Kerala High Court
Shahana vs Abdul Hameed [Delted]*
Author: Ashok Menon
Bench: K.Vinod Chandran, Ashok Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR. JUSTICE ASHOK MENON
TUESDAY, THE 27TH DAY OF FEBRUARY 2018 / 8TH PHALGUNA, 1939
WP(C).No. 149 of 2017(P)
------------------------
PETITIONER(S):
-------------
1 SHAHANA
D/O DAREEFA BEEVI, SHAHANA MANZIL, PALLICKAL VILLAGE
AND DESOM, PALLICKAL P.O.,
THIRUVANANTHAPURAM DISTRICT, PIN:695604.
2 SHIJI MOL
D/O DAREEFA BEEVI, SHAHANA MANZIL, PALLICKAL VILLAGE
AND DESOM, PALLICKA PO, THIRUVANANTHAPURAM DISTRICT
PIN:69604.
BY ADV.SRI.R.ANILKUMAR
RESPONDENT(S):
-------------
1. ABDUL HAMEED [DELTED]*
S/O KHADER PILLAI, KOCHIVILA VEEDU, PALLICKAL
VILLAGE AND DESOM, PALLICKAL P.O.,
THIRUVANANTHAPURAM DISTRICT, PIN:695604.
2. JAMALUDEEN,
S/O JAMALUDEEN, SHAIMA MANZIL, PALLICKAL PO,
THIRUVANANTHAPURAM DISTRICT, PIN:695604.
3. SHAHIDA BEEVI,
D/O MUSAIFA BEEVI, SHAIMA MANZIL, PALLICKAL PO,
THIRUVANANTHAPURAM DISTRICT, PIN:695604.
4. SHAIMA,
D/O SHAIDA BEEVI, SHAIMA MANZIL, PALLICKAL
VILLAGE AND DESOM, PALLICKAL PO,
THIRUVANANTHAPURAM DISTRICT, PIN:695604.
WP(C).No. 149 of 2017 (P)
-------------------------
2
5. SUB INSPECTOR OF POLICE
PALLICKAL POLICE STATION, PALLICKAL PO,
THIRUVANANTHAPURAM DISTRICT, PIN:695 604.
6. DEPUTY SUPERINTENDENT OF POLICE
ATTINGAL PO, PIN:695101.
*1ST RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE
PETITIONERS AS PER THE ORDER DATED 16-01-2018 IN I.A.882/2018
R3-R4 BY ADV. SMT.MINI GANGADHARAN
R5-R6 BY SR.GOVERNMENT PLEADER SRI.P.P.THAJUDHEEN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27-02-2018
ALONG WITH WP(C) NO.21039/2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C).No. 149 of 2017 (P)
-------------------------
APPENDIX
----------
PETITIONER(S)' EXHIBITS:
-----------------------
EXHIBIT P1: COPY OF THE ORDER IN IA NO.3477/2013 IN OS
NO.454/2013 DATED 26.11.2013.
EXHIBIT P2: COPY OF THE ORDER DATED 30.11.2015
IN IA NO.2191/2015 IN OS NO.454/2013 PASSED BY
MUNSIFF'S COURT, VARKALA.
EXHIBIT P3: COPY OF THE PETITION FILED BEFORE
THE 5TJH RESPONDENT DATED 25.11.2016.
EXHIBIT P4: COPY OF THE PETITION FILED BEFORE THE
6TH RESPONDENT ON 10.12.2016.
RESPONDENT(S)' EXHIBITS:
-----------------------
NIL
/TRUE COPY/
PA TO JUDGE
dkr
K.VINOD CHANDRAN & ASHOK MENON, JJ.
-------------------------------------------
W.P.(C) Nos. 149 and 21039 of 2017
-------------------------------------------
Dated this the 27th day of February, 2018
JUDGMENT
Ashok Menon, J.
The petitioners in W.P.(C) No.149/2017, who are the daughters of late 1st respondent, are before this court seeking police protection from the party respondents, including their father, step mother the 3rd respondent, and their step sister the 4 th respondent.
2. W.P.(C) No.21039/2017 is filed by the 3rd respondent in W.P.(C) No.149/2017 against the 1st petitioner herein, and her son, also for police protection. For the sake of convenience, the parties are referred to in accordance with their description in W.P.(C) No.149/2017, unless otherwise specified. The petitions are being disposed by a common Judgment.
