Claims of reservation of property in a partition must be made at the preliminary stage, with subsequent decisions based on equitable considerations during final decrees.

J U D G M E N T

This appeal is against the judgment and decree dated 31.1.2018 in A.S.No.283/2012 on the file of Subordinate Judge's Court, Kannur (hereinafter referred to as 'the first appellate court') challenging the judgment and decree dated 30.6.2011 in FDIA No.3503/2007 in O.S.No.684/1999 of the Additional Munsiff's Court, Kannur (hereinafter referred to as 'the trial court'). The appellant herein is the fifth respondent in FDIA No.3503/2007 and the respondents herein are petitioners 2 to 4, 6 to 13 in A.S.No.283/2012.

2. The suit was one for partition.

The trial court passed a preliminary decree for partition, which is as follows:-

1. that the plaint schedule property be divided into 5 equal shares and the plaintiffs along with defendant Nos.2 :-4-:

to 4 are jointly entitled to get separate possession of 2/5 shares therein;

2. that the first defendant is entitled to the remaining 3/5 shares in the plaint schedule property and her share need not be separately allotted unless and until she pays requisite court fee for separate allotment;

3. that the plaintiffs and defendants No.2 to 4 are entitled to get future mesne profits from the date of suit till they get separate possession of their share from the first defendant. The quantum of mesne profits is to be decided at the final decree stage;

4. that the question regarding the reservation of the house whether with or without valuation is left open to be decided in the final decree stage;

5. that the costs of the suit do come out of the estate; viz., plaintiff's cost Rs.2,144/- and first defendant's cost Rs.1,872/-;

6. that the parties who paid court fee are at liberty to apply for passing a final decree;

7. that the suit is adjourned sine die;”

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3. Thereafter the plaintiffs filed FDIA No.3503/2007 for passing a final decree. The trial court passed a final decree on 30.6.2011 as follows:-

1. that plot A in Ext.C2 plan is allotted to the share of plaintiff and defendant Nos.2 to 4;

2. that plot B house and well therein is allotted to the share of defendant No.1 in turn to respondent Nos.5 to 7;

3. that apart from the above allotment respondent Nos.5 to 7 shall pay an amount of Rs.31,137.60 to the plaintiff and defendant Nos.2 to 4 as owelty amount for equalization of share value. This amount shall be a charge over plot B in Ext.C2 plan till its realization;

4. that all the parties are directed to suffer their costs in accordance with their respective shares;

5. that Exts.C2 and C3 shall form part of the final decree;

6. deposit value of N.J.S. for engrossing final decree.

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4. The fifth respondent in FDIA filed an appeal before the first appellate court. The first appellate court dismissed the appeal confirming the final decree passed by the trial court.

5. Heard Sri.V.Prem Chand, the learned counsel for the appellant.

6. Learned counsel for the appellant herein contended that the trial court went wrong in holding that respondent No.1 is not entitled to get a house without valuation. According to the learned counsel, Exts.B1 to B26 clearly prove and substantiate the amount spend on the house and its construction. It was submitted that the trial court went wrong in holding that the respondents No.5 to 7 are liable to pay owelty amount to the plaintiff. It was further argued that the Advocate Commissioner assessed the building without :-7-:

the help of an expert on that count.

7. There is no dispute regarding the share to which the parties are entitled. The appellant contended that the building was allotted to the first respondent erroneously and the building was not assessed properly. According to him, he is not liable to pay owelty amount as decreed by the court.

8. The objectionable part of the judgment and decree, according to the learned counsel for the appellant, is a finding that the first defendant is entitled for reservation of the house in his favour as far as possible.

9. The concept of reservation of property involved in a suit for partition in favour of a co-owner is to be understo