High Court Kerala High Court

Jayalakshmi vs Vinayakukmar on 10 February, 2009

Kerala High Court
Jayalakshmi vs Vinayakukmar on 10 February, 2009
       

  

  

 
 
  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.
          ===========================
          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withdrawn.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