IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 6TH JULY 2011 / 15TH ASHADHA 1933 OP(C).No. 255 of 2011(O) ------------------------ CMA.59/2009 of ADDL.DISTRICT COURT (SPECIAL),KOTTAYAM OS.142/2008 of ADDL.SUB COURT,KOTTAYAM .................... PETITIONER(S): PLAINTIFFS: --------------------------------------------- 1. S.NARAYANA SWAMI , S/O.LATE K.S.GOMATHI AMMAL, NAGARI VADAKKEMADAM, HARIPPAD, ALAPPUZHA DISTRICT. 2. S.R.S. MANI, S/O.LATE K.S.GOMATHY AMMAL, BRINDAVAN HOUSE,KUDAMALOOR. BY SRI.V.CHITAMBARESH, SENIOR ADVOCATE, BY ADV. SRI. K.SHAJ, SRI.SAJJU.S. RESPONDENT(S): RESPONDENTS: ---------------------------------------------------- 1. SHAIJU @ SONEY, W/O.ABDUL HAMEED, PUTHUPARAMBIL HOUSE, THEKKUMGOPURAM, KARAPUZHA VILLAGE, KOTTAYAM TALUK, NOW RESIDING AT BUILDING NO.XII/9-A NATTAKAM GRAMA PANCHAYATH KAKKOOR KARA, NATTAKAM VILLAGE- 680 666. 2. R.MADHAVAN, S/O.LATE BHAGAVATHY AMMAL, PULLAN PLAVILMADAM, THATTARAMBALAM, MAVELIKARA - 690 103. 3. UMA SANTHOSH, D/O. BHAGAVATHY AMMAL, PULLAN PLAVILMADAM, THATTARAMBALAM, MAVELIKARA - 690 103. 4. K.S.RAJALEKSHMI, D/O.SWAMI IYER, RESIDING AT AKSHAYA SINGLE STREET, KARAMANA PO, THIRUVANANTHAPURAM - 679 506. 5. H.NARAYANA IYER, S/O.K.S.RAJALEKSHMI, RESIDING AT THULASI NIVAS, KAKKOOR, NATTAKAM PO, KOTTAYAM - 680 666. Kss ..2/- ...2.... OP(C) NO.255/2011 O 6. H.NARAYANAN, S/O.K.S. RAJALEKSHMI, RESIDING AT RANJANI, SUBRAMANYAN STREET, PARALAR COLONY, BEACH ROAD, NAGARCOIL PO, TAMILNADU - 629 001. 7. R.GEETHA KRISHNAN, D/O.K.S.RAJALEKSHMI, RESIDING AT SUMATHI NIVAS,KOCHAR ROAD, OPPOSITE KAVIL DEVI TEMPLE, VALIYASALA PO., THIRUVANANTHAPURAM - 05. R1 & R5 BY ADVS. SRI.R.S.KALKURA, SRI.M.S.KALESH, SRI.HARISH GOPINATH, SRI.V.VINAY MENON, SRI.M.AJAY (IRUMPANAM), SMT.KVP.JAYALEKSHMY, SMT.A.V.PRIYA. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 06/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OP(C) NO.255/2011 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S.NO.142/2008 FILED BEFORE THE ADDITIONAL SUB COURT, KOTTAYAM. P2: COPY OF THE WILL DEED NO.68/2002 OF KOTTAYAM SUB REGISTRY OFFICE EXECUTED BY K.S.CHITHAMBARAM. P3: COPY OF THE CERTIFIED COPY OF THE SALE DEED NO.2195/2007 OF SRO KOTTAYAM EXECUTED BY THE 5TH RESPONDENT HEREIN IN FAVOUR OF THE 1ST RESPONDENT HEREIN. P4: COPY OF THE ORDER DTD. 5/10/2009 PASSED BY THE ADDITIONAL SUB COURT, KOTTAYAM IN I.A.801/08 IN O.S.NO.142/08. P5: COPY OF THE ORDER DTD. 12/10/2010 PASSED BY THE ADDITIONAL DISTRICT COURT (SPECIAL) KOTTAYAM IN CMA NO.59/2009. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.255 of 2011 --------------------------------------- Dated this 06th day of July, 2011 JUDGMENT Two among the plaintiffs in O.S.No.142 of 2008 of the Court of Learned Additional Sub Judge, Kottayam are the petitioners before me challenging the judgment in C.M.A.No.59 of 2009 of learned Additional District Judge (Special), Kottayam setting aside the order of injunction passed by learned Additional Sub Judge restraining the first respondent/first defendant from alienating the properties which are the subject matter of the suit. The properties originally belonged to one K.S.Chitambaram who, it is not disputed, executed a Will in respect of the said properties. According to the petitioners and other plaintiffs, testator bequeathed the properties to two of his sisters and their children, each getting 1/7th share. It is the further case of petitioners and others that Narayana Iyer, one of the sons of the sister was authorised to look after the properties. But, misusing that power, he executed assignment deed in respect of the entire properties in favour of the first respondent asserting absolute right over it. Petitioners and others therefore sued for partition of the said properties after setting aside the assignment deed in O.P(C).No.255 of 2011 -: 2 :- favour of first respondent and moved an application for temporary injunction restraining the first respondent from alienating the said properties. Learned Additional Sub Judge after considering the Will found a prima facie case in favour of petitioners and other plaintiffs and granted temporary injunction. The appellate court however took a different view, according to it, right of petitioners and other plaintiffs is only to recover their portion of the sale consideration from Narayana Iyer. The order of the trial court was reversed. That judgment is under challenge. 2. Learned Senior Advocate appearing for petitioners contend that interpretation of the Will made by learned Additional District Judge is erroneous and that in respect of the properties which were bequeathed to the two sisters and their children, they became absolute owners on the death of the testator and hence the testator could not have authorised anybody else to execute the assignment deed in respect of properties belonging to the petitioners and other plaintiffs. 3. At the time of hearing, learned counsel for first respondent has undertaken that first respondent will not encumber or alienate the properties covered by the assignment O.P(C).No.255 of 2011 -: 3 :- deed in his favour until final decision in the suit. That undertaking is recorded. Having heard learned counsel on both sides I am inclined to think that the said undertaking is sufficient to secure the interest that petitioners and other plaintiffs claim in the property. Resultantly this original petition is disposed of recording the undertaking made by the learned counsel on behalf of the first respondent that the first respondent will not encumber or alienate the suit properties on the strength of the impugned assignment deed, until disposal of the suit. (THOMAS P JOSEPH, JUDGE) Sbna/-