IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 2ND JULY 2010 / 11TH ASHADHA 1932 RFA.No. 261 of 2003(C) ---------------------- OS.375/2001 of I ADDL.SUB COURT,ERNAKULAM .................... APPELLANT/DEFENDANT --------------------------------------- BENNY FRANCIS, AGED 35 YEARS S/O. LATE FRANCIS, ELLICKAL HOUSE, HIGH COURT JUNCTION, ERNAKULAM, COCHIN-31. BY ADV. SRI.T.O.XAVIER RESPONDENTS/PLAINTIFFS ------------------------- 1. BABU FRANCIS, AGED 32 YEARS, S/O. LATE FRANCIS, ELLICKAL HOUSE, CHEMBUMUKKU, B.M.C. P.O., KAKKANAD. 2. BEENA THOMAS, AGED 33 YEARS D/O. LATE FRANCIS, MULLOTH HOUSE, ELAMKULAM, FATHIMA CHURCH ROAD, ERNAKULAM. ADV. SRI.V.V.SURENDRAN SRI.BABU KARUKAPADATH THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 02/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. --------------------------- R.F.A No. 261 OF 2003 -------------------------- Dated this the 2nd day of July, 2010 J U D G M E N T Thottathil B.Radhakrishnan, J. The appellant is the sole defendant in a suit for partition. Parties are the children of one Francis. When the plaintiffs sued for partition of the only item scheduled to the plaint, the defendant contended that yet another item was available for partition as part of the estate of Francis. He also challenged a Will executed by the late mother of the parties. The court below upheld the Will and ordered partition. Though the question of the sustainability of the Will is also taken up in the appeal, the only question argued is that the suit was bad for partial partition. The defendant who also had the opportunity to bring any available property also to the suit by including it in the written statement and schedule it thereto did not chose to do so. Having not done it, we do not find any illegality in the preliminary decree passed by the court below. All that needs to be done at this time is to preserve any right that the defendant/appellant may have to seek partition of the properties, if RFA No.261/03 2 any left out of partition, subject of course, to the finality of all findings as arrived at by the court below. Subject to the aforesaid, the appeal is dismissed. THOTTATHIL B.RADHAKRISHNAN (JUDGE) S.S.SATHEESACHANDRAN (JUDGE) vps RFA No.261/03 3 RFA No.261/03 4