Kerala High Court
Rani Vincent vs Patson Vincent And Another on 20 August, 2025
RFA 507/2010
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 20TH DAY OF AUGUST 2025 / 29TH SRAVANA, 1947
RFA NO. 507 OF 2010
OS NO.886 OF 2007 OF I ADDITIONAL SUB COURT, ERNAKULAM
APPELLANT/1ST PLAINTIFF
RANI VINCENT, W/O VINCENT, AGED 57, VELLEPARAMBIL
HOUSE, DESABHIMANI ROAD, KALOOR DESOM, ELAMKULAM
VILLAGE, KOCHI- 682 017.
BY ADVS.
SRI.DINESH R.SHENOY
SRI.MAHESH MENON
RESPONDENTS/DEFENDANT & 2ND PLAINTIFF
1 PATSON VINCENT, S/O LATE VINCENT, AGED 31,
VELLEPARAMBIL HOUSE, DESABHIMANI ROAD, KALOOR
DESOM, ELAMKULAM VILLAGE, KOCHI- 682 017, NOW
RESIDING WITH MR.JOSE FRANCIS, P.B.NO.2847, RAS-
A1-KHIMAH, UNITED ARAB EMIRATES
2 BINI VINCENT D/O.LATE VINCENT, AGED 26,
VELLEPARAMBIL HOUSE, DESABHIMANI ROAD, KALOOR
DESOM, ELAMKULAM VILLAGE,KOCHI- 682 017.
BY ADVS.
SHRI.JOY GEORGE
SRI.V.SUBHASH BHAT
SHRI.VINO JOSE
SMT.PRAICY JOSEPH
SMT.TANYA JOY
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD
ON 12.8.2025, THE COURT ON 20.08.2025 DELIVERED THE
FOLLOWING:
RFA 507/2010
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JUDGMENT
Dated : 20th August, 2025
The 1st plaintiff in OS 886/2007 on the file of the Sub Court, Ernakulam is
the appellant. (For the purpose of convenience the parties are hereafter referred to
as per their rank before the trial court.)
2. The plaintiffs filed the above suit for partition. The 1 st plaintiff is the
widow and the 2nd plaintiff is the daughter of the deceased Vincent and the
defendant is the son of Vincent in his first marriage. In the suit there are five items
of properties. Out of which, item No.5 consisting of 8.422 cents and a two storied
residential building situated therein, is admittedly the prime item among the five
items scheduled in the plaint. Therefore, both parties claim to have item No.5 in
their share.
3. In the preliminary decree, the scheduled properties were ordered to be
divided into three equal shares and to allot 1/3 share each to plaintiffs 1 and 2 and
the defendant. However, the trial court ordered to allot item No.5 and the building
therein to the share of the defendant, under the principles of equity and
reservations. The 1st plaintiff /appellant being aggrieved by the above clause in the
preliminary decree in allotting item No.5 to the defendant, preferred this appeal.
4. Now the point that arise for consideration is the following :-
Whether item No.5 and the building therein is to be allotted to the share of
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the defendant under the principle of equity and reservations ?
5. Heard Sri.Dinesh R.Shenoy, the learned counsel for the appellant and
Smt.Praisy Joseph, the learned counsel for the respondents.
6. The learned counsel for the appellant would argue that the appellant
is a widow having no other residential building of her own, while the defendant is
residing in USA and settled there and well off and the trial court was not justified
in allotting item No.5 and the residential building therein to the defendant. On
other other hand, the learned counsel for the respondent would argue that the
appellant has another residential building in her name and that some other
properties belonged to late Vincent were sold by her and using the sale proceeds,
she had purchased buildings in the name of her children in her first marriage and as
such, the trial court was justified in allotting item No.5 and the residential building
therein to the defendant.
7. The learned counsel for the appellant invited my attention to the fact
that the trial court has not raised any issue regarding equities and reservations and
that is why no evidence was let in on that issue and hence the learned counsel
prayed for relegating the question of equities and reservations to the final decree
stage. However, the learned counsel for the respondents insisted for sustaining the
allotment of item No.5 as decided by the trial court.
8. On a perusal of the trial court judgment it can be seen that the trial
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court has framed only three issues which are the following :
1. Is the suit bad for non joinder of necessary parties ?
2. Are the plaintiffs entitled for partition ? If so, what shall be the
share of plaintiffs ?
3. Reliefs and costs.
9. Therefore, it can be seen that the trial court has not framed any issue
regarding principle of equity and reservations. The parties can be expected to
adduce evidence only on the issues framed by the trial court. Therefore, the
contention raised by the learned counsel for the appellant that since there was no
issue regarding equities and reservations, necessary evidence was not adduced in
that respect before the trial court, assumes significance.
10. In the above circumstances, the finding of the trial court allotting item
No.5 and the building therein to the share of the defendant on the ground of equity
and reservations is unsustainable. At the same time, both parties are to be given
opportunity to raise their claims regarding equities and reservations with respect to
each item. Since such an opportunity was not seen allotted to them during the
preliminary decree stage, it is only just and convenient to give such an opportunity
to both parties during the final decree stage. Therefore, the finding of the trial court
allotting item No.5 and the building therein to the share of the defendant is liable to
be set aside and all claims on the ground of equity and reservations are to be
relegated to the final decree stage. To that limited extent, this appeal is liable to be
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allowed. Point answered accordingly.
11. In the result, the appeal is allowed. The impugned preliminary
judgment and decree of the of the trial court to the extent it allotted the plaint
schedule item No.5 and the building therein to the defendant is set aside. The
question of equity and reservations is relegated to the final decree stage. The trial
court shall evaluate the claim of both sides regarding equities and reservations
during the final decree stage, on merits, after giving opportunity to both sides to
adduce evidence, if any.
All pending interlocutory applications in the appeal will stand dismissed.
Sd/-
C.Pratheep Kumar, Judge
Mrcs/12.8.
