IN THE HIGH COURT OF KERALA AT ERNAKULAM
RFA.No. 521 of 2008()
1. P.S.SABU, S/O.LATE SANKARAN,
... Petitioner
Vs
1. MADHAVAI SANKARAN, W/O.LATE SANKARAN,
... Respondent
For Petitioner :SRI.M.J.THOMAS
For Respondent :SRI.S.SREEKUMAR
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :08/11/2010
O R D E R
Thottathil B.Radhakrishnan
& P.Bhavadasan, JJ.
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R.F.A.No.521 of 2008-E
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Dated this the 8th day of November, 2010.
Judgment
Thottathil B.Radhakrishnan, J.
1.Defendant in a suit for partition is the
appellant. He is the son of the plaintiff.
2.Late Sankaran and the plaintiff had two children;
defendant and daughter Bindu. Sankaran died
intestate. Suit property devolved on the
plaintiff, defendant and Bindu in equal shares.
The daughter Bindu released her share in favour
of the plaintiff and defendant. Thus, the mother
and son became the co-owners. The mother had to
sue for partition, claiming equal rights.
3.Defendant pleaded that building was put up
spending his funds and that the plaintiff was
residing with the defendant and the income
RFA521/08 -: 2 :-
derived from the building was being given to the
plaintiff. There is no cogent evidence regarding
any loan availed or of expenditure incurred in
that regard by the defendant. Under such
circumstances, the title being not disputed, the
suit for partition stands.
4.According to the appellant-defendant, even after
the preliminary decree, there were distress
actions by the financing institutions against the
property and the defendant had paid off amounts
to save the property from distress action.
Obviously, this is a matter that could be taken
care of in the final decree proceedings. The
plaintiff’s counsel also states that his client
had also paid off amounts to the financing
institutions. Obviously, therefore, both sides
have claims of having spent funds to preserve the
suit property pending the litigation.
5.In the aforesaid circumstances, while affirming
the preliminary decree, we direct that the
RFA521/08 -: 3 :-
parties will be at liberty to move in the final
decree proceedings for appropriate accounting
regarding the expenditure incurred by either side
to clear off the debts and preserve the suit
property. The payments so made would also be
reckoned by the court below for appropriate
adjustments and orders to provide equitable
allotment in the final decree proceedings.
In the result, this appeal as against the
preliminary decree is dismissed, subject to the
directions issued herein above as regards the
final decree proceedings. The court below will
consider expediting the proceedings, having
regard to the age of the plaintiff. No costs.
Thottathil B.Radhakrishnan,
Judge.
P.Bhavadasan,
Judge.
Sha/0412