IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 28TH OCTOBER 2010 / 6TH KARTHIKA 1932 WP(C).No. 28145 of 2010(O) -------------------------- OS.154/2008 of MUNSIFF COURT, PALA .................... WRIT PETITIONER: --------------- P D PRAKASH, S/o. DAMODARAN AGED 47 YEARS PUTHUVELIL, RAMAPURAM KARA VELLILAPPALLY VILLAGE MEENACHIL TALUK BY ADV. SRI.P.C.HARIDAS RESPONDENTS: --------------- 1. LALILTHAMBIKA, W/o. SUKUMARAN MENAMPARAMBIL RAMAPURAM KARA, VELLILAPPALLY VILLAGE MEENACHIL TALUK-686 576 2. LEENA W/o. SABU VELATHU BHAGOM, PIZHAKU KARA KADANADU VILLAGE-686655 ADV. SRI.MANUEL KACHIRAMATTAM FOR R1 & 2 SMT.MERRY GEORGE FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 28145 of 2010 APPENDIX PETITIONERS EXHIBITS: EXHIBIT P1 : PLAINT IN O.S.No.154/08 BEFORE THE MUNSIFFS COURT, PALA EXHIBIT P2 : WRITTEN STATEMENT IN O.S.No.154/08 BEFORE THE MUNSIFFS COURT, PALA EXHIBIT P3 : TRUE COPY OF THE WILL NO.25/94 OF SRO, RAMAPURAM EXHIBIT P4 : I.A.NO.724/09 IN O.S.No.154/08 BEFORE THE MUNSIFFS COURT, PALA EXHIBIT P5 : COUNTER TO EXT.P4 FILED BY the RESPONDENTS EXHIBIT P6 : I.A.No.811/09 IN O.S.No.154/08 BEFORE THE MUNSIFFS COURT, PALA EXHIBIT P7 : COMMON ORDER IN I.A.Nos.724/09 AND 811/09 IN O.S.No.154/08 BEFORE THE MUNSIFFS COURT, PALA RESPONDENTS' EXHIBITS: NIL True Copy P.A to Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P(C).No.28145 of 2010 --------------------------------------- Dated this 28th day of October, 2010 JUDGMENT This petition is filed by the plaintiff in O.S.No.154 of 2008 of the court of learned Munsiff, Pala challenging Ext.P7, common order on I.A.Nos.724 and 811 of 2009. Petitioner filed suit for partition. Respondent resisted the suit, inter alia, contending that their predecessor-in-interest has executed Will No.25 of 1995 dated 03-04-1995 disposing of his properties. The original Will was produced by the respondents in the court of learned Munsiff, a copy of which is Ext.P3. Later, petitioner withdrew the suit and accordingly suit was dismissed. Petitioner filed I.A.No.724 of 2009 to return the original Will to him while respondents filed I.A.No.811 of 2009 to keep the original Will in safe custody of court. Learned Munsiff allowed I.A.No.811 of 2009 and dismissed I.A.No.724 of 2010 vide Ext.P7, order. While disposing of the said applications learned Munsiff made certain observations as to the nature of disposition as per Will No.25 of 1995. Petitioner is aggrieved by Ext.P7, common order as well as the observations in the said order. It is pointed out by learned counsel for respondents that respondents had filed O.S.No.128 of 2009 for a W.P(C).No.28145 of 2010 : 2 : decree for prohibitory injunction and that suit has been dismissed. 2. Though there is challenge to Ext.P7, order to the extent that I.A.No.724 of 2009 was dismissed and I.A.No.811 of 2009 is allowed, learned counsel for petitioner states that he is confining his argument to the finding made by the learned Munsiff in Ext.P7, order concerning the nature of disposition made as per Will No.25 of 1995. I have heard counsel for respondents also in that regard. 3. It is seen from Ext.P7, order that learned Munsiff has entered into finding as to the nature of disposition made under Will No.25 of 1995. Such a finding or observation was absolutely not necessary for disposal of I.A.Nos.724 and 811 of 2009. Hence, the finding entered by learned Munsiff and contained in Ext.P7, order concerning the disposition made under Will No.25 of 1995 are to be set aside as the same was unnecessary. I make it clear that in other suits or appeals, if any pending between the parties or to be preferred, it is open to them to agitate the nature of disposition made under Will No.25 of 1995 and that setting aside the findings in Ext.P7, order by this judgment will not in any way affect the right of parties in challenging the nature of W.P(C).No.28145 of 2010 : 3 : disposition as per the Will in appropriate proceedings. Resultantly this revision is allowed to the extent that with the clarification made in paragraph 3 above, the finding entered by the learned Munsiff in Ext.P7, order as to the nature of disposition made under Will No.25 of 1995 is set aside. (THOMAS P JOSEPH, JUDGE) Sbna/-