IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 29TH JANUARY 2010 / 9TH MAGHA 1931 CRP.No. 45 of 2010() -------------------- Against the order dated 16-10-2009 in I.A. No. 742/2009 in I.A. 117/1985 in O.S. No. 263/1980 on the files of the Sub Court, Palakkad REVN. PETITIONER(S): IST RESPONDENT/3RD PLAINTIFF ------------------------------------------------- GOPALAN UNNI, S/O.LATE NAKU, THANNISSERY AMSOM, PALAKKAD DISTRICT. BY ADV. SRI.BECHU KURIAN THOMAS RESPONDENT(S): PETITIONER & RESPONDENTS 2 TO 4 /ADDL.PLAINTIFF -------------------------------------------------------------- 1. PREMA SREENIVASAN, W/O.LATE SREENIVASAN,1/340,MARATHODIKA, THANISSERY AMSOM,PALAKKAD DISTRICT. 2. RAMADAS S/O.LATE ANDI,"LAKSHMI" MISSION COMPOUND, ROBINSON ROAD, PALAKKAD. 3. RADHAKRISHNAN @ DIVAKARAN, S/O.LATE ANDI, THOTTINGAL HOUSE, THANNISSERY POST, PALAKKAD. 4. BHAGAVALDAS,S/O.RAMADAS, "LAKSHMI", MISSION COMPOUND, ROBINSON ROAD, PALAKKAD. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * C.R.P. NO. 45 of 2010 * * * * * * * * * * * * * * * * * * Dated: 29-01-2010 JUDGMENT The revision petitioner who is the 3rd plaintiff in O.S. No. 263 of 1980 on the file of the Sub Court, Palakkad challenges the supplementary preliminary decree passed by the court below on an application filed by the widow of the 2nd plaintiff Sreenivasan alleging that the revision petitioner and other members of his family are harassing and preventing her from enjoying the income from the plaint schedule properties. 2. The aforementioned suit filed in the year 1980 was one for partition and separate possession of the plaintiff's half share over 20 items of immovable properties situated in Palakkad. The first plaintiff Nagu and his two sons by name Sreenivasan and Gopalan Unni were the three plaintiffs who instituted the suit. Nagu had executed a will bequeathing his right in favour of his wife the 5th defendant who also died after executing the will bequeathing her rights in favour of her surviving two sons. On 29-9-1984, the court below passed a preliminary decree as prayed for. As per the preliminary decree Sreenivasan, the second plaintiff and Gopalan Unni, the 3rd plaintiff were together entitled to half share over the plaint schedule property. Sreenivasan died C.R.P. NO. 45 of 2010 -:2:- and his widow Prema Sreenivasan was impleaded in the final decree proceedings. She filed I.A. No. 742 of 2009 in the final decree application (filed way back in the year 1985) under Order XXVI Rule 10 read with Sec. 151 C.P.C. praying for the passing of a supplementary preliminary decree for her half share over the shares allotted to the plaintiffs. She alleged that the revision petitioner (3rd plaintiff - Gopalan Unni) who is the surviving alottee and his family members were harassing her and obstructing her from enjoying the income from her properties. Eventhough the revision petitioner opposed the prayer contending inter alia that there could not be any supplementary preliminary decree passed inter se between the sharers and that their remedy was to file a separate suit, the court below placing reliance upon the decisions in 1987 (2) KLT 924, 1990 (1) KLT 29 and AIR 1967 SC 1470 passed a preliminary decree allotting half of the half share due to the plaintiffs over the suit properties to the first respondent herein namely Prema Sreenivasan with her half share of profits and holding that she is entitled to get her share separated in the final decree proceedings. It is the said supplementary preliminary decree which is assailed in this revision. 3. The learned counsel for the revision petitioner re- iterated before me the very same contentions advanced by the 3rd plaintiff/revision petitioner before the court below. By passing the supplementary preliminary decree, the court below has only C.R.P. NO. 45 of 2010 -:3:- directed the widow of the 2nd plaintiff to separate herself from the shares jointly allotted to plaintiffs 2 and 3 who have inherited the entire half share over the plaintiff items by virtue of the will executed by the first plaintiff Nagu and his widow the 5th defendant both of whom are not alive. I therefore, do not find any illegality in the supplementary preliminary decree passed by the court below. It was not at all necessary for the first respondent to file a separate suit or include the other properties of the joint family. The attempt of the revision petitioner is to drive the poor widow from pillar to post. The second plaintiff who was entitled to one half share over the half share in respect of the suit properties could not enjoy the fruits of the preliminary decree during his life time. His wife who is s the first respondent herein also was not allowed to enjoy the income from the property by other surviving co-owner, the revision petitioner. That necessitated the application for the passing of a supplementary preliminary decree. I do not find any error of jurisdiction or any illegality or irregularity in the supplementary preliminary decree passed by the Court below. This Revision Petition is accordingly dismissed. V. RAMKUMAR, (JUDGE) C.R.P. NO. 45 of 2010 -:4:- ani.