggrieved by Ext.P5, order refusing to appoint a survey commission to identify the property as per a Will set up by him and allegedly executed by the father of petitioner and respondents 2 and 3. 2. Respondents filed the suit for partition and separate possession of their ¾ share in the suit property. Petitioner filed written statement and counter claim on the strength of a Will allegedly executed by the father. According to the petitioner, as per the Will the major portion of the suit property is bequeathed to him and the rest is bequeathed among the respondents. In the counter claim, petitioner prayed that based on the Will and survey records the property (bequeathed to him) may be located and boundary of D schedule property may be fixed. He also sought for certain other reliefs in respect of the counter claim D schedule property. Pending suit, petitioner filed I.A.No.1942 of 2011 for the issue of survey commission. The purpose of the application was to identify the property based on the Will in O.P(C).No.3370 of 2011 -: 2 :- question. That application was dismissed by the learned Sub Judge as per Ext.P5, order observing that the question of allowing the counter claim would arise only if the Will is proved, what is relevant for decision now is partibility of the property and if partibility claimed by the respondent is accepted, property has to be measured in the final decree proceeding. Learned Sub Judge held that in the circumstance, identification of property based on the dipsuted Will at this stage is a wasteful exercise. The further observation is that since the suit is of the year 2009 and it is one of the targeted cases, it could be included in the list for trial (learned counsel submits that the suit is already included for trial in the list). 3. Learned counsel submits that if the counter claim is allowed, boundary of the property as prayed for by the petitioner has to be fixed for which a properly measured plan based on the Will and the relevant survey records is necessary. If that is not done at this stage, petitioner will have to take steps in the execution proceeding which will only cause delay and create problems in execution. 4. Even as per the Will relied on by the petitioner, certain portion of the property is (allegedly) bequeathed in favour of respondents. Hence even if the claim of respondents for partition ignoring the Will is not allowed, it is well within the O.P(C).No.3370 of 2011 -: 3 :- power of the Court to order partition of the property based on the Will relied by petitioner in case due execution of that Will is proved and the circumstances warranted such a course. I must also bear in mind that even if the claim for partition as set up by the respondents is found against and counter claim of petitioner is allowed, even the executing court is competent to identify the property based on the Will (if proved in the trial side) and other relevant records. In that view of the matter and also since the suit is already posted for trial in the list I do not find reason to interfere in the matter. But, I make it clear that if the Will set up by the petitioner is accepted by the learned Sub Judge, learned Sub Judge has to grant relief to the petitioner as circumstances warranted and having regard to the counter claim made. With the above observations this original petition is closed. (THOMAS P JOSEPH, JUDGE) Sbna/-