Kerala High Court
Babu vs Lalitha on 1 July, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
F.A.O.NO. 59 OF 2022
AGAINST THE ORDER DATED 08.04.2022 IN I.A.NO.797 OF 2021 IN
O.S.NO.90 OF 2021 OF THE PRINCIPAL SUB COURT / COMMERCIAL
COURT, PALAKKAD
APPELLANTS/PETITIONERS/PLAINTIFFS:
1 BABU
AGED 47 YEARS, S/O. LATE SELVAN,
SREEDRISHYAM, SIVAJI ROAD,
VADAKKANTHARA, PALAKKAD DISTRICT, PIN - 678012.
2 UNNIKRISHNAN,
AGED 40 YEARS, S/O. LATE SELVAN,
DEVI ANUGRAHAM, KALAMPUZHA, MEPPARAMBU,
PALAKKAD DISTRICT, PIN - 678012.
BY ADVS.
JACOB SEBASTIAN
K.V.WINSTON
ANU JACOB
RESPONDENTS/RESPONDENTS/DEFENDANTS 1 TO 4:
1 LALITHA,
D/O. LATE SELVAN, AGED 44 YEARS, MURALI NIVAS,
SREERAMAPALAYAM, MOOTHANTHARA, VADAKKANTHARA,
PALAKKAD DISTRICT, PIN - 678012.
2 THE MANAGER, STATE BANK OF INDIA.
VADAKKANTHARA BRANCH, PALAKKAD DISTRICT,
PIN - 678012.
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F.A.O.No.59 of 2022
3 THE MANAGER, DHANALAKSHMI BANK,
MARKET ROAD BRANCH, PALAKKAD DISTRICT,
PIN - 678014.
4 THE MANAGER, TAMILNADU MERCHANTILE BANK LTD.,
SULTHANPET, PALAKKAD DISTRICT,
PIN - 678001.
OTHER PRESENT:
R1 BY SRI LIJU M.P.
SRI SAJAN VARGHESE K.
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR
FINAL HEARING ON 20.06.2022, THE COURT ON 01.07.2022
DELIVERED THE FOLLOWING:
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F.A.O.No.59 of 2022
JUDGMENT
Ajithkumar, J.
The appellants are the plaintiffs in O.S.No.90 of 2021
before the Principal Sub Court, Palakkad. They filed
I.A.No.797 of 2021 in the suit seeking a temporary injunction
prohibiting the 1st respondent-1st defendant from alienating
the petition schedule properties, inducting third parties into
possession, or collecting amounts in deposit with respondents
2 to 4 banks. That I.A. was dismissed as per the order dated
08.04.2022. challenging that order, this appeal under Order
XLIII, Rule 1(r) of the Code of Civil Procedure, 1908, is filed.
2. The 1st respondent is the caveator. He entered
appearance through her learned counsel. Considering the fact
that the order of injunction sought is essentially against the
1st respondent, the appeal was proceeded without issuing
notice to the other respondents.
3. Heard the learned counsel appearing for the
appellants and also the learned counsel appearing for the 1 st
respondent.
F.A.O.No.59 of 2022
4. The appellants and 1st respondent are children of
Sri.Selvan and Smt.Lekshmi. They executed a registered Will
dated 08.11.2006. Smt.Lekshmi died on 02.04.2017. It was
recited in that Will that the survivor would be the legatee.
Sri.Selvan had executed another Will on 11.05.2017 bequeathing
all his properties in favour of the 1 st respondent. The appellants
contend that Sri.Selvan, changing his mind, executed an
unregistered closed Will and entrusted the same with the 1 st
appellant. Sri.Selvan died on 8.5.2021. The said Will was opened
thereafter and realised that as per it the properties were
bequeathed equally to the appellants and the 1 st respondent. The
appellants, however, came to know that the 1 st respondent had
been trying to withdraw the amounts in deposit in the name of
Sri.Selvan and also to alienate his property, claiming her to be
the sole legatee. It was in the said circumstances, the appellants
filed the suit and also the application for injunction.
5. The case of the 1st respondent is that the alleged
unregistered Will is a forged one, and therefore, the
appellants have no right or interest in the properties
F.A.O.No.59 of 2022
belonging to Sri.Selvan. She claimed that she alone is entitled
to the assets of Sri.Selvan, which were bequeathed in her
favour as per the Will dated 11.05.2017. Attempt of the
appellants is said to be causing obstruction to the 1 st
respondent's carrying on the business of Sri.Selvan.
