IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 25TH MARCH 2009 / 4TH CHAITHRA 1931 Mat.Appeal.No. 239 of 2008(C) ---------------------------- OP.436/2006 of FAMILY COURT, MALAPPURAM .................... PETITIONER(S): APPELLANT ------------------------ KOLOTHUMTHODY MUSTHAFFA, AGED 47 YEARS, VEERAMUNNI, THAITHODIKA, KUNIYIL, KEEZHUPARAMBU, AMSOM, ERNAD TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.K.SHIBILI NAHA SMT.A.LOWSY RESPONDENT(S): --------------- YAKKIPPARAMBAN PATHUMMA, AGED 32 YEARS, D/O.MARAKKARUTTY, THAITHODIKA, NELLARU, CHEKKOD AMSOM, ERNAD TALUK, MALAPPURAM DISTRICT. THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 25/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & C.T.RAVIKUMAR, JJ. ------------------------------------ Mat.Appeal No.239 of 2008 ------------------------------------- Dated this the 25th day of March, 2009 JUDGMENT BASANT, J. Appellant is the respondent in a suit/petition for partition filed before the Family Court. By the impugned order, a preliminary decree has been passed directing that the petition scheduled property be divided into 2 and one share allotted to the respondent/petitioner. The appellant/respondent and the respondent/petitioner were spouses. Their marital tie has now been dissolved. There are children born in the wedlock and it is submitted at the Bar that the children are residing with the appellant herein. 2. The preliminary decree for partition only directs partition of half rights of the respondent herein in the property. Her rights are not disputed. 3. What then is the challenge in this appeal ? The learned counsel for the appellant submits that if attempt to physically divide the property were attempted it would cause Mat.Appeal No.239 of 2008 2 great hardship, inconvenience and loss. Equity demands that partition should not be by allotment of different portions of the same property to the appellant and the respondent. These are contentions to be raised in the final decree for partition and we are satisfied that there is no merit in the challenge against the preliminary decree for partition. Even accepting all the contentions of the appellant, the right of the respondent herein to get half rights in the property is not disputed. How equitably the partition is to be effected is the only concern raised in this appeal. Those contentions are to be raised in the final decree proceedings when the court attempts to effect partition actually. 4. This appeal is accordingly dismissed. We make it clear that the option of the appellant to raise contentions about the manner in which an equitable partition is to be attempted before the court in the final decree proceedings shall remain unfettered by the dismissal of this appeal. (R.BASANT, JUDGE) (C.T.RAVIKUMAR, JUDGE) rtr/-