Kerala High Court
Dharman.M vs Muneswary on 30 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
TUESDAY, THE 30TH DAY OF MARCH 2021 / 9TH CHAITHRA, 1943
Tr.P(C).No.427 OF 2019
AGAINST THE ORDER/JUDGMENT IN OS 260/2018 OF MUNSIFF COURT,ALUVA
PETITIONER/PLAINTIFF:
DHARMAN.M
AGED 61 YEARS
S/O. MUTHUMANI, ANJALI NIVAS, BUILDING NO.1/300, NEAR
ALAMEEN COLLEGE, EDATHALA P.O, ALUVA.
BY ADVS.
SRI.K.S.RAJESH
SRI.M.SHAJU PURUSHOTHAMAN
RESPONDENTS/DEFENDANTS:
1 MUNESWARY
D/O. LATE MUTHUMANI, AGED 58 YEARS, RESIDING AT
MANIKKAM NAGAR 2ND STREET, AJAX, CHENNAI-19
2 SHIHABUDEEN @ BHEEMAN,
S/O. LATE MUTHUMANI, AGED 52 YEARS, RESIDING AT
SABEERA NIVAS, SEDIVALU VILLAGE, MINICOY ISLAND,
UNION TERRITORY OF LAKSHADWEEP, PIN-682 559.
3 THILAKAVATIY,
D/O. LATE MUTHUMANI, AGED 50 YEARS, RESIDING AT HOUSE
NO.48, AMMAN KOVIL STREET, AUNTIKUPPAM, CHENNAI-19
4 THAMIL SELVI,
D/O. LATE MUTHUMANI, AGED 45 YEARS,
RESIDING AT KOZHITHARAPARAMBIL HOUSE,
POLAYIL GEORGE LANE, DESHABIMANI ROAD, KALOOR POST,
ERNAKULAM DISTRICT, PIN-682 026.
R1, R3-4 BY ADV. SRI.R.PREMCHAND
R1, R3-4 BY ADV. SMT.A.A.DILSHAH
THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
30.03.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Tr.P.(C)No.427/2019
2
M.R. ANITHA, J.
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Tr.P.(C)No.427 of 2019
======================
Dated this the 30th day of March, 2021
ORDER
Transfer petition has filed seeking for transfer of
O.S.No.260/2018 pending before the Munsiff Court, Aluva to the
Principal Subordinate Court, North Paravur. The petitioner is
the defendant and the respondents are the plaintiffs in
O.S.No.449/2009 pending before the Principal Subordinate
Court, North Paravur. That suit was filed for partition and a
preliminary decree was passed. Thereafter, FDA No.47/2014 in
O.S.No.449/2009 was filed for passing final decree in accordance
with the preliminary decree and copy of the final decree
application is produced as Annexure A. In accordance with
Annexure A, final decree application, a commissioner was
appointed to effect partition and commissioner filed report.
While so, on 10.01.2018 the respondents/plaintiffs filed a
petition as I.A.No.175/2018 stating that the mother who was the
first plaintiff in the preliminary decree application as well as in
the final decree application expired and before seven months
Tr.P.(C)No.427/2019
back to her death she executed a Will bequeathing all her right
in the schedule property in favour of the second respondent,
copy of which is marked as Annexure B. So the plaintiffs prayed
for passing supplementary preliminary decree taking note of the
alleged Will. The petitioner herein who is the defendant disputes
the Will and according to him it is a fabricated document
obtained by respondents by committing fraud and forgery. They
also tried to encumber the property under the guise of that Will.
Hence he filed O.S.No.260/2018 before the Munsiff Court, Aluva
to declare the Will as null and void and for a permanent
prohibitory injunction, copy of the plaint is marked as
Annexure C.
2. According to the petitioner, the main issue which is to
be adjudicated in the final decree proceedings and also in the
suit is one and the same and it will thus be convenient for the
parties if both proceedings are adjudicated by same court.
Hence the petition.
3. When the petition came up for hearing, the learned
counsel for the respondents submitted that he has no objection
in transferring O.S.No.260/2018 from the Munsiff Court, Aluva to
Principal Subordinate Court, North Paravur.
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4. In view of the facts and circumstances a report was
also called for from the Principal Subordinate Court, North
Paravur to ascertain the present stage of the final decree
proceedings. The report of the Additional Sub Judge who is in-
charge of the Principal Sub Judge, North Paravur would reveal
that I.A.No.2348/2019 has been filed to withdraw
I.A.No.175/2018 and that is pending and simultaneously
I.A.No.2346/2019 also filed for passing supplementary
preliminary decree to divide the share of the deceased first
plaintiff among the plaintiff and defendants equally. So it
appears that the petition for passing supplementary preliminary
decree is pending and as per the averments in the petition the
genuineness of the Will alleged to be executed by the deceased
mother is a fact in issue to be decided in the final decree
proceedings as well as in O.SNo.260/2018 pending before the
Munsiff Court, Aluva. Since the parties and the subject matter in
both cases are almost same, it would be expedient if both cases
are tried by the same court so as to avoid conflicting decisions.
Hence I find it just and proper to allow the petition for transfer
filed by the petitioner.
Tr.P.(C)No.427/2019
5. In the result, Transfer Petition is allowed and
O.S.No.260/2018 pending before the Munsiff Court, Aluva is
hereby withdrawn and transferred to Principal Subordinate
Court, North Paravur.
6. The Munsiff Court, Aluva shall forthwith send the
entire records in O.SNo.260/2018 to Principal Subordinate
Court, North Paravur.
The parties shall bear their respective costs.
SD/-
M.R.ANITHA
shg JUDGE
Tr.P.(C)No.427/2019
APPENDIX
PETITIONER'S/S EXHIBITS:
ANNEXURE A TRUE COPY OF THE FINAL DECREE APPLICATION
FDA NO.47/2014 DATED 01.11.2004 FILED BY
THE RESPONDENTS IN OS.449/2009.
ANNEXURE B-A TRUE COPY OF THE IA 175/2018 DATED
10.01.2018 FILED BY THE RESPONDENTS.
ANNEXURE C TRUE COPY OF THE PLAINT IN OS.260/2018
DATED 26.07.2018 PENDING BEFORE THE MUNSIFF
COURT, ALUVA.
