IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 6TH AUGUST 2010 / 15TH SRAVANA 1932 RFA.NO. 316 OF 2008() --------------------- {OS.515/2006 OF II ADDL.SUB COURT, ERNAKULAM} .................... APPELLANT(S): DEFENDANT K.K.SHANTHA AGED 47 YEARS, D/O. KUMARAN, RESIDING AT KONNOTH HOUSE, NEAR CINEMA THEATER MARADU, MARADU VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT BY ADV. SRI.T.MADHU SRI.D.M.SAJEEVAN RESPONDENT(S)/PLAINTIFFS: 1. SAJIMOL,AGED 41 YEARS, W/O. LATE VIJAYAN, RESIDING AT KONNOTH, MARADU, NOW RESIDING AT ALAZATH PARAMBIL HOUSE KADAVANTHRA, ELAMKULAM VILLAGE ,ERNAKULAM DISTRICT 2. SREEJA,AGED 14 YEARS,D/O. LATE VIJAYAN (MINOR) RESIDING AT KONNOTH, MARADU, NOW RESIDING AT ALAZATH PARAMBIL HOUSE KADAVANTHRA, ELAMKULAM VILLAGE ,ERNAKULAM DISTRICT REPRESENTED BY HER MOTHER AND GUARDIAN SAJIMOL,THE IST RESPONDENT HEREIN. 3. VISMAYA,AGED 12 YEARS, D/O. LATE VIJAYAN (MINOR) RESIDING AT KONNOTH, MARADU, NOW RESIDING AT ALAZATH PARAMBIL HOUSE KADAVANTHRA, ELAMKULAM VILLAGE ,ERNAKULAM DISTRICT REPRESENTED BY HER MOTHER AND GUARDIAN SAJIMOL,THE IST RESPONDENT HEREIN. ADVS. SRI.P.T.SEBASTIAN & SRI.K.M.SUBIAR THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 06/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ------------------------------------------------- R.F.A.No.316 of 2008 ------------------------------------------------- Dated this the 6th day of August, 2010 JUDGMENT THOTTATHIL B.RADHAKRISHNAN, J. This appeal is by the defendant in a suit for partition. The preliminary decree is under challenge. 2. The appealing defendant and her brother Vijayan jointly held an item of property. Vijayan died. Plaintiffs are the legal representatives of Vijayan. They sued for partition. There is no dispute regarding the succession or eligibility for share. The only contention taken is that the first plaintiff, the widow of Vijayan is a person of unsound mind and will not be able to take care of her share, if allotment is made in favour of minor children of Vijayan also. The first plaintiff Sajimol gave evidence as PW.1. The court heard her. There is no whisper in the evidence about any mental illness as regards the first plaintiff. The appealing defendant also did not invoke the provisions of R.F.A.No.316 of 2008 ::- 2 -:: Order XXXII Rule 15 Code of Civil Procedure requiring the court to conduct a preliminary enquiry into the mental status of the first plaintiff. The defendant had also pleaded that amounts that may be payable to the estate of deceased Vijayan is no more available, as that was spent off for his liability and in discharge of such liabilities. The court below found no evidence in that regard also. Accordingly, the court below passed an impugned preliminary decree by directing that provision for protecting the interest of the minor children shall be considered in the final decree proceedings. We find no reason whatsoever to interfere with the impugned decree. The appeal fails and the same is dismissed in limine. Sd/- (THOTTATHIL B.RADHAKRISHNAN) JUDGE Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy// P.S. to Judge.