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M.A.RONALD, S/O.LATE M.J.ANTONY versus M.A.JOISY, D/O.LATE M.J.ANTONY

High Court of Kerala

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M.A.RONALD, S/O.LATE M.J.ANTONY v. M.A.JOISY, D/O.LATE M.J.ANTONY - RSA No. 589 of 2007 [2007] RD-KL 13910 (24 July 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

RSA No. 589 of 2007()

1. M.A.RONALD, S/O.LATE M.J.ANTONY,
... Petitioner

Vs

1. M.A.JOISY, D/O.LATE M.J.ANTONY,
... Respondent

2. STELLA PHILOMINA JAC0B, W/O. S.V.JACOB,

3. M.A.IGNATIUS, S/O.LATE M.J.ANTONY,

For Petitioner :SRI.O.RAMACHANDRAN NAMBIAR

For Respondent : No Appearance

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

Dated :24/07/2007

O R D E R

M.SASIDHARAN NAMBIAR, J.

........................................... R.S.A.No. 589 OF 2007 ............................................

DATED THIS THE 24th DAY OF JULY, 2007



JUDGMENT

The first defendant in O.S.210 of 2003 on the file of Additional Munsiff Court, Kozhikode is the appellant. Respondent is the plaintiff and other respondents, other defendants. The plaint A schedule property comprising a house and the adjacent property was directed to be divided in the preliminary decree passed by learned Munsiff but it was provided that at the time of effecting partition, as far as possible, the buidling therein is to be alloted to the share of the first defendant on the ground of equity. First respondent challenged the decree and judgment before Sub Court, Kozhikode in A.S.230 of 2004. Learned Sub Judge allowed the appeal finding that the fact that first respondent is having a house at Coimbatore is not a ground to allot the residential house to the appellant herein and the question is to be worked out in the final decree as provided under the partition Act. It is challenged in the second appeal.

2. Learned counsel appearing for the appellant and first RSA 589/2007 2 respondent/plaintiff were heard. The fact that plaint schedule property is available for partition is not in dispute. The only question is how the property is to be divided. When first appellant contended that the building is to be divided, trial court finding that first respondent has got a house at Coimbatore, directed to allot the house to the appellant. First appellate court interfered with that holding that if at all the question is to be worked out as provided under the partition Act.

3. On hearing learned counsel appearing for appellant and first respondent, I do not find any substantial question of law involved in the appeal. The question to whom the building is to be alloted and whether it could be physically divided in between the parties are all to be worked out in the final decree proceedings. In fact at the time of passing preliminary decree courts below is not decide the question of equity, as it is to be worked out in the final decree proceedings. It is made clear that in the final decree proceedings, court has explored the possibility of dividing the property in between the sharers and providing owelty amount if possible and if not auction the property in between the sharers, and if that is not feasible can RSA 589/2007 3 auction the property in public and divide the value.

M.SASIDHARAN NAMBIAR, JUDGE

lgk/-


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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