IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 10TH FEBRUARY 2009 / 21ST MAGHA 1930 RFA.No. 345 of 2005(E) ---------------------- AGAINST THE ORDER DATED 05/04/2005 IN IA.289/1996 IN OS.46/1984 of PRL.SUB COURT,THRISSUR .................... APPELLANT/2ND RESPONDENT/1ST DEFENDANT: ----------------------------------------------------------- JAYALAKSHMI, AGED 66 YEARS OF THIRUNILATH @ POZHATHUPARAMBIL KUNJI @ KAVAMMA, KANIMANGALAM VILLAGE DESOM, THRISSUR TALUK. BY ADV. SRI.D.ANIL KUMAR RESPONDENT(S): PTNRS.1TO3/DNFTS.7TO9 & RSPDTS.1&3 TO 10/DFNT.7 TO 9, PLAINTIFF & DEFENDANTS ----------------------------------------------------------------- 1. VINAYAKUKMAR, S/O.THIRUNILATHU @ POZHATHUPARAMBIL PRASANNA, KANIMANGALAM VILLAGE, DESOM, THRISSUR TALUK, NOW RESIDING AT VELLATTU, VENNALAKARA, EDAPPALLY SOUTH VILLAGE,KANAYANNOOR TALUK, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER SINKARA PANICKER. 2. ANITHA, D/O. PRASANNA, REP. BY POWER OF ATTORNEY HOLDER, SINKARA PANICKER, -DO- -DO-. 3. VINITHA, D/O. PRASANNA, REP. BY POWER OF ATTORNEY HOLDER, SINKARA PANICKER, -DO- -DO-. 4. PRASANNA, D/O. THIRUNILATHU @ POZHATHUPARAMBIL KUNJI @ KAVAMMA, KANIMANGALAM VILLAGE, DESOM, NOW RESIDING AT VELLATTU, VENNALAKARA, EDAPPALLY SOUTH VILLAGE, KANAYANNOOR TALUK. 5. KESAVAN, S/O. THIRUNILATHU @ POZHATHUPARAMBIL KUNJI @ KAVAMMA, NOW RESIDING AT AGENTIA COMMERCIAL MARITIME, POST BOX NO.22, VASCODAGAMA, GOVA. 6. LAKSHMY, W/O. POZHATHU UNNI @ KUNJUNNI, KANJANI VILLAGE, DESOM -DO-. 7. RANJITH, S/O. LAKSHMY, -DO- -DO-. 8. RATHI, D/O. LAKSHMY, -DO- -DO-. 9. RAKESH, S/O. LAKSHMY, -DO- -DO-. 10. ANIL KUMAR, S/O. JAYALAKSHMY, KANIMANGALAM VILLAGE, DESOM, THRISSUR TALUK. 11. SUNANDA, D/O. JAYALAKSHMY, -DO- -DO-. 12. INDIRA, D/O.JAYALAKSHMY, -DO- -DO-. ADV. SRI.K.V.JAYACHANDRAN FOR R7,8,9 SRI.P.K.RAVISANKAR FOR R10TO12 SRI.M.KRISHNAN NAIR FOR R4 SRI.RAJU V.MATHEW FOR R4 SRI.K.V.JAYACHANDRAN FOR R1-3 SRI.RAJU V.MATHEW FOR R1-3 SRI.SAJITH KUMAR KANGHINGHAT FOR R8 SRI.G.SREEKUMAR (CHELUR) FOR R8 SRI.SAJITH KUMAR KANGHINGHAT FOR R6 & R9 SRI.G.SREEKUMAR (CHELUR) FOR R6 & R9 THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 10/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.F.A NO. 345 OF 2005 =========================== Dated this the 10th day of February,2009 JUDGMENT First defendant in O.S.46/1984 on the file of Sub Court, Thrissur is the appellant. Respondents are the plaintiffs and the other defendants. A preliminary decree for partition was passed in O.S.46/1984 on 28.11.1989. Though the preliminary decree was challenged by filing an appeal the appeal was later withdrawn. The preliminary decree thus became final. I.A.289/1996 was filed for passing a final decree in accordance with the preliminary decree. Learned Sub Judge appointed a Commission to divide the property in accordance with the preliminary decree. The Commissioner divided the properties and allotted different sharers and submitted the report. Under the order dated 5.4.2005, learned Sub Judge passed RFA345/2005 2 a final decree in accordance with Ext.C1 report and Ext.C2 plan submitted by the Commissioner. It is challenged in this appeal. 2. Case of the appellant is that subsequent to the preliminary decree, there was a settlement between the sharers and as agreed to by the parties a partition was entered into whereunder the properties were divided and though defendants 7 to 12 are not parties to the partition deed, properties were allotted to them also and therefore learned Sub Judge should have accepted the partition deed and should not have passed a final decree in accordance with Ext.C1 report and Ext.C2 plan and therefore the final decree is to be set aside. 3. Learned counsel appearing for appellant and contesting respondents were heard. 4. On hearing the learned counsel appearing for appellant, I find no reason to interfere with the final decree. It is admitted that the RFA345/2005 3 preliminary decree passed by the Sub Judge in O.S.46/1984, though challenged by filing an appeal which was later withdrawn, has become final. Unless the sharers together settled the dispute and executed a partition deed, there cannot be a modification of the preliminary decree. By the act of some of the sharers, excluding other sharers, dividing the property in between them and allotting a portion of the property in favour of those sharers who did not join the partition deed, the preliminary decree cannot be modified as canvassed by the appellant. 5. It is admitted case that in the partition deed executed by some of the sharers, subsequent to the preliminary decree, defendants 7 to 12 are not parties. Hence whatever be the settlement between the other sharers, it is not binding on defendants. Defendants 7 to 12 and they entitled to get their shares ignoring the partition deed as found in the preliminary decree. Their right cannot be defeated RFA345/2005 4 by an agreement between the other sharers to allot the properties according to their whims and fancies. When there cannot be equitable division by allotting the properties as the share of defendants 7 to 12, there cannot be equitable division in accordance with the partition deed. It is more so when defendants 7 to 12 do not accept the said division. Without the properties to be allotted to defendants 7 to 12, there cannot be a division of the properties in accordance with the partition deed. In such circumstances learned Sub Judge was fully correct in ignoring that partition and dividing the property. Nothing was pointed out to interfere with the allotment made by Commissioner or the final decree passed by the Sub Judge accepting the report and plan. In such circumstance there is no merit in the appeal and it is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- RFA345/2005 5 M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006