IN THE HIGH COURT OF KERALA AT ERNAKULAM
Tr.Appeal(C).No. 1 of 2008()
1. SMT.SHIRLINESS, W/O.LATE BHASKARAN,
... Petitioner
Vs
1. SMT.SIMMY, D/O.MRS.OMANA, RESIDING AT
... Respondent
For Petitioner :SRI.MVS.NAMBOOTHIRY
For Respondent :SRI.G.BIJU
The Hon'ble MR. Justice KURIAN JOSEPH
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :03/03/2009
O R D E R
KURIAN JOSEPH & S.S.SATHEESACHANDRAN, JJ.
------------------------------------------
Transfer Appeal No.1 OF 2008
------------------------------------------
Dated this the 3rd day of March, 2009.
J U D G M E N T
Kurian Joseph, J.
Petitioner in Transfer Petition(C) No.192 of 2007 is the
appellant. Petitioner approached this Court praying for transfer
of O.S.No.118/2006 on the file of the Sub Court, Attingal to
Family Court, Kollam to be tried along with O.S.No.259/2006.
The petitioner is the wife of deceased Bhaskaran and the
defendant is his niece. The defendant is the plaintiff in the suit
before the Sub Court, Attingal. The parties claimed right and title
under two different Wills alleged to have been executed by
deceased Bhaskaran.
2. It is the contention of the appellant that the Family
Court has jurisdiction to try the suit under Section 7(1)
explanation (c) of the Family Courts Act, 1984. But, we are afraid
whether the Family Court has jurisdiction to try the suit instituted
Tr.Appeal No.1/2008 2
by the respondent-niece-plaintiff in O.S.No.118/2006 on the file
of Sub Court, Attingal. The fact remains that the crucial issue to
be decided in both cases relates to interpretation of Will/Wills
said to have been executed by deceased Bhaskaran. We are also
of the view that it is too early for the learned Single Judge to
make an observation in the order under appeal that the Family
Court does not have jurisdiction.
3. Be that as it may, in the nature of the order we propose
to pass in this appeal, it is not necessary for this Court to decide
those issues finally. O.S.No.118/2006 is the suit first pertaining
to the subject matter. That suit is pending before the Sub Court,
Attingal. The Sub Court had passed an order of injunction.
During the pendency of the said suit only, O.S.No.259/2006 on
the file of Family Court, Kollam was filed.
4. According to the learned counsel for the respondent, the
pendency of civil suit before the Civil Court was suppressed
before the Family Court. Whatever that be, since
O.S.No.118/2006 is the suit instituted earlier in point of time, we
feel that the said suit should be tried by the Sub Court, Attingal
Tr.Appeal No.1/2008 3
first and till such time further proceedings in O.S.No.259/2006 on
the file of the Family Court, Kollam should be stayed.
Accordingly, the Transfer Appeal is disposed of as follows:
There will be a direction to the Sub Court, Attingal to
dispose of O.S.No.118/2006, expeditiously. Till the suit is
disposed of, there will be a stay of all further proceedings, under
Section 10 of the Code of Civil Procedure, in O.S.No.259/2006 on
the file of the Family Court, Kollam.
KURIAN JOSEPH
JUDGE
S.S.SATHEESACHANDRAN
JUDGE
smp
Tr.Appeal No.1/2008 4
KURIAN JOSEPH &
S.S.SATHEESACHANDRAN, JJ.
Tr. Appeal No. 1 OF 2008
J U D G M E N T
03.03.2009