Kerala High Court
Sasikala Sukumaran vs S.Sharathkumar on 6 September, 2024
2024:KER:67844
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
FRIDAY, THE 6TH DAY OF SEPTEMBER 2024 / 15TH BHADRA, 1946
FAO NO. 68 OF 2024
AGAINST THE ORDER/JUDGMENT DATED 25.03.2024 IN OS
NO.112 OF 2023 OF II ADDITIONAL SUB COURT,ERNAKULAM
APPELLANT/RESPONDENT/PLAINTIFF:
SASIKALA SUKUMARAN
AGED 58 YEARS
W/O.DR.DEVIDAS VELLODI, RESIDING AT GANAM,
RAVIPURAM ROAD, ERNAKULAM DISTRICT,
PIN - 682016
BY ADVS.
HARISH R. MENON
K.T.SHYAMKUMAR
A.G.PRASANTH
K.N.ABHA
FAO NO. 68 OF 2024
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RESPONDENT/PETITIONER/DEFENDANT:
S.SHARATHKUMAR
AGED 60 YEARS
S/O.T.M.SUKUMARAN NEDUNGADI, RESIDING AT
SWAPNAM, OPP. KENDRIYA VIDYALAYA, GANDHI NAGAR,
KOCHI, PIN - 682020
BY ADVS.
A. Balagopalan A
A.RAJAGOPALAN(K/339/1994)
M.N.MANMADAN(K/198/1998)
M.S.IMTHIYAZ AHAMMED(K/151/1999)
P.SEENA(K/000546/2000)
THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY
HEARD ON 06.09.2024, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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C.JAYACHANDRAN, J.
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FAO No.68 of 2024
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Dated this the 6th day of September, 2024
JUDGMENT
This first appeal against the order is preferred by the
1st plaintiff in the suit, O.S.No.112/2023, pending before the
Additional Sub Court-II, Ernakulam, challenging the Order
passed in I.A. No.14/2024, as per which, the 1 st plaintiff is
restrained from entering into the plaint schedule property and
the defendant was permitted to reside in the plaint schedule
property.
2. The brief facts may be summarized thus:
A suit for partition was instituted by the plaintiffs, two
sisters, as O.S.No.112/2023 against the defendant, who is
their sole brother. While the plaintiff propound a Will executed
by their mother in the year 2018 to set up title to the
scheduled property, the defendant/brother is espousing a Will
of the year 2015. Neither the plaintiffs nor the defendant were
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residing in the plaint schedule property at the time of
institution of the suit. There is a three storied building in the
plaint schedule property. Several interlocutory applications
were filed in the suit, a reference to which, is not strictly
required for the disposal of the present appeal. The FAO
stems from I.A.No.14/2024, whereunder the defendant sought
an injunction seeking to restrain the plaintiff from entering into
the scheduled property. One among the reasons espoused in
that application was that the defendant was suffering from
Stage-III liver cancer and that he is terminally sick and hence
advised to shift to a pollution free environment. It was averred
that, if the 1st plaintiff enters into the plaint scheduled property,
the peaceful residence of the defendant in the scheduled
property will be disturbed. On such premise, the I.A. was filed
seeking the relief as sought for.
3. A counter affidavit was filed opposing the
same. It was, inter alia, claimed that the plaintiffs are the
owners of the property on the strength of the Will executed in
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their favour. Permitting the defendant to stay in the building in
plaint schedule premises and restraining the plaintiffs from
entering therein would be quite illegal, besides causing
serious prejudice.
4. However, the counter was sidelined and the
learned Sub Judge found that the defendant's claim to shift to
a cleaner environment having less pollution is genuine and
bonafide. It was also noticed that the defendant had
conducted repair works in the plaint schedule property. The
Court went on to find that the Will claimed by the defendant of
the year 2015 seems to be genuine, as per which the
defendant is the owner of the plaint schedule item No.1
property. It was then found that the 1 st plaintiff cannot claim
her right as a co-owner, since she has to prove the execution
of the Will of the year 2018. Accordingly, the application is
allowed.
5. Having heard the learned counsel appearing
for the appellant and the respondent, this Court cannot fully
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approve the findings in the impugned order, especially that
part of the impugned order which restrains the appellant/1st
plaintiff from entering into the plaint schedule property.
Admittedly, the parties are siblings. Both parties are claiming
title to their plaint schedule property on the strength of two
Wills, one of the year 2015 which is registered, and another,
of the year 2018, which is unregistered. It is too premature at
this stage of the suit to make any observation with respect to
the validity of any Will, even if it is for the purpose of a prima
facie case. This Court cannot appreciate the cause espoused
in the interlocutory application that the defendant stands in
need of shifting to a cleaner environment as a reason for
shifting his residence to the plaint schedule property. It is
important to note that the defendant was residing at Girinagar,
a residential area; and the plaint schedule property is situated
at Ravipuram, which facts are not disputed. If that be so, this
Court fails to understand as to how the residence at
Ravipuram would offer a more cleaner, or for that matter at
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less polluted environment, for the plaintiff to sustain his claim.
Nevertheless, this Court is not inclined to interfere with that
part of the order, which permits the defendant to reside in the
plaint schedule property, especially taking into account the
fact that he is terminally sick, affected by Stage-III liver
cancer. Let his desire be fulfilled, inasmuch as he can claim
the status of a co-owner in any case, irrespective of the fact
whether his contentions in the written statement are ultimately
going to be upheld or not.
6. However, that part of the order which
restrains the 1st plaintiff/appellant from entering into the
property cannot be sustained. There is no finding in the
impugned order that the 1st plaintiff/appellant is a trouble
maker and that her presence in the property would imperil the
peaceful residence of the defendant in the property. As
already indicated, both parties are staking claims based on
two separate Wills and it is only after trial that the rival claims
on title can be adjudicated. As it stands now, this Court finds
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no reasons to restrain the 1st plaintiff/appellant from entering
into the property, simultaneous with recognizing the
defendant's claim for residing in the property.
7. In the above circumstances, the impugned
order is modified as follows:
The defendant is permitted to reside in
the plaint schedule item No.1 property.
The prayer for restraining the 1st
plaintiff/appellant from entering into the
plaint schedule property will stand rejected.
However, there will be an injunction as
against the 1st plaintiff/appellant from doing
anything in the plaint schedule property so
as to interfere with the peaceful residence
of the defendant in the plaint schedule
property. The interlocutory application will
stand disposed by virtue of the above
directions.
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FAO is disposed of as above.
Sd/-
C.JAYACHANDRAN
JUDGE
STB
