Subina vs M. Vasantha

Type Court Judgment Court Kerala Decided Oct 01, 2021

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https://sooperkanoon.com/case/1724277

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Citation: sooperkanoon.com/1724277
Court: Kerala High Court
Judge: Honourable Mr. Justice P.Somarajan
Decided On: Oct 01, 2021
Case Number: RFA/17/2019

Parties & Advocates

Appellant / Petitioner

Subina

Respondent

M. Vasantha

Excerpt

.....late sasidharan nair, residing at muthuveettilhouse, munduparamb p.o, malappuram amsom keelamuri desom, ernad taluk malappuram district 676509. by adv sri.s.renjith this regular first appeal having come up for admission on 01.10.2021, the court on the same day delivered the following:p.somarajan, j.--------------------------------------- r.f.a. no.17 of 2019 ----------------------------------------- dated this the 01st day of october, 2021judgmentwhen there is a decree by partition by metes and bounds into four equal shares, it is neither permissible nor advisable to pass a final decree by clubbing together three shares out of four and to divide the property into two. this was actually done in the final decree by the court below and there by means of access to one of the shares out of the property clubbed together was denied. it is just against the preliminary decree and the mandate thereunder.2. while making division into four equal shares,means of access should be provided and it is not permissible to club together three shares out of four and to provide means of access to the property clubbed together, without drawing separate means of access to each share. the trial court has committed a very serious mistake. hence, it requires fresh consideration by issuing a commission. theorder of the trial court is hence set aside. the matter isremanded back to the trial court for fresh disposal. the parties shall appear before the trial court on 20/10/2021 for that purpose. the appeal is allowed in part accordingly. sd/- p.somarajan judge vpk

Full Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN FRIDAY, THE 1ST DAY OF OCTOBER 2021 / 9TH ASWINA, 1943 RFA NO. 17 OF 2019 AGAINST THE ORDER FDIA NO.1107/2017 IN OS 110/2015 OF I-ADDITIONAL SUB COURT, KOZHIKODE, KOZHIKODE APPELLANTS/RESOPONDENTS IN FDIA/DEFENDANTS IN SUIT: 1 SUBINA AGED 39 YEARS KARAPARAMBU P.O, VENGERI AMSOM DESOM, KOZHIKODE TALUK. 2 SUJINA AGED 36 YEARS D/O. LATE SASIDHARAN NAIR, KARAPARAMBU PO, VENGERI AMSOM DESOM, KOZHIKODE TALUK. KOZHIKODE 673010. 3 SUMITHA, AGED 28 YEARS RESIDING AT ALENCHERY VEEDU, KARAPARAMBU PO, VENGERI AMSOM DESOM, KOZHIKODE TALUK. BY ADVS. V.V.SURENDRAN SRI.P.A.HARISH RESPONDENT/PETITIONER IN FDIA/PLAINTIFF IN SUIT: M. VASANTHA AGED 61 YEARS W/O. LATE SASIDHARAN NAIR, RESIDING AT MUTHUVEETTILHOUSE, MUNDUPARAMB P.O, MALAPPURAM AMSOM KEELAMURI DESOM, ERNAD TALUK MALAPPURAM DISTRICT 676509. BY ADV SRI.S.RENJITH THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 01.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
P.SOMARAJAN, J.
--------------------------------------- R.F.A. No.17 of 2019 ----------------------------------------- Dated this the 01st day of October, 2021

JUDGMENT

When there is a decree by partition by metes and bounds into four equal shares, it is neither permissible nor advisable to pass a final decree by clubbing together three shares out of four and to divide the property into two. This was actually done in the final decree by the court below and there by means of access to one of the shares out of the property clubbed together was denied. It is just against the preliminary decree and the mandate thereunder.

2. While making division into four equal shares,

means of access should be provided and it is not permissible to club together three shares out of four and to provide means of access to the property clubbed together, without drawing separate means of access to each share. The trial court has committed a very serious mistake. Hence, it requires fresh consideration by issuing a commission. The

order of the trial court is hence set aside. The matter is

remanded back to the trial court for fresh disposal. The parties shall appear before the trial court on 20/10/2021 for that purpose. The appeal is allowed in part accordingly. Sd/- P.SOMARAJAN JUDGE VPK

Same Court & Year Kerala · 2021 Same Parties Subina vs M. Vasantha Same Judge Honourable Mr. Justice P.Somarajan