IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA No. 589 of 2007()
1. M.A.RONALD, S/O.LATE M.J.ANTONY,
... Petitioner
Vs
1. M.A.JOISY, D/O.LATE M.J.ANTONY,
... Respondent
2. STELLA PHILOMINA JAC0B, W/O. S.V.JACOB,
3. M.A.IGNATIUS, S/O.LATE M.J.ANTONY,
For Petitioner :SRI.O.RAMACHANDRAN NAMBIAR
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :24/07/2007
O R D E R
M.SASIDHARAN NAMBIAR, J.
...........................................
R.S.A.No. 589 OF 2007
............................................
DATED THIS THE 24th DAY OF JULY, 2007
JUDGMENT
The first defendant in O.S.210 of 2003 on the file of
Additional Munsiff Court, Kozhikode is the appellant.
Respondent is the plaintiff and other respondents, other
defendants. The plaint A schedule property comprising a house
and the adjacent property was directed to be divided in the
preliminary decree passed by learned Munsiff but it was
provided that at the time of effecting partition, as far as possible,
the buidling therein is to be alloted to the share of the first
defendant on the ground of equity. First respondent challenged
the decree and judgment before Sub Court, Kozhikode in A.S.230
of 2004. Learned Sub Judge allowed the appeal finding that the
fact that first respondent is having a house at Coimbatore is not
a ground to allot the residential house to the appellant herein
and the question is to be worked out in the final decree as
provided under the partition Act. It is challenged in the second
appeal.
2. Learned counsel appearing for the appellant and first
RSA 589/2007 2
respondent/plaintiff were heard. The fact that plaint schedule
property is available for partition is not in dispute. The only
question is how the property is to be divided. When first
appellant contended that the building is to be divided, trial
court finding that first respondent has got a house at
Coimbatore, directed to allot the house to the appellant. First
appellate court interfered with that holding that if at all the
question is to be worked out as provided under the partition Act.
3. On hearing learned counsel appearing for appellant and
first respondent, I do not find any substantial question of law
involved in the appeal. The question to whom the building is to
be alloted and whether it could be physically divided in between
the parties are all to be worked out in the final decree
proceedings. In fact at the time of passing preliminary decree
courts below is not decide the question of equity, as it is to be
worked out in the final decree proceedings. It is made clear that
in the final decree proceedings, court has explored the
possibility of dividing the property in between the sharers and
providing owelty amount if possible and if not auction the
property in between the sharers, and if that is not feasible can
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auction the property in public and divide the value.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-