IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 19TH SEPTEMBER 2011 / 28TH BHADRA 1933 OP(C).No. 1467 of 2011(O) -------------------------------- PETITIONER -------------- SURESH, S/O. LATE SUKUMARAN, KAITHAVALAPPIL HOUSE, NAYARAMBALAM MURI, NAYARAMBALAM.P.O., KOCHI TALUK, ERNAKULAM DIST. BY ADV. SRI.M.P.RAMNATH RESPONDENT(S): --------------------- 1. PUSHPAVALLI, W/O. JAYAKRISHNAN, VAZHAPPALLI HOUSE, EDAMATTOM DESOM CHAVAKKAD TALUK, THRISSUR DISTRICT - 680 506. 2. USHA, W/O. SAJEEV.K., NEDIYARA HOUSE, KURICHILAKODE, KODANADU.P.O.,PERUMBAVOOR(VIA) ERNAKULAM DISTRICT - 683 542. 3. GEETHA, W/O. SABU, PATHIYARA HOUSE, VACHAKKAL, EDAVANAKKADU, ERNAKULAM DISTRICT - 682 505. R1 BY ADV. SRI. MANOJ R. NAIR R2 BY ADV. SRI. K. MAHADEVAN THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 19/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs O.P.(C). NO. 1467/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PRELIMINARY DECREE DATED 31/10/2007 IN O.S. NO.74/2006 SUB COURT KOCHI. P2: COPY OF DEATH CERTIFICATE ISSUED BY COCHIN CORPORATION IN RESPECT OF THANKAM SUKUMARAN. P3: COPY OF THE WILL DATED 04/06/2008 EXECUTED BY THANKAM AND REGISTERED AS 122/III/2008 S.R.O. NJARAKKAL. P4: COPY OF FINAL DECREE APPLICATION I.A. NO.1795/2008 IN O.S. NO.74/2006 SUBCOURT KOCHI. P5: COPY OF THE PETITION TO PASS SUPPLEMENTARY PRELIMINARY DECREE FILED BY PETITIONER AS I.A. 938/2010 IN O.S.74/2006 SUB COURT KOCHI. P6: COPY OF THE CERTIFIED COPY OF B DIARY PROCEEDINGS IN I.A. NO.1795/2008 (FINAL DECREE PROCEEDINGS) IN O.S.74/2006. P7: COPY OF THE CERTIFIED COPY OF B DAIRY PROCEEDINGS IN I.A.938/2010 (SUPPLEMENTARY DECREE PROCEEDINGS) IN O.S.74/2006 SUBCOURT KOCHI. P8: COPY OF THE OBJECTIONS FILED BY 1ST RESPONDENT PUSHPAVALLI TO THE I.A.938/2010 (SUPPLEMENTARY PRELIMINARY DECREE PROCEEDINGS) IN O.S.74/2006. P9: COPY OF THE PROOF AFFIDAVIT DATED 01/11/2010 FILED BY THE PETITIONER HEREIN IN I.A. NO. 938/2010 IN O.S.74/2006 (SUPPLEMENTARY PRELIMINARY DECREE PROCEEDINGS) SUB COURT KOCHI. P10: COPY OF THE ABEYANCE APPLICATION I.A. 419/2011 IN I.A.1795/2008 IN O.S.74/2006 SUB COURT KOCHI FILED ON 30/03/2011 RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.1467 of 2011 --------------------------------------- Dated this 19th day of September, 2011 JUDGMENT All the respondents are served. Respondents 1 and 2 appear through counsel. 2. First defendant in O.S.No.74 of 2006 of the Court of learned Sub Judge, Kochi is the petitioner requesting a direction that only after adjudication of Ext.P5, application (I.A.No.938 of 2010) the Advocate Commissioner may be directed to measure and demarcate the property as directed in the preliminary decree (in the suit for partition). 3. Ext.P1 is the preliminary decree passed by the learned Sub Judge in respect of ten items. The 3rd defendant was given 1/5th share in the said property. It is not disputed that after passing of Ext.P1, preliminary decree and before respondents 1 and 2 filed Ext.P4, application for passing final decree, the 3rd defendant expired. Respondents 1 and 2 in Ext.P4, application claimed a share in the share allotted to the deceased 3rd defendant on the premise that she died intestate. Petitioner filed Ext.P5, application for passing a supplementary preliminary decree and for augmentation of shares on that claim that the O.P(C).No.1467 of 2011 -: 2 :- deceased 3rd defendant had bequeathed her share to the petitioner as per Ext.P3, Will. First respondent filed Ext.P8, objection disputing execution of the said Will. The matter is pending consideration before the learned Sub Judge. At that time, learned Sub Judge appointed an Advocate Commissioner to measure the property and make the allotment pursuant to Ext.P1, preliminary decree. Petitioner filed Ext.P10, application to keep in abeyance the warrant of commission till Ext.P5, application (for passing supplementary preliminary decree) is disposed of. According to the petitioner, Ext.P10, application is also being adjourned. In the meantime the Advocate Commissioner has given notice to the petitioner regarding his intention to inspect the property, measure and make the allotment as per Ext.P1, preliminary decree. Hence this original petition. 4. Learned counsel for petitioner contends that without disposing of Ext.P5, application the Advocate Commissioner may not be permitted to make measurement and allotment pursuant to Ext.P1, preliminary decree, since if ultimately Ext.P5, application is allowed the report and plan would become worthless. O.P(C).No.1467 of 2011 -: 3 :- 5. Learned counsel for first respondent has submitted that first respondent is placed in very impecunious condition on account of the share not being delivered to her. Learned counsel submitted that even the preliminary decree did not provide for share of profits due to the first respondent and in the circumstance proceedings before the learned Sub Judge may prolong endlessly. Learned counsel requested that learned Sub Judge may be directed to dispose of the pending applications within a time frame to be fixed by this Court. 6. Having heard counsel on both sides I am inclined to think that the proceedings are to be expedited but, I do not consider it appropriate to fix a time frame for disposal of applications since several contingencies may arise in the course of trial which may require time for the learned Sub Judge to dispose of the applications. But proceedings are to be expedited. 7. Since there is dispute as to whom share of the deceased 3rd defendant has to go, that dispute has to be resolved. Before that disputed is resolved, there is no point in the Advocate Commissioner submitting report and plan making allotment as per Ext.P1, preliminary decree. Therefore, inspection by the Advocate Commissioner for the purpose of allotment of shares as O.P(C).No.1467 of 2011 -: 4 :- per Ext.P1, preliminary decree should wait until Ext.P5, application is disposed of by the learned Sub Judge. Resultantly this original petition is disposed of as follows: (i) It is directed that proceedings of Advocate Commissioner for allotment of shares as per Ext.P1, preliminary decree will stand in abeyance until Ext.P5, application is disposed of by the learned Sub Judge. (ii) Learned Sub Judge is directed to dispose of Ext.P5, application as expeditiously as possible having regard to the grievance of first respondent. Sd/- (THOMAS P JOSEPH, JUDGE) Sbna/-