The short point raised in this appeal is regarding one of the clauses in the preliminary decree passed by the Sub Court, Ernakulam in O.S.No. 528/2008 and as confirmed by the District Court, Ernakulam.
2. O.S.No.528/2008 was the suit for partition.
Fortunately, in this second appeal, there is no dispute regarding the quantum of shares nor is there any dispute regarding the property that is liable for partition. The plaint contained two schedules namely A and B schedule properties. The court below determined the plaintiff's share as 2/15th. The trial court passed the judgment and decree which reads as follows:
“i) The plaint 'A' and 'B' schedule properties are liable to be partitioned among the plaintiff and defendants 1 to 5 in a metes and bounds partition.
ii) Out of the plaint 'A' and 'B' schedule properties, the first defendant is entitled to 1/3 share.
iii) The remaining 2/3 share is to be partitioned into 5 shares and one share each is to be alloted to the plaintiff and defendants 2 to 5.
iv) While allotting shares, the entire share due to the plaintiff is to be given from plaint 'A' schedule property.
v) Any of the parties who pays the required court fee can apply for passing a final decree in tune with this preliminary decree.
vi) Costs of the suit will form part of the estate.”
3. The matter was carried in appeal as A.S.No.
93/2011. The appellate court modified the preliminary decree which reads as follows:
“In view of the above finding, the judgment and preliminary decree of the trial court are not liable to be set aside or varied in its terms. But it is explained that while carving out the share of the appellant from plaint A schedule property, value of his 2/15 share in plaint B schedule property has to be taken into account and property equivalent to the said value from plaint A schedule also has to be alloted to the appellant along with his 1/5 share in plaint A schedule.”
4. The learned counsel appearing for the appellant contended that the above direction is illegal and improper and that could have been worked out only in the final decree proceedings. There is no mention about owelty adjustment and that has caused prejudice to the appellant.
5. Though the argument may look attractive at the first blush, it is without any substance whatsoever. All that the trial court had done was to specify that the share that is due to the plaintiff which is determined as 2/15 share shall be allotted from the A schedule property. It is seen from the records that at least a portion of B schedule property is subject matter of alienation and also that it is surrounded by the property belonging to strangers. In appeal, the appellate court clarified the position that what is meant is only that the value of 2/15 shares due to the plaintiff will be carved out from plaint A schedule property. The valuation of the property is to be made at the final decree stage. There is no reason to believe that any share in excess than what is actually due to the plaintiff determined on the basis of valuation will be alloted from plaint A schedule property. One fails to understand as to how the appellant is aggrieved by the observations that the share that is found due to the plaintiff shall be given from plaint A schedule property. There is nothing to show that it is intended to give excess share to the plaintiff, nor is there anything to show that the plaintiff is relieved of paying any owelty amount. There is no merit in the contentions raised by the learned counsel for the appellant.
This appeal is without merits and is accordingly dismissed in limine.
ds //True Copy// P.A. To Judge Sd/-
P.BHAVADASAN JUDGE