6. Respondents 2 and 3 filed counter statements
before the Court below. Their stand is that in cases where a
nomination has been made, the bank is bound to pay the
amount to the nominee. However, they would oblige the
directions of the court.
7. The learned Sub Judge took the stand that the
appellants did not succeed to establish, prima facie, that
Sri.Selvan had executed the unregistered Will, which was
marked as Ext.A1 and therefore they are not entitled to get
an order of injunction.
8. The learned counsel appearing for the appellants
would submit that such a finding was too premature, and the
learned Sub Judge should not have dismissed the application
for that reason. It is his submission that if the properties are
F.A.O.No.59 of 2022
alienated and the funds available with the accounts of
Sri.Selvan is appropriated by the 1st respondent, the rights of
the appellants would be adversely affected and they would be
put to irreparable injury and loss. It is his contention that the
genuineness of a Will is not dependent on whether or not it is
registered, but on whether or not its execution is proved. Only
in the trial to be taken place in the suit that question can be
decided and in the meantime, it is absolutely necessary to
preserve the subject matter of the suit, and therefore, there is
a prima facie case for the grant of an injunction as prayed for.
9. The learned counsel appearing for the 1 st
respondent, on the other hand, would contend that the
manner in which Ext.A1 was unearthed alone is enough to
show that it is of dubious origin and not genuine. When two
registered Wills were executed, ordinary prudence would not
allow accepting the proposition that Sri.Selvan would have
executed a third Will as unregistered. The relationship
between the parties was also such that there was no
likelihood of executing Ext.A1 by Sri.Selvan.
F.A.O.No.59 of 2022
10. Regarding the physical or mental ability of
Sri.Selvan to execute documents and manage his affairs, they
is no much dispute. The question of whether Ext.A1 Will was
executed by Sri.Selvan is a question to be decided only after
trial. Going by the natural course of events, Sri.Selvan ought
to bequeath his properties equally in favour of all his children.
But the fact that a Will is ordinarily executed to depart from
the natural course of succession, cannot be lost sight of.
Anyhow, those aspects can be decided only after a full-fledged
trial. The appellants, who are, none other than the children,
claim that their father had executed Ext.A1 Will and entrusted
it with the 1st appellant. Considering the rival contentions and
also the facts and circumstances of the case, we are of the
view that it is appropriate to preserve the subject matter of
the suit, till a decision on that disputed question is taken.
11. The learned counsel appearing for the 1 st
respondent contended that the appellants approached this
Court by filing a writ petition for obstructing the 1 st
respondent from carrying on the business. But, that fact was
F.A.O.No.59 of 2022
suppressed while filing the application for injunction.
12. On a perusal of the copy of the plaint in O.S.No.90
of 2021, which was made available for perusal during the
course of arguments by the learned counsel for the 1 st
respondent, it is seen that although in vague terms the
appellants stated in it regarding their approaching this Court
claiming reliefs in the matter. Therefore, the so called
suppression cannot be a reason dis-entitling the appellants
from claiming an order of injunction.
13. The learned counsel appearing for the 1 st
respondent would further contend that the bank accounts are
related to the running business inherited by her from
Sri.Selvan and unless the said accounts are operated, the 1 st
respondent would not be able to carry on the business. It is
alleged that the intention of the appellants also is to cause
obstruction to the smooth running of the business. No doubt,
the business shall not be affected on account of the litigations
between the parties. At the same time, the rights of the
parties are to be protected as well.
F.A.O.No.59 of 2022
14. After considering the pleadings and the materials
on record, and also the submissions made by the learned
counsel on either side, we are of the view that there shall be
an order of injunction restraining the 1 st respondent from
alienating any of the plaint schedule immovable properties.
The 1st respondent's entitlement to operate the savings bank
accounts in the name of Sri.Selvan and to withdraw the fixed
deposits in his name shall be subject to the specific orders in
that regard for which she can approach the court below. The
appeal is allowed to the above extent and I.A.No.797 of 2021
in O.S.No.90 of 2021 of the Principal Sub Court, Palakkad, is
allowed in the aforesaid terms.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
