The court upheld the preliminary decree for partition while limiting the shares of certain defendants, emphasizing the need for resolution of the plaintiff's share before final decree.

JUDGMENT :

1. Defendants 4 and 5 in OS 257/2012 on the file of the 1^st Additional Subordinate Judge's Court, Thrissur are the appellants. For the purpose of convenience the parties are hereafter referred to as per their rank before the trial court.

2. The plaintiff Thankamani filed the about Suit for partition. Defendants 1 to 3 are her children and defendants 4 and 5 are the wife and minor son of her predeceased son Rajan. In the suit there are three items of properties, namely, plaint 'A', 'B' and 'C schedules. As per the plaint, plaint 'A' schedule item Nos.1 to 4 were purchased by the plaintiff's husband Ramakrishnan as per various documents and item Nos.5 and 6 were obtained by him as per partition deed No.1396/1977. Plaint 'B' schedule was obtained by Late Rajan, as per partition deed No.1396/1977. Plaint 'C' schedule property was purchased by deceased Rajan along with the 2^nd defendant Renjan. Ramakrishnan died intestate on 19.11.1986 and Rajan died intestate on 1.11.2007. According to the plaintiff, on the death of Ramakrishnan plaint 'A' schedule property devolved upon the plaintiff, defendants 1 to 3 and Rajan. Further according to the plaintiff, on the death of Rajan plaint 'B' schedule property and his share in plaint 'A' and 'C' schedules devolved upon the plaintiff and defendants 4 and 5. It was in the above context that she preferred the Suit for partition.

3. Defendants 1 to 3 filed written statement admitting the plaint claim. Defendants 4 and 5 filed written statement admitting that plaint 'A' schedule property is liable to be partitioned. However, according to them, plaint 'B' schedule is not partible, as the said property originally belonged to Rajan, the husband of the 4^th defendant and son of the 5^th defendant. Further according to them, plaint 'C' schedule items 3, 4 and 5 were purchased by Rajan using the amount received from the 4^th defendant. Therefore, it is contended that plaint 'C' schedule items 3, 4 and 5 are also not partible.

4. The evidence in the case consists of the oral testimony of the 2^nd defendant as DW1 and Exts.B1 to B8. No evidence was adduced by the plaintiff and defendants 4 and 5. Defendants 4 and 5 did not even cross- examined DW1. Therefore, in the light of the evidence on record, the trial Court found that the derivation of title pleaded in the plaint is true and that there is no merits in the claim raised by defendants 4 and 5. Accordingly, the trial court decreed the Suit and a preliminary decree was passed as per the following terms :

(a) Plaint 'A' schedule property shall be divided into 15 equal shares. Plaintiff and defendant Nos.1 to 3 is allotted 4/15 shares each and defendant Nos.4 and 5 are together entitled to get 2/15 shares.

(b) Plaint 'B' schedule property shall be divided into 3 equal shares. Plaintiff is entitled to get 1/3^rd share and defendant Nos.4 and 5 are each entitled to get 1/3^rd share.

(c) Plaint 'C' schedule property shall be divided into 6 equal shares plaintiff and defendant Nos.4 and 5 are each entitiled to get 1/6^th share each and 2^nd defendant is entitiled to get 3/6 share.

(d) The share shall be allotted to defendants on payment of requisite court fee.

(e) Any of the parties can apply for passing of final decree in which event an advocate commissioner shall be appointed for partition of property by metes and bounds on the ground.

(f) The party who produces the stamp paper for engrossing the final decree can realise the proportionate share from other sharers.

(g) Equity and reservation shall be considered at the final decree stage.

(h) The cost of the suit shall come out of the estate.

(i) Suit is adjourned sine-die.

5. Aggrieved by the above preliminary decree, defendants 4 and 5 preferred this appeal. Now the point that arises for consideration is the following:

Whether the impugned preliminary decree passed by the trial court calls for any interference in the light of the grounds raised in the appeal ?

6. Heard Sri. M.R. Venugopal, the learned counsel for the a