IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA No. 117 of 1993()
1. V.P.NABEESUMMA
... Petitioner
Vs
1. KAKKOTTKATH SARAUMMA
... Respondent
For Petitioner :SRI.M.P.ASHOK KUMAR,K.V.SOHAN
For Respondent :SRI.P.G.K.WARRIER,K.K.RAVIDRANATH
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :23/03/2007
O R D E R
M.SASIDHARAN NAMBIAR,J.
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S.A. NO.117 OF 1993
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Dated this the 23rd day of March, 2007
JUDGMENT
First defendant in O.S.315/1985 is the
appellant. Respondents 1 to 6 are the plaintiffs
and the other respondents the other defendants.
Suit was filed for partition and separation of the
shares of the plaintiffs. The property sought to
be partitioned is the property obtained by Ibrahim
under Ext.A1 marupat, which was bequeathed by
Ibrahim under Ext.B1 will. Item No.1 therein is
the plaint schedule property. It is the property
which was covered under Ext.A1 marupat. The
property is available for partition was not
disputed by any of the parties. The dispute at the
time of trial was with regard to the special
rights, because of the covenants in Ext.B1 Will,
which according to plaintiffs is binding and which
according to defendants is not binding. The trial
court found that covenants are not binding and
S.A.117/93 2
entire 1.24 acres in R.S.No.77/1 consisting of
plots A, B and D in Ext.C1 plan are to be divided
into six equal shares and plaintiffs are to be
allotted two shares. The decree and judgment were
challenged before Sub Court, Payyannur in
A.S.87/1988 by plaintiffs in A.S.87/1988 and first
defendant in A.S.79/1989. Learned single Judge
dismissed A.S.79/1989 holding that the convenants
in Ext.B1 Will are not valid and the property is
available for partition. A.S.87/1988 was allowed
modifying the preliminary decree to the effect that
the property available for partition is plots A and
C in Ext.C1 plan. First defendant is challenging
the modified preliminary decree in the second
appeal.
2. The real dispute between the parties was
with regard to the actual identity and location of
the property to be divided. There is no dispute
with regard to the shares. Commissioner submitted
Ext.C2 report and C1 plan. Commissioner has shown
plaint schedule property as plots A to F. The
S.A.117/93 3
Commissioner identified plot A as the property
covered under Ext.A1 marupat. Ext.C1 report shows
that when Commissioner inspected the property,
both plaintiffs and defendants admitted that plot B
which lies to the north of plot A is also part of
the property covered under Ext.A1 marupat and is
available for partition. So also when the
Commissioner inspected the property , 5th plaintiff
who was examined as PW1 on behalf of all the
plaintiffs, submitted before the Commissioner that
plot D which lies to the west of the rainwater
channel is also available for partition as part of
Ext.A1 property. It is on that basis the trial
court granted a decree for partition of plot A, B
and D. The Appellate Court excluded plot B and D
from the property to be divided on the basis that
Commissioner identified only plot A and C as the
property covered under Ext.A1 and B1. The dispute
is whether the identification made by the
Commissioner is correct and whether the property
which lies to the east namely , plot D, plot E and
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plot F are properties obtained by Ibrahim under
Ext.A1 marupat and bequeathed under Ext.B1.
Plaintiffs contended that the property which lies
to the east of the property covered under Ext.A1
and B1 were obtained by Kannan Nair under Ext.A3
marupat and was later assigned in favour of Moideen
and was purchased by the father Mammad and under
Ext.A7 purchase certificate was also obtained and
therefore the said property is not available for
partition.
3.The argument of learned counsel appearing for
appellant is that the property is to be identified
not with reference to the extent or kole
measurement but with regard to the boundaries and
if so identified, the entire plots A,B,C,D,E and F
forms part of the property obtained under Ext.A1.
Learned counsel appearing for respondents argued
that the Commissioner identified the property
correctly and therefore only plot A is available
for partition.
4. On hearing learned counsel appearing for
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appellant and respondents, it is clear that there
is no dispute with regard to the availability of
Ext.A1 property which was later bequeathed under
Ext.B1, for partition among the plaintiffs and
defendants. The extent available for partition
need not be decided in the preliminary decree, as
that is a question which can be decided in the
final decree. Therefore interest of justice will
be met, if the finding of courts below with regard
to the extent of the property to be divided is set
aside and that question is left open to be decided
in the final decree application. It is made clear
that in the final decree application, Court has to
fix the property obtained under Ext.A1 which was
bequeathed as item No.1 under Ext.B1. The
identification of the property shall not be
restricted to the kole measurements. While
identifying the property, the boundaries cannot be
ignored. The court has also to decide whether the
property claimed for division forms part of Exts.A3
and A4. After fixing the actual extent,
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properties are to be divided in accordance with the
preliminary decree.
Second appeal is therefore allowed in part.
The preliminary decree passed by learned Munsiff
and confirmed by learned Sub Judge are confirmed
subject to the following modification. The
property available for partition is the property
covered under Ext.A1 marupat and bequeathed under
item No.1 of Ext.B1 Will. In the final decree
application the exact identity, extent and
location of the property is to be fixed as stated
earlier. Thereafter the property is to be divided
into six equal shares as provided in the
preliminary decree.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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S.A..NO.117 /93
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JUDGMENT
23rd March,2006