Decided on October 09,2017

Balanchandra Panicker Appellant
Kavukutty Kunjamma Respondents


B.KEMAL PASHA, J. - (1.) The 1st defendant in O.S.No.241 of 2004 of the Munsiff's Court, Perumbavoor has come up in Regular Second Appeal, by challenging the final decree passed by the said court and the judgment and decree passed by the lower appellate court in A.S.No.102 of 2014.
(2.) The suit is one for partition. The suit property originally belonged to late Pappi Amma, devolved on her three children, since she died intestate. The 1st plaintiff is the eldest among the children. The 2nd defendant in the suit is a mentally retarded woman, whose mother is the younger sister of the 1st plaintiff. The mother of the 2nd defendant, Leelavathi Kunjamma, is the second daughter of Pappi Amma and she predeceased Pappi Amma leaving the 2nd defendant as her sole legal heir. The appellant herein, who is the 1st defendant, is born to Pappi Amma in her second marriage and therefore, he is the uterine brother of the 1st plaintiff and deceased Leelavathi Kunjamma.
(3.) On the death of Pappi Amma, her properties devolved on the 1st plaintiff, the 2nd defendant and the 1st defendant in equal shares. Therefore, the 1st plaintiff filed the suit for getting her 1/3 share over the property partitioned by metes and bounds. A preliminary decree declaring her right to get partition of her 1/3rd share over the property was passed. The said decree was not challenged or carried in appeal. In fact, the 1st defendant had admitted, as DW1 during trial, that he had no objection in granting the decree for partition and separate possession of the 1/3rd share of the 1st plaintiff. The preliminary decree became final.;

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