IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 26TH NOVEMBER 2008 / 5TH AGRAHAYANA 1930 WP(C).No.34950 of 2008 (I) --------------------------------- OS.504/2007 of SUB COURT, IRINJALAKUDA .................... PETITIONER: --------------- MALATHI AMMA, MULLASSERY HOUSE, KARUMATHRA VILLAGE, P.O.KARUMATHRA, THRISSUR DIST. BY ADV. SRI.K.S.RAJESH SRI.M.SHAJU PURUSHOTHAMAN SRI.M.O.PAULSON RESPONDENT: ---------------- 1. SAROJINI, D/O.MULLASSERY NANIKUTTY AMMA, BHASURAM VEEDU, KONATHUKUNNU DESOM, THEKKUMKARA P.O. KONATHUKUNNU, MUKUNDAPURAM TALUK. 2. M.VIMALA, D/O.MULLASSERY NANIKUTTY AMMA, KODAMANA VEEDU, THIRUVENKITOM, GURUVAYOOR, CHAVAKKAD TALUK. 3. JANAKI, D/O.MULLASSERY NANIKUTTY AMMA, RAJADHANI, CHERUMUKKU TEMPLE ROAD, IRINJALAKUDA DESOM, MANAVALASSERY VILLAGE, MUKUNDAPURAM TALUK. 4. M.RAMADEVI, D/O.MULLASSERY NANIKUTTY, P.O.KONATHUKUNNU, MUKUNDAPURAM TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.34950 of 2008 ------------------------------------------------ Dated this the 26th day of November, 2008 JUDGMENT The petitioner is the tenth defendant in O.S.504/07 pending before the Sub Court, Irinjalakuda. The suit is one for partition. It is submitted that the plaintiffs in the suit have alleged that the plaintiffs and defendants are the legal heirs of the deceased Kunjikuttan Nair and that the scheduled properties in the suit were owned by the deceased and have devolved on all of them by intestacy; and all the parties to the suit are entitled to get equal share and it is on that basis that partition has been sought for. It is further submitted that there is a will executed by the deceased Kunjikuttan in favour of the petitioner/10th defendant; and that has been set up as a defence in O.S.504/07 to resist partition and that O.S.653/07 filed by W. P. C. No.34950 of 2008 -2- the petitioner prior to institution of O.S.504/07 is pending in Munsiff's Court, Kodungallur; that in the said suit and in O.S.504/07 the question regarding validity of the will is substantially in issue and that therefore, O.S.504/07 instituted subsequently is liable to be stayed under Section 10 of the C.P.C and that I.A.3350/08 has been filed by the petitioner in O.S.504/07 on 03/09/08, but that the court below is not passing appropriate orders hearing arguments on I.A.3350/08 and that the suit O.S.504/07 has not been posted for trial in the list as yet as the case stands posted to tomorrow only for pretrial steps. 2. In view of the submissions so made and taking the submissions as true at the face value, I direct the Sub Judge, Irinjalakuda to pass appropriate orders on I.A.3350/08 before inclusion of O.S.504/07 in the special list W. P. C. No.34950 of 2008 -3- for trial. 3. This Writ Petition is disposed of with the above directions. The petitioner shall produce a copy of this judgment before the trial court forthwith with notice to the counsel for the respondents in the court below as this Writ Petition is being disposed of without notice to the respondents. 4. Issue copy of this judgment to the counsel for the petitioner urgently. K.P.BALACHANDRAN, JUDGE kns/-