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HIGH COURT OF KERALA
P.SOMARAJAN, J
SUDHA K.N., – Appellant
Versus
JAYAKRISHNAN.T.V – Respondent
RFA/158/2021
Partition - Property Sharing - N/A - The court reaffirmed the importance of adhering to the preliminary decree for property partition, emphasizing metes and bounds in allotting shares, leading to the remand of the case for proper division.
Fact of the Case:
The plaintiff initiated a partition suit to secure a 1/3rd share of the property, but the final decree failed to allocate the specified share as mandated in the preliminary decree, allotting an undivided joint share instead.
Finding of the Court:
The court determined that the final decree violated the preliminary decree by not dividing the property according to established shares, necessitating reversal and remanding for accurate partitioning.
Issues: Whether the final decree incorrectly allocated property share contrary to the preliminary decree's directives.
Ratio Decidendi: The judgment stressed the necessity of adhering to preliminary decrees in partition suits, ensuring property is divided by metes and bounds as stated in the initial ruling.
Final Decision: The final decree is set aside and the case is remanded for proper partition.
JUDGMENT
In furtherance of the preliminary decree, a final decree was passed at the instance of second defendant and the share of the plaintiff was allotted in the plan annexed to the decree which comes to an extent of 8.34 cents with notations E,F,G,H,E plots. The remaining area, A,B,C,D,E,F,A ie., plot No.A having an extent of 16.69 cents was allotted jointly to the defendant.
2. A final decree was passed totally against the mandate under the preliminary decree, firstly on the ground that the building situated in the property was not divided by metes and bounds for the purpose of giving 1/3rd share of plaintiff by metes and bounds. It is a suit for partition initiated by the plaintiff for getting 1/3rd share over the property by metes and bounds. In the final decree, no such property was given to the plaintiff dividing the property by 1/3rd share by metes and bounds. On the other hand, a joint plot was given jointly to the plaintiff and the first defendant overlooking the preliminary decree. Hence, the final decree is hereby set aside. The matter is remanded back to the court below for the purpose of passing a decree in accordance with the preliminary decree by separating 1/3rd share of the plaintiff. The defendants are at liberty to apply for passing supplementary decree for getting their separate share divided and allotted.
The appeal is allowed in part accordingly. The parties shall appear before the the trial court on
25/7/2022 to proceed further in the matter.
Sd/-
P.SOMARAJAN JUDGE
APPENDIX OF RFA 158/2021 PETITIONER ANNEXURES Annexure I CERTIFIED COPY OF THE ORDER IN AS 36/2020 DATED 23.03.2021 OF THE ADDITIONAL DISTRICT JUDGE I, THALASSERY.
Annexure 2 TRUE COPY OF THE APPEAL MEMORANDUM ALONG WITH DOCKET SHEETS IN AS 36/2020 FILED BEFORE THE ADDITIONAL DISTRICT COURT I, THALASSERY DATED
04.11.2020.
Annexure 3 TRUE COPY OF THE DEATH CERTIFICATE OF DECEASED JAYARAM.T.V.
Annexure 4 TRUE COPY OF THE TREATMENT RECORDS OF DECEASED JAYARAM.T.V.
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