IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 19TH AUGUST 2010 / 28TH SRAVANA 1932 SA.No. 346 of 2000(G) --------------------- AS.144/1996 of ADL.SUB COURT, THALASSERY OS.449/1995 of PRL.M.C.,KANNUR .................... APPELLANT/APPELLANT/DEFENDANT: ------------------------------------------------------ MANGOTH PEEDIKAKKANDY SASIDHARAN, S/O. KUNHIRAMAN, 39 YEARS, MECHANIC, MANGOTH PEEDIKAKKANDY HOUSE, THEVAKKARA, GOOD SHED ROAD, KANNUR 2. BY ADV. SRI.P.T.ANTONY RESPONDENTS/RESPONDENT/PLAINTIFFS: ------------------------------------------------------------ 1. M.P.SARALA SADANANDAN, W/O. SADANANDAN, 43 YEARS RAJI NIVAS, P.O. ARAMKOTTAM, AYLIKODE SOUTH, KANNUR TALUK. 2. M.P.NISHA, D/O. SADANANDAN, 25 YEARS --DO-- --DO-- ADV. SRI.T.A.RAMADASAN SRI.CIBI THOMAS FOR R1,2 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SA NO.346/00 ORDER ON C.M.P. NO.2020/00 IN SA NO.346/00 DISMISSED 19.8.2010 SD/- P.BHAVADASAN , JUDGE /TRUE COPY/ PA TO JUDGE P.BHAVADASAN, J. --------------------------- S.A. No. 346 OF 2000 -------------------------- Dated this the 19th day of August, 2010 J U D G M E N T Aggrieved by a portion of the preliminary decree, the defendant in O.S. No.449 of 1995 before the Munsiff Court, Kannur, has come up in appeal. The facts and parties herein referred to as are available before the trial court. 2. The property admittedly belonged to one Devi. Devi had two sons namely Sadanandan and Sasidharan. Devi died in 1991. Sadanandan pre-deceased his mother and his widow and children are the plaintiffs in the suit. On the death of Devi, the plaint scheduled property had devolved upon the defendant and the second plaintiff and therefore they are to be treated as co-owners. Since the second plaintiff and the defendant were co-owners, the suit was laid for partition. 3. The defendant resisted the suit on several grounds. The right of the second plaintiff for the share was conceded but as regards Item No.2, it was claimed that the house was constructed using his funds and therefore he is entitled to reservation of the same. 4. The trial court raised issues for consideration. SA. No.346/00 2 Evidence consists of the testimony of PW1, DWs 1 and 2 and Exts.A1 to A6 and Exts.B1 to B33. Based on the evidence a preliminary decree was passed which reads as follows: “1. That the plaint scheduled item No.1 be divided into two shares by metes and bounds with reference to good and bad soil and the 2nd plaintiff be alloted one such share and the defendant be allotted to the other share. 2. That house in item No.2 of the plaint schedule property be valued and allotted to the share of the defendant on the defendant paying the 2nd plaintiff's share value in that property. 3. That the cost of the suit do come out of the estate. 4. Any of the parties who paid court fee be at liberty to apply for passing final decree.” 5. Aggrieved by that portion of the decree regarding the valuation of the house, the defendant carried the matter in appeal A.S No.144 of 1996 before the Subordinate Court, Thalassery. According to him, the building was not liable to be valued as was held by the trial court. However, the appellate court refused to accept the plea put forward by the defendant and confirmed the preliminary decree passed by the trial court. It is against that concurrent findings the second appeal has been preferred. Following questions of law are formulated in the memorandum of appeal. SA. No.346/00 3 “(1) Whether the lower courts were correct under law in directing that the house be valued and the share of the 2nd plaintiff be given in the said valuation? (2) Whether the 2nd plaintiff who has not contributed anything for the construction of the house is entitled for the share of the value when the evidence is that the construction was substantially undertaken by the appellant. (3) Whether the allotment of the house in item No.2 has been made according to legal principles.” 6. At the time of arguments, learned counsel for the appellant confined his argument to Section 23 of the Hindu Succession Act. It is pointed out by him that the said provision has not been noticed by the courts below and by virtue of that provision, the house is not liable to be partitioned. What the second plaintiff can seek for is only the right of residence. 7. Unfortunately for the appellant, the said provision stands deleted from the statute book by the Hindu Succession Amendment Act 2005 (39 of 2005) with effect from 9.9.2005. Even assuming that the amendment act has no retrospective effect, at any rate, it is retroactive in operation. Viewed from another angle protection given under Section 23 was a statutory one but does not create any vested SA. No.346/00 4 right. With the repeal of the section, protection ceases to exist. Therefore the contention raised by the learned counsel for the appellant that the amendment cannot be applied retrospectively is without basis. 8. The findings of the courts below regarding the valuation of house has been arrived out of evaluating the evidence on record. It is essentially a question of fact. It is not shown that findings so arrived at by the courts below are either perverse or unwarranted by the evidence on record. In equity also the findings seems to be fair. In the result, the appeal is without merits and is to be dismissed. I do so. There will be no order as to costs. P.BHAVADASAN, (JUDGE) vps SA. No.346/00 5 SA. No.346/00 6