IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 8TH NOVEMBER 2010 / 17TH KARTHIKA 1932 RFA.No. 521 of 2008() ---------------------------- OS.195/2006 of PRINCIPAL SUB COURT,ERNAKULAM .................... APPELLANT/ DEFENDANT ---------------------------------------- P.S.SABU, S/O.LATE SANKARAN, PATTUPARAMBIL HOUSE, VENNALA.P.O, VENNALA, ERNAKULAM. BY ADV. SRI.M.J.THOMAS RESPONDENT(S): PLAINTIFF --------------------------------------- MADHAVI SANKARAN, W/O.LATE SANKARAN, PATTUPARAMBIL HOUSE, NOW RESIDING AT KANNAMKULANGARA HOUSE, BOAT JETTY ROAD, FIROZ GANDHI LANE, VADUTHALA, COCHIN-31. R1 BY ADV. SRI.S.SREEKUMAR SRI.P.B.KRISHAN,CONCILIATOR THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 08/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss Thottathil B.Radhakrishnan & P.Bhavadasan, JJ. = = = = = = = = = = = = = = = = = = = = = = = = R.F.A.No.521 of 2008-E = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 8th day of November, 2010. Judgment Thottathil B.Radhakrishnan, J. 1.Defendant in a suit for partition is the appellant. He is the son of the plaintiff. 2.Late Sankaran and the plaintiff had two children; defendant and daughter Bindu. Sankaran died intestate. Suit property devolved on the plaintiff, defendant and Bindu in equal shares. The daughter Bindu released her share in favour of the plaintiff and defendant. Thus, the mother and son became the co-owners. The mother had to sue for partition, claiming equal rights. 3.Defendant pleaded that building was put up spending his funds and that the plaintiff was residing with the defendant and the income RFA521/08 -: 2 :- derived from the building was being given to the plaintiff. There is no cogent evidence regarding any loan availed or of expenditure incurred in that regard by the defendant. Under such circumstances, the title being not disputed, the suit for partition stands. 4.According to the appellant-defendant, even after the preliminary decree, there were distress actions by the financing institutions against the property and the defendant had paid off amounts to save the property from distress action. Obviously, this is a matter that could be taken care of in the final decree proceedings. The plaintiff's counsel also states that his client had also paid off amounts to the financing institutions. Obviously, therefore, both sides have claims of having spent funds to preserve the suit property pending the litigation. 5.In the aforesaid circumstances, while affirming the preliminary decree, we direct that the RFA521/08 -: 3 :- parties will be at liberty to move in the final decree proceedings for appropriate accounting regarding the expenditure incurred by either side to clear off the debts and preserve the suit property. The payments so made would also be reckoned by the court below for appropriate adjustments and orders to provide equitable allotment in the final decree proceedings. In the result, this appeal as against the preliminary decree is dismissed, subject to the directions issued herein above as regards the final decree proceedings. The court below will consider expediting the proceedings, having regard to the age of the plaintiff. No costs. Thottathil B.Radhakrishnan, Judge. P.Bhavadasan, Judge. Sha/0412