K.V.SURENDRAN Vs. K.V.CHENTHAMARAKSHAN

JUDGEMENT

(1.) The 4th defendant in a suit for partition filed as O.S.417/1996 before the Sub Court, Palakkad challenging the preliminary decree has filed this appeal.

(2.) The plaintiff had filed the suit for partition of the plaint A and B schedule properties claiming 1/5 th share over the same. It is the case of the plaintiff that Velayudhan, his father was the owner in possession of the plaint A and B schedule properties. On his death it devolved upon his wife, the first defendant and his children, ie; the plaintiff and the defendants 2 to 4. The properties were partitioned in the year 1995 and A schedule was set apart in common as D schedule in the partition deed. B schedule properties are movable properties kept in the house situated in the plaint A schedule property. The plaintiff and the defendants were entitled for 1/5 share each, was the case of the plaintiff, pleaded by him.

(3.) The defendants 1 to 3 did not contest the matter and remained absent. The fourth defendant alone contested the case. It was contended by him that the plaint A schedule property was an item of property set apart to the share of Velayudhan as per partition deed No.588/1958. Thereafter, Velayudhan acquired some property and all those properties were partitioned in the year 1973 as per document No.1677/73 of S.R.O., Parli. The plaintiff had sold some items of property out of the share set apart to him and the second defendant had also sold certain extent of property. The remaining properties were partitioned in the year 1995 as per document No.399 of S.R.O, Parli. Some properties were purchased out of the funds of the family in favour of defendants 1 and 2. But those properties were not included in the above partition. During 1995 partition the plaintiff agreed to surrender his right in favour of the fourth defendant on or before 10.10.1996 on payment of Rs.1 lakh by him. But the possession of the properties were handed over to the plaintiff since he was not having sufficient funds and he could not get surrender from the plaintiff. Defendants 1 and 4 and the wife of the 4 th defendant were residing in the plaint schedule property. Later, the 1 st defendant shifted from the house. The suit is bad for partial partition, hence liable to be dismissed.