DEVAKI ANTHARJANAM Vs. NARAYANAN NAMBOODIRI

JUDGEMENT

(1.) The first defendant challenges the final decree for partition. The plaintiff is the husband of the first defendant. The 2nd defendant is their son. The plaintiff and first defendant has a daughter as well. They are Namboodiris. In the illom partition, the plaint schedule property and more extent was allotted to the plaintiff, first defendant and their children. As per a subsequent partition, the plaint schedule property was allotted to the plaintiff and defendants. Each of them has one third share in the plaint schedule property having an extent of 13.5 cents in which a residential building and a commercial building are situate. Preliminary decree declared their shares. The plaintiff filed the application for passing the final decree. A Commissioner was appointed. He submitted a plan, report and account. The trial court accepted the same and passed the final judgment and decree. The defendants unsuccessfully challenged the final judgment and decree before the District Court. Dissatisfied with the concurrent findings, the first defendant has come up in Second Appeal.

(2.) Sri. Ranjith Thampan, the learned Counsel for the appellant contended that the preliminary decree and the final decree are void in view of Section 7 of the Family Courts Act. He contended that the Family Court was established for the area and the presiding officer was appointed in 1995 much before the institution of the suit in 2002. The preliminary decree was passed on 25-7-2003 and the final decree was passed by the trial court on 30-6-2004 in an application filed in 2003. The present suit comes under Explanation (c) to Sub-section (1) of Section 7 of the Family Courts Act, 1984 and therefore the civil court has no jurisdiction to deal with the suit. The decree passed in such a suit is void and non est. He also contended that the partition effected by the Commissioner is inequitable and unjust and the commercial building was not properly valued.

(3.) Sri.A.K. Seshadri, learned Counsel for the first respondent/plaintiff contended that the suit is not hit by Section 7 of the Family Courts Act. He contended that the 2nd defendant is a sharer and therefore, the suit does not come under Explanation (c) to Sub-section (1) of Section 7. Sri. Seshadri referred to the Commissioner's report and account and submitted that the partition suggested is just and equitable.