IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 28TH AUGUST 2009 / 6TH BHADRA 1931 RFA.No. 510 of 2009() --------------------- OS.10/1971 of SUB COURT, OTTAPPALAM .................... APPELLANT (2ND RESPONDENT/3RD DEFENDANT): KRISHNAN NAMBOODIRI, S/O.SAVITHRI ANTHERJANAM, KUMARAMPULAKKAL MANAKKAL CHERUKUDANGAD AMSOM, PALLIPPURAM DESOM, OTTAPALAM TALUK. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR SMT.VANDANA MENON RESPONDENTS: PETITIONER & RESPONDENTS 4,5,7,9,11,12,14 TO 28/ (R1, R3, R5 R8, R10, R13 DIED) 1. DAMODHARAN NAMBOODIRI, S/O.LATE NARAYANAN NAMBOODIRI, KUMARAMPULAKKAL MANAKKAL, CHERUKUDANGAD AMSOM, PALLIPPURAM DESOM, OTTAPALAM TALUK. 2. SAVITHRI ANTHERJANAM, (R4) D/O. -DO- -DO- 3. VASUDEVAN NAMBOODIRI,(R5) S/O. -DO- -DO-. 4. NARAYANAN NAMBOODIRI,(R7) S/O. -DO- -DO- . 5. LEELA ANTHERJANAM, W/O.LATE NARAYANAN NAMBOODIRI, R/AT -DO- -DO-. 6. SREEDEVI @ AKAYIL THAMBURAN,(R11) W/O.VASUDEVAN NAMBOODIRIPPAD, VENGATTUR MANAKKAL, KOTHACHIRA AMSOM, AND DESOM, OTTAPALAM TALUK. 7. SAVITHRI ANTHERJANAM, (R12) W/O.KRISHNAN NAMBOODIRI, PANAMPATTA MANAKKAL, PULASSERY AMSOM, MANNENGODE DESOM, OTTAPALAM TALUK. 8. RUDRAN @ RAVI NAMBOODIRI,(R14) S/O.LATE VALIYA RAMAN NAMBOODIRI, RESIDING AT R.F.A. No. 510/2009 : 2 : KADAVALLUR VILLAGE, KADAVALLUR DESOM, THALAPPILLY TALUK. 9. P.M.SAVITHRI, D/O.LATE -DO-, R/AT -DO- (R15) 10. KRISHNAN NAMBOODIRI, S/O. -DO-, R/AT -DO (R16) 11. P.M.VASUDEVAN NAMBOODIRI, S/O. -DO-, R/AT -DO- (R17) 12. RAMAN NAMBOODIRI, S/O. -DO-, R/AT, -DO- (R18) 13. RAMANI, (R19) D/O.RAMAN NAMBOODIRI, R/AT, -DO- 14. P.R.RAMANARAYANA PRASAD, (R20) THRIKKARIYUR AMSOM, DESOM, KOTTAYAM DISTRICT. 15. UMADEVI @ BINDU, (R21) RESIDING AT -DO- -DO- 16. UMADEVI ANTHERJANAM, (Suppl. R22) D/O.SIVARAMAN NAMBOODIRI, KIZHAKKINIYATH MANAKKAL, ANAKKARA AMSOM, PARUMBALAM DESOM, OTTAPALAM TALUK. 17. RUGMINI @ THANKAM, (Suppl. R23) W/O.LATE PURUSHOTHAMAN NAMBOODIRI, KUMARAMPULAKKAL MANAKKAL, CHERUKUDANGAD AMSOM, PALLIPPURAM DESOM, OTTAPALAM TALUK. 18. HAREESH, S/O.RUGMINI @ THANKAM, (Suppl. R24) RESIDING AT -DO- -DO-. 19. DEEPA, D/O. -DO-, (Suppl. R25) RESIDING AT PANDIKKAD AMSOM, DESOM, ERANAD TALUK. 20. NARAYANAN NAMBOODIRI, (Suppl. R26) LR of R6 H/O.LATE THANKAM @ SREEDEVI, NHATTUVELA MANAKKAL, MANGALAM AMSOM, MODAPPAKKAD DESOM, OTTAPALAM TALUK. 21. PRADEEP, (Suppl. R27) S/O.LATE THANKAM @ SREEDEVI, R/AT. -DO- -DO- 22. PRAMOD, S/O.LATE THANKAM @ SREEDEVI, (Suppl. R28) R/AT -DO- , NHATTUVELA MANAKKAL. THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 28/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. -------------------------------------------------- R.F.A. No. 510 of 2009 ---------------------------------------------------- Dated this the 28th day of August, 2009. JUDGMENT The 3rd defendant in O.S No. 10 of 1971 on the file of the Sub Court, Ottapalam is the appellant in this appeal. He challenges the judgment and decree dated 31.03.2009 passed by that court in the suit for partition. There was 29 items to be partitioned. The preliminary decree directs division of suit property into 19 equal shares and allotment of 1/19 shares to the plaintiff, 9/19 shares to defendants 1 to 8 jointly, 6/19 shares to defendants 10, 12 to 14 jointly and 3/19 shares to the 16th defendant. According to the appellant, the share that will be due to defendants 1 to 8 including the appellant herein, works out to 1020/2280 shares. 2. The main grievance of the appellant is that when objections to the report and share list dated 21.01.2008 submitted by the commissioner deputed in the final decree proceedings have not been disposed of, the court below charged the appellant and other defendants with the liability to bear the R.F.A. No. 510/2009 : 2 : value of the non-judicial stamp papers as if the final decree has been passed and has become final. In the light of certain contradictory statements in the judgment under appeal, the report of the learned Subordinate Judge was sought. As per report dated 26.08.2009, the Subordinate Judge has reported as follows:- “In view of the observation in Para 10 of the final decree application 752/91 in O.S 10/71 this Court waited for the order in W.P.C No. 9287/09 which was preferred challenging the finding of this Court regarding allotment of share to D2 to D4 and D6 to D8. The order was received in this Court on 13.07.2009 setting aside allotment and with a direction to consider the matter afresh. Thereafter opportunity was given to the parties to file objection to the Commission Report and Account regarding allotment of shares. The 8 th defendant filed I.A.136/09 to remit the report and account to the commissioner and the same is now posted to 15.09.09 for filing counter. D3 filed I.A.80/09 to set aside the report and account. The IA is posted to 15.09.2009 for counter of the respondents. Without disposing these applications and considering the objection the final decree cannot be passed. D3 has also filed I.A.81/09 to cross examine the Commissioner. The petition was allowed as per order dt. 25.08.09. Only after disposing the IA's namely the I.A.80/09, the application to set aside the Commission report and I.A.136/09 the application to remit the commission report the I.A.752/91 IN O.S.10/71 can be disposed of. This Court will take all efforts to dispose the application as early as possible.” R.F.A. No. 510/2009 : 3 : Thus, the learned Subordinate Judge has clarified that without disposing of the interlocutory application and considering the objections, the final decree cannot be passed. If so, the appellant or any of the defendants could not be charged with the value of the non-judicial stamp papers for embossing the final decree which question will arise only after passing of the final decree. This appeal is accordingly dismissed in limine directing the court below to dispose of the final decree application, namely, I.A. No. 752 of 1991 only after considering the objection dated 29.01.2008 filed by the appellant and others to the report dated 21.01.2008 referred to in paragraph 6 of the impugned judgment and after giving all the parties concerned an opportunity of being heard. Dated this the 28th day of August, 2009. V. RAMKUMAR, JUDGE. rv R.F.A. No. 510/2009 : 4 :