IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 36047 of 2008(N)
1. KUMARAN, S/O.LATE KRISHNAN,
... Petitioner
Vs
1. KUNHAN, S/O.KRISHNAN,
... Respondent
2. KOPPU,
3. CHANDRASEKHARAN, S/O.DO.DO.
4. VASUDEVAN.C.,
5. PRABHAKARAQN.C.,
6. SAROJINI, W/O.VELAYUDHAN, THECHERI
For Petitioner :SRI.SANTHEEP ANKARATH
For Respondent :SRI.K.P.SUDHEER
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :05/03/2009
O R D E R
M. SASIDHARAN NAMBIAR, J.
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W.P.(C).No. 36047 OF 2008
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Dated this the 5th day of March, 2009
J U D G M E N T
Petitioner is the third defendant and the third
petitioner in I.A.168 of 2004, an application for passing a final
decree in accordance with the preliminary decree in O.S.142 of
1989 on the file of Munsiff Court, Pattambi. As per the
preliminary decree, plaint schedule property is to be divided into
seven shares and plaintiff is to be allotted one share. In the final
decree application, a commission was appointed to divide the
property in accordance with the preliminary decree. The
commissioner submitted a report to the effect that it is not
possible to divide the property into seven equal shares. Fourth
defendant filed I.A. 156 of 2007 for a direction to auction the
property in between the sharers. As per Ext.P2 order, learned
Munsiff directed the commissioner to value the property so that
it could be auctioned between the sharers for a better price.
Ext.P3, I.A.681 of 2007 was filed by respondents 2 and 4 to 13
for a direction to the commissioner to allot their shares together
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so that only 1/7th share due to third respondent, the remaining
share, need alone be separated. It was contended that in that
case, the property could be divided in between the sharers.
Under Ext.P4 order, the petition was dismissed holding that
commissioner has reported that it is not possible to divide the
property. This petition is filed under Article 227 of Constitution
of India challenging Ext.P4 order.
2. Learned counsel appearing for petitioner and learned
counsel appearing for respondents were heard.
3. As per the preliminary decree the properties are to be
divided into seven equal shares and one such share is to be
allotted to the plaintiff. The prayer now raised by respondents 2
and 4 to 13 is that only the 1/7th share due to the third
respondent need be separated and the remaining shares could
be allotted as one block as the shares of the remaining sharers
and if so the property could be divided.
4. Under Ext.P2 order, learned Munsiff had already
directed the commissioner to value the property. In such
circumstances, a direction could be issued to the commissioner
to find out the feasibility of separating 1/7th share due to third
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respondent so that an auction in between the sharers could be
avoided as the remaining 6/7 shares could be retained as one
plot. The question whether the property could be so divided
equitably is a matter to be decided by the Munsiff on the
materials before the Court.
In such circumstances the writ petition is allowed.
Munsiff, Pattambi is directed to direct the commissioner, who
was appointed to divide the property, to report whether it is
possible to divide the property equitably and fairly by separating
1/7th share due to the third respondent alone, if the other
sharers are prepared for the same. The question whether such
division is possible or not is to be decided by the Munsiff.
M. SASIDHARAN NAMBIAR, JUDGE
okb