IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 32118 of 2007(Y)
1. SEELAS, AGED 75, S/O MASILLAMANI,
... Petitioner
2. AMMUKUTTY, AGED 72 YEARS,
Vs
1. LEELA KUMARI, D/O YONA, AGED 35,
... Respondent
2. SREE KUMARI, AGED 36,
3. SUNDARI, W/O GABRIEL,
4. BABY, D/O SUNDARI,
5. SANTHA, D/O SUNDARI,
6. LILLY, D/O SUNDARI,
7. RABI, S/O GABRIEL,
8. MANIYAN, S/O CHELLAMMA,
9. RAJU, S/O CHELLAMMA,
10. MARIYAMMA, AGED 70,
11. SANTHI, AGED 40,
12. PRAMEELA, AGED 38,
13. SASI, AGED 36,
14. GEETHA, AGED 34,
15. PRASAD, AGED 32,
For Petitioner :SRI.R.T.PRADEEP
For Respondent :SRI.R.S.KALKURA
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :05/08/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
-----------------------------
W.P.(C).No. 32118 OF 2007
--------------------------
Dated this the 5th day of August 2009
-------------------------------------
JUDGMENT
The Writ petition is filed by the
plaintiff in a suit for partition against an order
passed on their application to determine the
availability of the properties for partition in
view of the objections raised by some of the
defendants that suit property is not available for
partition, by appointing an advocate commission.
Such an application was moved even before a
preliminary decree was passed in the suit
determining the rights of the parties over the suit
property scheduled in the plaint. The learned
Munsiff after considering the merit of the
application dismissed it by Ext.P5 order.
Propriety and correctness of that order is
W.P.(C).No. 32118 OF 2009
impeached in the writ petition invoking the
supervisory jurisdiction vested with this court
under Article 227 of the Constitution of India.
2. I heard the learned counsel for the
petitioner and also the 10th respondent. Learned
counsel for the petitioner submitted that, in view
of the contentions raised by some of the defendants
in the suit that the property sought for partition
is covered by a mortgage holding the application
for commission was filed to determine and exclude
that mortgage holding so as to proceed with the
suit in respect of the rest of the property. So
much so, the application for commission for
determination of the property after excluding the
mortgage holding is essential for granting a
preliminary decree in the suit is the submission of
the counsel. I am not impressed by the submission
of the counsel. Even on the submission made by the
W.P.(C).No. 32118 OF 2009
counsel, it is evident, the whole suit property as
scheduled may not be available for partition. It
is for the plaintiff to specify the property in
respect of which shares of the parties are to be
determined before passing of a preliminary decree.
The court is not expected to and further it should
not proceed with an enquiry as to the identity of
the property in the suit before adjudicating the
right of the parties for partition and passing of a
preliminary decree. That is a matter to be
determined at a later stage. There is no
impropriety or illegality in Ext.P5 order passed by
the court below. Writ petition is dismissed.
Sd/-
S.S.SATHEESACHANDRAN,
JUDGE
//TRUE COPY//
P.A TO JUDGE
vdv