MANJU SHINE Vs. SHEEJA AND ORS.

JUDGEMENT

(1.) The petitioner is the plaintiff in O.S. No. 32 of 2015 on the file of the Court of the Subordinate Judge of Ernakulam. The respondents are the defendants therein. The suit instituted by the appellant is one for partition of the plaint B schedule property and plaint C schedule movables into five equal shares and allotment of one such share to her. The petitioner has also prayed for a decree directing the first defendant not to renew the FL III licences that stood in the name of Mrs. Baby Mathew @ Rosily issued to Thripunithura Tourist Home and Kottavathil Restaurant, Thripunithura without her written consent. The petitioner has also prayed for a decree directing defendants 2 and 3 to pay future mesne profits from plaint B schedule property at the rate of Rs. 4,00,000/ - per annum with effect from 5.1.2015.

(2.) The plaint proceeds on the averment that plaint schedule properties belonged to late Baby Mathew @ Rosily, who is none other than the mother of the plaintiff and the defendants and on her death it devolved on them. Along with the plaint the petitioner filed I.A. No. 438 of 2015 for an interim order of injunction restraining the defendants from alienating, encumbering or creating any third party rights in the petition A schedule property, which is same as the plaint B schedule property, and from transferring the two FL III licences to the name of the first respondent or anyone else pending disposal of the suit. In the interlocutory application, which was presented on 27.1.2015, the trial court passed an ad interim order of injunction on 29.1.2015 whereby the trial court restrained the defendants from alienating, encumbering or creating any third party rights in the plaint B schedule property. An ad interim order restraining the respondents from transferring the two FL III licences was not granted. The application now stands posted to 16.2.2015. The appellant has filed this appeal seeking an interim order of injunction restraining the respondents from transferring the FL III licences referred to in the plaint. The appellant is also aggrieved by the failure of the court below to communicate the fact that an order of injunction has been passed by it to the Sub Registrars Offices at Thripunithura, Maradu, Mulamthuruthy and Kuthiyathodu.

(3.) We heard Sri M.S. Narayanan, learned counsel appearing for the petitioner and Sri T.B. Thankappan, learned counsel appearing for respondents 1 and 2. Respondents 3 and 4 have not been served notwithstanding the fact that notice was attempted to be served by special messenger, for the reason that they are at present not in India. The plaint proceeds on the assumption that Smt. Baby Mathew @ Rosily died intestate. It is on this basis that the appellant has prayed for an interim order of injunction in relation to the renewal of the FL III licences referred to above. Respondents 1 and 2 have filed a counter affidavit dated 3.2.2015 in answer to the averments in I.A. No. 133 of 2015 filed in this appeal and produced along with it a copy of the registered Will dated 12.3.2013 stated to have been executed by late Baby Mathew @ Rosily. It is contended that as per the said Will, the right to exploit the FL III licences has been bequeathed to the first respondent. The first respondent has also contended that a few days prior to the execution of the Will, as per a settlement deed registered as document No. 519 of 2013 of SRO, Mulamthuruthy 26.67 acres of land with the building therein was settled on the plaintiff. The first defendant has also averred that the late testator was exploiting the bar licences till 31.3.2014, that thereafter in accordance with the policy of the Government the testator had submitted an application to get FL -11 licences issued in respect of the two hotels on 31.12.2014 along with necessary documents and the prescribed fee, that it was thereafter that the testator passed away on 4.1.2015 and that upon the testator's death, the first respondent has submitted an application for the issuance of the FL -11 licences in her name, treating the application filed by the testator as her application. The deponent has also averred that the appellant and the first respondent were heard by the Excise Officials and on coming to know about the Will in the course of such proceedings, the suit has been filed on the averment that the mother died intestate. The deponent has stated that in view of the Will executed by her mother, she alone is entitled to get the FL -11 licences issued.