3. The 1st petitioner claims that she is residing in the house bearing building No.X/1274 of Pallickal Panchayat, which was settled in their favour by her father, the 1st respondent. Mutation WP(C) Nos.149 & 21039 of 2017 2 was carried out. The 1st petitioner was in exclusive possession of the property. While so, the 1st respondent cancelled the settlement deed because of his strained relationship with the 1 st petitioner. O.S.No.454/2013 was filed before the Munsiff's Court, Varkala to prevent forcible eviction. Temporary injunction was obtained as per Ext.P1 order. The 1st respondent attempted to get the interim order vacated by filing an application, but the same was dismissed as per Ext.P2. Hence the injunction order in favour of the 1 st petitioner is still in force. The party respondents 2 to 4 are holding out threats to the life and property of the petitioners. The 1 st respondent had even assaulted the 1st petitioner. Exts.P3 and P4 complaints were filed before respondents 5 and 6. But no action has been taken so far, and therefore, the petitioners were constrained to approach this Court seeking protection to their life and property and to issue necessary direction to the police authorities.
4. The 1st respondent expired pending this petition and hence his name was deleted from the party array. Respondents 3 and 4 appeared and the 3rd respondent filed a counter-affidavit. She claims to be the wife of the deceased 1 st respondent. It is WP(C) Nos.149 & 21039 of 2017 3 stated that the property referred to in the petition was purchased by the deceased 1st respondent in the year 1985. Consequent to the death of his first wife, he married the 3rd respondent on 29-05-2015. He died of heart attack on 04-01-2017. It is stated that the petition was filed on 03-01-2017. Till then, the petitioners were residing elsewhere and they were let inside the house only because of the death of their father. It is stated that the 1 st petitioner and her husband had assaulted the 3 rd respondent on 07/04/2016 resulting in grievous hurt to them. Crime No.406/2016 was registered at Pallikkal Police Station for offences punishable under Sections 324, 326, 308 read with Section 34, I.P.C. The 1st respondent had filed O.S.No. 429/2016 before the Munsiff's Court, Varkala, for an injunction and also sought compensation from the 1st petitioner for the injuries caused to him. It is stated that the 1st respondent had executed a Will bequeathing his right over the disputed property in favour of the 3 rd respondent. The Will has come into effect on his demise.
5. It is further stated that consequent to the demise of her husband, the 3rd respondent and her daughter were seriously WP(C) Nos.149 & 21039 of 2017 4 assaulted by the 1st petitioner and her men. The 3rd respondent alleges that the petitioners and their henchmen are harassing them, by all possible means.
6. All the above mentioned facts in the counter-affidavit have been reiterated in W.P.(C) No.21039/2017 filed by the 3rd respondent. An interim order was also passed by this Court to ensure that there is no threat to the life of the petitioners and her daughter in W.P.(C) No.21039/2017. The documents pertaining to the marriage of the 3rd respondent with the deceased 1st respondent, the death certificate of the 1st respondent, copy of the plaint in O.S.No.479/2016 filed by the 1st respondent, are all produced along with W.P.(C) No.21039/2017. The 1st petitioner in W.P.(C) No.149/2017 and her son are respondents 5 and 6 in the petition filed by the 3rd respondent. A counter-affidavit is filed by respondents 5 and 6 in W.P.(C) No.21039/2017, reiterating their averments made in the petition filed in W.P.(C) No.149/2017.
7. The learned Senior Government Pleader and the Counsel appearing for the rival parties in the Writ Petitions were heard. Documents perused.
WP(C) Nos.149 & 21039 of 2017 5
8. It is evident from the pleadings that the 1 st respondent in W.P.(C) No.149/2017, had got married to the 3rd respondent therein, much against the wishes of the petitioners. He had also cancelled the settlement deed executed in favour of the 1 st petitioner and had thereafter, allegedly executed a Will in favour of his second wife. The dispute is mainly regarding the right to the property, which once belonged to the deceased 1st respondent. There are civil suits filed by both sides in which the civil court will have to adjudicate and determine the right of the parties over the disputed property. The right of the 1st petitioner based on the settlement deed, validity of its cancellation by the deceased 1st respondent and the consequent Will propounded by the 3 rd respondent, will require adjudication. Without deciding the rights of the parties, it may not be feasible for this Court to issue any positive direction to the police authorities to interfere. Hence we do not intend to issue any positive directions of police protection in either of the Writ Petitions. Leaving open the remedy of the parties concerned to determine their rights before a civil court of competent jurisdiction and with a direction to the police authorities to proceed in accordance with law WP(C) Nos.149 & 21039 of 2017 6 in case any complaint of a cognizable offence is filed by either of the parties, the Writ Petitions are dismissed. No costs.
K.VINOD CHANDRAN Judge ASHOK MENON Judge dkr