IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 21ST MARCH 2011 / 30TH PHALGUNA 1932 RFA.No. 146 of 2011() --------------------- OS.206/2008 of PRINCIPAL SUB COURT,KOTTAYAM .................... APPELLANT(S): PLAINTIFFS: -------------------------------------------- 1. ANNAMMA ABRAHAM, AGED 72. W/O. ABRAHAM, KAKKUZHIL HOUSE, S.N. PURAM, P.O. PAMPADY, KOOROPPADA VILLAGE, KOTTAYAM. 2. ALEYAMMA KOZHY, AGED 56 YEARS, W/O. E.S. KOSHY, A-4 MUNJA NAGAR, NEAR AMAR MAHAL, CHEMBUR WEST, BOMBAY - 89. 3. SUSAMMA CHACKO, AGED 61 YEARS, W/O. LATE N.C.CHACKO, CHIRAPURATHU NADUVELE PARAMBIL HOUSE, VAKATHANAM VILLAGE, VAKATHANAM.P.O, CHANGANACHERRY TALUK, KOTTAYAM. 4. VARGHESE, AGED 68, S/O. VARGHESE, NADUVILA CHIRAPURATHU HOUSE, KUZHIMATTOM.P.O, PANACHIKADU VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT. 5. AMMINI CHACKO, AGED 51 YEARS, MYLAKKATTU HOUSE, PUTHUPPALLY.P.O, PUTHUPPALLY VILLAGE, KOTTAYAM TALUK, KOTTAYAM. BY ADVS. SRI.C.S.MANILAL, SRI.K.VIDYASAGAR, SRI.S.NIDHEESH. RESPONDENT(S): DEFENDANT: ------------------------------------------------ KOCHUMOL @ MARIYAMMA, AGED 45, W/O. LATE C.V. KURUVILA, NADUVILE CHIRAPURATHU HOUSE, KUZHIMATTOM.P.O, PANACHIKADU VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT - 686 533. THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 21/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss THOTTATHIL B. RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ R.F.A. No.146 of 2011 & C.M. Appl.No.411 of 2011 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 21st day of March, 2011 J U D G M E N T ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Thottathil B.Radhakrishnan, J. The captioned C.M.Application is filed seeking condonation of 97 days' delay in filing the appeal against the preliminary decree for partition. Read the order minuted by us on 10-03-2011. 2. The plaintiffs, who are the appellants, are the siblings of late C.V.Kuruvila, whose widow is the sole defendant, the respondent herein. Kuruvila obtained the assets, which are the subject matter of the suit, from his father. Kuruvila died intestate and issueless. Plaintiffs sued for partition of Kuruvila's estate conceding the one half right of the widow. Each among the plaintiffs claimed RFA.146/2011 : 2 : one tenth of the suit property. One of the claims is that one among the plaintiffs (4th plaintiff) does not have a house of his own. He, therefore, wanted the residential house of Kuruvila to be allotted to him. 3. We find from the decree schedule that a residential building stands on a plot of land of 38 cents. Different other items have 41 cents, 57 cents, 34 cents, 18 cents and 45 cents. With all this, the trial court proceeded on the uncontested position that the defendant, the widow of Kuruvila, is entitled to one half. The trial court held that she was entitled to reservation of the residential building. 4. This appeal is only on the question of allotment of the residential building exclusively to the widow of Kuruvila apart from the fact that a widow takes one half share and all the plaintiffs together can get only the RFA.146/2011 : 3 : remaining one half. 5. We had posed a question in our order dated 10.03.2011. This was as to what, if any, was the right of issueless widow to stand by her matrimonial home and the support that she would get for any such preferential allotment in terms of the Constitution and the laws. 6. Within the concept of the law that applies to Christians, there is no question of 'tharavadu' or a joint family holding a home as it existed among Hindus. Be that as it may, under the Indian Succession Act, which now operates, there is no right for any jointness of a family home. 7. With this, the right of a woman, ie, the wife, either as the wife or as a widow, to reside in matrimonial home, has to be recognised in her favour in comity with RFA.146/2011 : 4 : the concept of family in civil societies and nations. This right has also to be treated as salutary in the absence of any specific statutory interdiction against an allotment of the matrimonial home to the widow and to make an allotment in favour of the siblings of the deceased, whose estate is being dealt with for partition. Apart from the sanctity of the marriage and the matrimonial home, the assurance of those who have entered into matrimonial relationships has to be recognised and honoured. This includes the eligibility for first preference in the allotment of the matrimonial home. Though there may be an exceptionally exceptional situation where the Court may, in exercise of equitable considerations, make some nature of allotment, such issues do not arise herein. The appealing siblings of late Kuruvila do not show any extraordinary situation where they or one among them should be preferred for allotment of the matrimonial home of Kuruvila or at least a part thereof derogatory to the RFA.146/2011 : 5 : interest of his surviving widow. In that context, the defendant is eligible to preferential treatment and entitled to be allotted the matrimonial home in preference to any other heir at partition, particularly when she remains issueless. We say so because, if Kuruvila had an issue through the defendant or otherwise, the plaintiffs would not have a shred of right to lay any claim to the assets of Kuruvila. With this, we find no merit in this appeal. Accordingly, we are not inclined to condone the delay in filing the appeal. In the result, C.M.Application fails. The same is dismissed. As a consequence, R.F.A. is rejected. Refund court fee paid on R.F.A. Sd/- (THOTTATHIL B. RADHAKRISHNAN, JUDGE) Sd/- (S.S.SATHEESACHANDRAN, JUDGE) aks // True Copy // P.A. To Judge