IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 1ST FEBRUARY 2008 / 12TH MAGHA 1929 WP(C).No. 10449 of 2007(R) --------------------------------------- (OS.397/2000 OF PRINCIPAL SUB COURT,KOLLAM) .................... PETITIONER/(2ND PLAINTIFF): -------------------------------------------- NIRMALA, W/O.GOPALAKRISHNAN, CHIPPY VEEDU, THIRUNAKKARA, KOTTAYAM. BY ADV. SRI.ALEX N.MATHEW (KOLLAM), SRI.H.RAMANAN, SRI.JAMES JOSE. RESPONDENTS/ (3RD PLAINTIFF & DEFENDANTS 1 TO 6 & RESPONDETS 2 TO 4 IN I.A. 3161/2006) ------------------------------------------------------------------------------------------------------------------- 1. DEVI, HOUSE NO.30, RAMESWARAN NAGAR, KAIKULANGARA NORTH, KOLLAM-12. 2. JAYAMALA, T.R.BUILDING, KALLINKAL VEEDU, ANDAMUKKAM WARD, KOLLAM. 3. JAGANATHAN, DO. DO. 4. MAYA, D/O.CHELLAMMAL, XLV/915, AYYAPPA COLONY, KOTTAKKAKAM WARD, KOLLAM. 5. RENKANATHA REDDIYAR, S/O.MUTHUSWAMI REDDIYAR, KC XLV 974, DURGA NIVAS, KOTTAKKAKAM WARD, KOLLAM. 6. KUMARI, D/O.SAROJINI, KC XLV 914, AYYAPPA COLONY, KOTTAKKAKAM WARD, KOLLAM. W.P.(C). NO.10449/2007-R: 7. RUKMINI, D/O.CHELLAMMAL, CHANDRIKA, TC 21/501, MANAYIL PALLITHANAM, MANAKKAD, THIRUVANANTHAPURAM. 8. DASARATH SAIT, MC NO.2496, KRISHNA JEWELLERY, NEAR INDIAN BANK, MAIN ROAD, KOLLAM. 9. BOBAN, M.C.NO.2032, TTR BUILDING, NEAR INDIAN BANK, MAIN ROAD, KOLLAM. 10. SHEKHAR, MC NO.3124, SUNDARAM STUDIO, NEAR INDIAN BANK, MAIN ROAD, KOLLAM. BY ADV. SRI.S.SANTHOSH KUMAR, ADV. SRI.PRATHEESH.P. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/02/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.10449/2007-R: APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE PLAINT IN O.S. 397/2000 OF SUB COURT, KOLLAM. EXT.P.2: COPY OF THE JUDGMENT IN O.S. 397/2000. EXT.P.3: COPY OF THE DECREE IN O.2. 397/2000. EXT.P.4: COPY OF THE FINAL DECREE APPLICATION OF P.3. I.A. 1456/2006. EXT.P.5: COPY OF THE COMMISSION APPLICATION OF P.3. I.A. 1457/2006. EXT.P.6: COPY OF THE ORDER IN I.A. 1457/2006. EXT.P.7: COPY OF THE I.A. 3161/2006 FILED BY P.3. EXT.P.8: COPY OF THE ORDER IN I.A. 3161/2006. EXT.P.9: COPY OF THE I.A. 518/2007 FILED BY P.2. EXT.P.10: COUNTER AFFIDAVIT FILED BY THE P.2. IN I.A. 1457/2006. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// prv. M.N. KRISHNAN, J. = = = = = = = = = = = = = = W.P.C. NO. 10449 OF 2007 = = = = = = = = = = = = = = = Dated this the 1st day of February, 2008. J U D G M E N T This writ petition is preferred against the order of the Subordinate Judge, Kollam in I.A.1457/06 and I.A.3161/06. The Court allowed both the applications and appointed a Commissioner. I.A.1457/06 is an application for appointment of a Commissioner in the final decree application I.A.1456/06. 2. It has to be stated that as per the preliminary decree the plaintiffs are jointly set apart ¾ shares and it is contended by the 2nd plaintiff that the 3rd plaintiff alone is not entitled to file an application of this nature for separation of 1/4th shares in her property. This objection has not seen considered by the Court below. Therefore following directions are issued to the Court below; (1) The Court shall consider the preliminary objections raised in I.A.1456/07 with respect to the W.P.C 10449 OF 2007 -:2:- maintainability of the said petition and thereafter proceed to consider and dispose of I.A.1457/07 afresh. (2) Similarly, the Court below is also directed to give opportunity to the respondents in I.A.3161/06 to put forward their objections before disposal of the matter. (3) The first and foremost thing which the Court is to consider is regarding the maintainability of the final decree application filed by the 3rd plaintiff and only if it is maintainable to pass other orders which will have to follow. Therefore the orders under challenge are set aside and the matter is remanded back to the Court below for fresh consideration as indicated above. Parties are directed to appear before the Court below on 3.3.2008. The writ petition is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-