IN THE HIGH COURT OF KERALA AT ERNAKULAM
RFA.No. 345 of 2005(E)
1. JAYALAKSHMI, AGED 66 YEARS OF
... Petitioner
Vs
1. VINAYAKUKMAR, S/O.THIRUNILATHU @
... Respondent
2. ANITHA, D/O. PRASANNA,
3. VINITHA, D/O. PRASANNA,
4. PRASANNA, D/O. THIRUNILATHU @
5. KESAVAN, S/O. THIRUNILATHU @
6. LAKSHMY, W/O. POZHATHU UNNI @ KUNJUNNI,
7. RANJITH, S/O. LAKSHMY, -DO- -DO-.
8. RATHI, D/O. LAKSHMY, -DO- -DO-.
9. RAKESH, S/O. LAKSHMY, -DO- -DO-.
10. ANIL KUMAR, S/O. JAYALAKSHMY,
11. SUNANDA, D/O. JAYALAKSHMY, -DO- -DO-.
12. INDIRA, D/O.JAYALAKSHMY, -DO- -DO-.
For Petitioner :SRI.D.ANIL KUMAR
For Respondent :SRI.K.V.JAYACHANDRAN
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :10/02/2009
O R D E R
M.SASIDHARAN NAMBIAR,J.
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R.F.A NO. 345 OF 2005
===========================
Dated this the 10th day of February,2009
JUDGMENT
First defendant in O.S.46/1984 on the file
of Sub Court, Thrissur is the appellant.
Respondents are the plaintiffs and the other
defendants. A preliminary decree for partition
was passed in O.S.46/1984 on 28.11.1989.
Though the preliminary decree was challenged by
filing an appeal the appeal was later
withdrawn. The preliminary decree thus became
final. I.A.289/1996 was filed for passing a
final decree in accordance with the preliminary
decree. Learned Sub Judge appointed a
Commission to divide the property in accordance
with the preliminary decree. The Commissioner
divided the properties and allotted different
sharers and submitted the report. Under the
order dated 5.4.2005, learned Sub Judge passed
RFA345/2005 2
a final decree in accordance with Ext.C1 report and
Ext.C2 plan submitted by the Commissioner. It is
challenged in this appeal.
2. Case of the appellant is that subsequent
to the preliminary decree, there was a settlement
between the sharers and as agreed to by the parties
a partition was entered into whereunder the
properties were divided and though defendants 7 to
12 are not parties to the partition deed,
properties were allotted to them also and therefore
learned Sub Judge should have accepted the
partition deed and should not have passed a final
decree in accordance with Ext.C1 report and Ext.C2
plan and therefore the final decree is to be set
aside.
3. Learned counsel appearing for appellant and
contesting respondents were heard.
4. On hearing the learned counsel appearing
for appellant, I find no reason to interfere with
the final decree. It is admitted that the
RFA345/2005 3
preliminary decree passed by the Sub Judge in
O.S.46/1984, though challenged by filing an appeal
which was later withdrawn, has become final.
Unless the sharers together settled the dispute and
executed a partition deed, there cannot be a
modification of the preliminary decree. By the act
of some of the sharers, excluding other sharers,
dividing the property in between them and allotting
a portion of the property in favour of those
sharers who did not join the partition deed, the
preliminary decree cannot be modified as canvassed
by the appellant.
5. It is admitted case that in the partition
deed executed by some of the sharers, subsequent to
the preliminary decree, defendants 7 to 12 are not
parties. Hence whatever be the settlement between
the other sharers, it is not binding on defendants.
Defendants 7 to 12 and they entitled to get their
shares ignoring the partition deed as found in the
preliminary decree. Their right cannot be defeated
RFA345/2005 4
by an agreement between the other sharers to allot
the properties according to their whims and
fancies. When there cannot be equitable division by
allotting the properties as the share of defendants
7 to 12, there cannot be equitable division in
accordance with the partition deed. It is more so
when defendants 7 to 12 do not accept the said
division. Without the properties to be allotted
to defendants 7 to 12, there cannot be a division
of the properties in accordance with the partition
deed. In such circumstances learned Sub Judge was
fully correct in ignoring that partition and
dividing the property. Nothing was pointed out to
interfere with the allotment made by Commissioner
or the final decree passed by the Sub Judge
accepting the report and plan. In such
circumstance there is no merit in the appeal and
it is dismissed.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
RFA345/2005 5
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
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JUDGMENT
SEPTEMBER,2006