IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 3RD JUNE 2009 / 13TH JYAISHTA 1931 RSA.No. 134 of 2009() --------------------- AS.9/2005 of PRL.SUB COURT,IRINJALAKUDA OS.397/2002 of MUNSIFF COURT, KODUNGALLUR .................... APPELLANTS/RESPONDENTS 1 TO 8/PLAINTIFFS ------------------------------------------------------------ 1. P.G.RADHAKRISHNAN, AGED 73 YEARS, S/O.PALLIPARAMBIL PARUKUTTY AMMA, METHALA VILLAGE, NOW RESIDING AT 100, SUPREME ENCLAVE, MAYOOR VIHAR I, NEW DELHI. 2. P.G.GOPINATHAN, S/O.PALLIPARAMBIL PARUKUTTY AMMA, NOW ADDRESS, 301, PALLAV TOWERS, NEAR PARITHOSH COMPLEX, NEW CITY LIGHT AREA, PARLEY POINT, SURAT, GUJARATH. 3. LEELA, AGED 65 YEARS, D/O.PALLIPARAMBIL PARUKUTTY AMMA, & W/O.K.BHASKARAN NAIR, 'ARCHANA', YMCA CROSS ROAD, KOZHIKODE. 4. USHA, D/O.LEELA, (GRAND D/O.PALLIPARAMBIL PARUKUTTY AMMA), 'ARCHANA', YMCA CROSS ROAD, KOZHIKODE. 5. P.RAJEEV, AGED 38 YEARS, S/O.LEELA, PALLIPARAMBIL, 'ARCHANA', YMCA CROSS ROAD, KOZHIKODE. 6. MANI P.MENON, S/O.PALLIPARAMBIL SAROJINI AMMA, METHALA VILLAGE, KODUNGALLUR TALUK, NOW ADDRESS A9/2, KRISHNA SAGAR APARTMENTS, KARTHIKEYAPURAM, MADIPPAKATH, CHENNAI, TAMILNADU. 7. VASANTHAPRABHU, AGED 50 YEARS, D/O.PALLIPARAMBIL SAROJINI AMMA, NOW ADDRESS 701, MAYOOR VASANTHALEELA COMPLEX, GODBHANDAR ROAD, TANE, MUMBAI, MAHARASHTRA. 8. SREEKUMAR, AGED 46 YEARS, S/O.PALLIPARAMBIL MALATHI AMMA, B3, SOURABHYA APARTMENTS, KOTTAPURAM, THRISSUR. BY ADV. SRI.T.R.RAVI SRI.P.S.MURALI RESPONDENT: APPELLANT & 9TH RESPONDENT/DEFENDANTS ---------------------------------------------------- 1. LATHIKA, AGED 42 YEARS, D/O.PALLIPARAMBIL MALATHI AMMA, DILKUSH, THIRUVANCHIKULAM DESOM, METHALA VILLAGE, KODUNGALLUR TALUK. 2. P.G.NANDAKUMAR, UAE, AJMAN, LUTTA MARBLE INDUSTRIES, P.B.NO.2086 (SUMA, SULTHANPET, PALAKKAT PIN 678 001. ADV. SRI.K.S.BHARATHAN FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 134 of 2009 ---------------------------------------- Dated this the 3rd day of June, 2009 JUDGMENT The second appeal is directed against the decree and judgment in A.S. No. 9/2005 on the file of the Sub Court Irinjalakuda which arises from the decree and judgment in O.S. No.347/2002 on the file of the Munsiff, Court Kodungallur. The suit is for partition. The parties hereinafter referred to as plaintiffs and defendants as arrayed in the suit. The trial court decreed the suit. A preliminary decree for partition is passed declaring the plaintiffs' right over 8/10 th share in the plaint schedule property and each of the defendant is entitled to 1/10 share of the plaint schedule property . 2. The 1st defendant filed appeal against the preliminary decree. The limited contention raised before the lower appellate court is that the trial court erred in not finding that 20 Cents is not partible and the trial court did not allot the house in the share of the 1st defendant as an equitable relief. After considering the evidence on record,the lower appellate court observed that on the ground of equity an attempt can be made to set apart the house in the 1/10 th share to be allotted to the 1st defendant , or the value of the house will be included in the partition and the 1st defendant is entitled to get the house on paying the ovelty amount. The lower appellate court modified the preliminary decree to the above said R.S.A. No. 134 of 2009 -2- extent. 3. The learned counsel for the plaintiffs submitted that the ground of equity ought not have been considered by the lower appellate court while considering the legality of the preliminary decree passed by the trial court. 4. On a reading of Paragraph 10 of the judgment I find that the lower appellate court did not grant any equity in favour of the 1st defendant. The only observation is that an attempt can be made to set apart the house in the 1/ 10 th share to be allotted to the 1st defendant. The lower appellate court ought have ordered that the trial court to consider this question at the time of passing the final decree instead of such an observation before passing the final decree by the trial court. I think that the lower appellate court expressed its own wish that if possible the house may be allotted to the share of the 1st defendant. This matter has to be considered in detail by the trial court while passing the final decree on the basis of a new Commissioner's report. 5. Therefore it is a matter for consideration by the trial court after getting the Commissioner's report and other contentions to be raised by the respective parties. No grounds are made out by the plaintiffs to interfere with the decrees and judgments passed by the courts below to invoke Section 100 of the C.P.C. Therefore the appeal fails and accordingly dismissed with the observations made above. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A. No. 134 of 2009 ---------------------------- JUDGMENT 3rd June, 2009