IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 5TH APRIL 2011 / 15TH CHAITHRA 1933 OP(C).No. 1369 of 2011(O) ---------------------------------- AGAISNT THE ORDER DATED 14.03.2011 IN IA NO. 353/2011 IN AS.30/2010 of SUB COURT,KOTTARAKKARA .................... PETITIONER/RESPONDENT ----------------------------------------- HAISTING.R., S/O. RAMACHANDRAN NAIR, PAYYAMPALLIL HOUSE, ARKANNOOR, ELAMADU VILLAGE, KOLLAM DISTRICT. BY ADV. SRI.LATHEESH SEBASTIAN RESPONDENT/ PETITIONER ----------------------------------------- REMA BHAI, PAYYAMPALLIL HOUSE, ARKANNOOR, ELAMADU VILLAGE, KOLLAM DISTRICT. PIN-691001. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SMT K.T.SANKARAN, J. ------------------------------ O.P(C).No.1369 OF 2011 ------------------------------ Dated this the 5 th day of April, 2011 JUDGMENT The respondent, the mother of the petitioner instituted O.S.No.574 of 2008 on the file of the Munsiff's Court, Kottarakkara against the petitioner for partition claiming one half share in the plaint schedule properties. A preliminary decree was passed on 20.12.2008. Final decree was passed in the case on 19.11.2009. In the preliminary decree and final decree proceedings there was no contest by the petitioner herein. However, he filed A.S.No.30 of 2010 before the Sub Court, Kottarakara challenging the final decree. 2. There are rubber trees and other yielding trees in the plaint schedule property. The mother says that she was not allowed to take income from the yielding trees. She alleged that she was assaulted by the son and the daughter-in-law. The O.P(C).No.1369 OF 2011 2 mother was constrained to file I.A.No.353 of 2011 for the following reliefs: “For the reasons stated in the accompanying affidavit it is most humbly prayed that this Honourable Court may be pleased to issue a commission to decide the quantum of income to be appropriated by both parties in the decree scheduled property. The commission may be directed to elucidate the following matters: i) Ascertain the total income from the decree scheduled property including the yield from the rubber trees, coconut trees and pepper wines in the property. ii) Divide the number of such trees and wines into two equal divisions so that income from each group is equal to one half of total income. iii) Ascertain any other matter deemed fit to be ascertained by the commissioner or as suggested by the petitioner.” 3. The petitioner herein filed objections. He offered to pay Rs.7,500/- per month to the mother as her share of income. 4. The court below allowed the application as per Ext.P8 order dated 14 th March, 2011, which is O.P(C).No.1369 OF 2011 3 under challenge in this Original Petition. 5. The learned counsel for the petitioner submitted that the petitioner is prepared to pay Rs.7,500/- to the mother so that he can be allowed to take the income from the entire property. To a query as to whether he is prepared to forfeit the right to take income if the mother is prepared to pay Rs.7,500/- per month, the counsel for the petitioner was not in a position to answer. The mother is entitled to one half share going by the preliminary decree and final decree. Though the final decree was passed unopposed, the son filed an appeal against the final decree and therefore, the mother could not get the final decree executed. She was prevented from taking yield from the rubber trees and other yielding trees. Therefore, she had no other alternative but to seek the assistance of the court in the manner she did in I.A.No.353 of 2011. The court below rightly allowed the application. There is no jurisdictional error or O.P(C).No.1369 OF 2011 4 error of law warranting interference. The Original Petition is without merit and it is accordingly, dismissed. K.T.SANKARAN, JUDGE. cms