IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 20TH OCTOBER 2010 / 28TH ASWINA 1932 RFA.No. 125 of 2010(A) --------------------------------- [OS.NO.394/2007 OF I ADDL.SUB COURT, KOZHIKODE] .................... APPELLANTS/PLAINTIFFS: -------------------------------------- 1. SHEELA FERNANDEZ. W/O.EDWARD FERNANDEZ, MERCY COTTAGE, NEAR GOODS SHED, THAVAKKARA AMSOM DESOM, KANNUR. 2. SHARMILA FRANCIS, W/O.JEROLD FRANCIS, ROZY HOUSE, JAYANTHI ROAD, P.O.NALLALAM, KOZHIKODE 27, NALLALAM AMSOM DESOM. BY ADV. SRI.T.R.RAVI. RESPONDENT/PLAINTIFF: -------------------------------------- DENZIL RAJAN, S/O.ANSLAM, SELIN VILLA, VAZHUTHURUTHI ROAD, KACHERI AMSOM DESOM PO.ERANHIPALAM, KOZHIKODE. BY ADVS. SRI.A.RANJITH NARAYANAN, SRI.S.K.SAJU. THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 20/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. THOTTATHIL B.RADHAKRISHNAN & P. BHAVADASAN, JJ. ------------------------------------------- R.F.A.No.125 OF 2010 ------------------------------------------- Dated this the 20th day of October, 2010 JUDGMENT Thottathil B.Radhakrishnan, J. 1.This appeal arises from a preliminary decree passed in a suit for partition. The plaintiffs/appellants are the sisters of the respondent/defendant. Parties are Christians. The right of each among the parties to share, as found by the court below, is not in dispute. The court below has apparently directed allotment of the residential building to the defendant respondent by issuing the following as direction No.3 in the preliminary decree: “that the house in the plaint schedule property as far as practicable is to be allotted to the share of the defendant in the metes and bound partition”. This is the subject matter of the grievance of the appealing plaintiffs. RFA.125/10 2 2.The defendant had pleaded in his written statement that he had supported his sisters being married off and that it is he who expended funds for the construction of the building in question. However, he did not claim any special right in relation to the building. The court below did not frame any issue in that regard. There is really no adjudication as to whether the defendant had any special right for allotment of the building over and above what could be available in terms of metes and bounds partition. We understand the impugned direction as only meaning that there will be an attempt during the final decree proceedings to have the house alloted to the defendant. However, this could only be on the basis of appropriate valuation and any ovelty adjustments as may be necessary. 3. In the result, we modify the preliminary decree by re-framing direction No.3 as follows: RFA.125/10 3 “that the house in the plaint schedule property, as far as practicable, is to be alloted to the share of the defendant on the basis of valuation and metes and bounds, equitably, by making necessary ovelty adjustments, if necessary.” The impugned preliminary decree will stand modified accordingly. The appeal is allowed as above. No costs. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- P.BHAVADASAN, Judge. kkb.21/10.