IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 26TH MARCH 2009 / 5TH CHAITHRA 1931 RFA.No. 117 of 2009() --------------------- IA 2467/88 IN OS 73/85 OF SUB COURT, VATAKARA Appellants/respondents 17 & 18 in FDIA 2467/1988/ legal rep. Of 6th defendant: -------------------- 1. C.M. JANAKI, W/O. LATE T. NARAYANAN NAIR, 70 YEARS, HOUSEWIFE, UMA, POST PURAMERI - 673 503, KOZHIKODE DISTRICT. 2. DEEPA NAIR, D/O. LATE T. NARAYANA NAIR, 31 YEARS, LEGAL PRCATITIONER, UMA, POST PURAMERI - 673 503, KOZHIKODE DISTRICT. BY ADV. SRI.B.KRISHNAN RESPONDENT/petitioner in fdia 2467/1988/plaintiff --------------- E.K. MANIKANDAVARMA RAJA, S/O. VAMANAN NAMBOODIRI, 22 YEARS, F.T.C.M, K.R. HIGH SCHOOL, PURAMERI, AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT. ADV. SRI.K.V.SOHAN FOR R1 THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 26/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON IA.NO.826/09 IN RFA 117/09 DISMISSED 26/3/2009 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ R.F.A.NO.117 OF 2009 ------------------------------------------ Dated 26th March 2009 JUDGMENT Final decree petitioner in I.A.2467/1988 in O.S.73/1985 on the file of Sub court, Vadakara is the respondent. Respondents 17 and 18, the legal heirs of deceased sixth defendant are the appellants. Appeal is filed challenging the final decree whereunder the house available for partition was alloted to the respondent with a direction to pay value of their shares to the appellants. Learned Sub Judge had originally passed a final decree allotting the house to the respondent. It was challenged before this court in A.S.397/1988. This court set aside the final decree with regard to the allotment of the house alone and confirmed the other allotments and remanded the final decree granting opportunity to the appellants and respondent to adduce further evidence regarding their entitlement for the allotment of the house. Subsequent to the remand, appellants produced Exts.B1 to B7 and respondent Exts.A1 and A2. Respondent was examined as PW1 earlier. Appellants did not adduce any oral evidence. Learned Sub Judge on RFA 117/09 2 the evidence found that though respondent inherited the property having an extent of 1.93 Ares under Ext.A1 on the death of his wife, construction of the house in that property is not completed and according to respondent as PW1 that was given to his brother-in-law and respondent is not having any other house of his own and he is only a menial employee. Learned Sub Judge also found that appellants have other properties including house and therefore found that the house is to be allotted to the respondent and value of shares to appellants and final decree was passed accordingly. It is challenged in this appeal. 2. Learned counsel appearing for appellants and respondent were heard. 3. Learned counsel appearing for appellants pointed out that when appellants together are entitled to 5/6 shares and respondent is only entitled to remaining 1/6 shares and allotment of the house to the 1/6 share is illegal. It was also argued that Ext.B1 encumbrance certificate establish that property inherited by respondent after the death of his wife which belonged to the wife under Ext.A1, was not transferred to the brother-in-law as claimed by PW1 RFA 117/09 3 and therefore finding of the learned Sub Judge is not correct. It was also argued that PW1, deposed that there is a house in the property and therefore finding that construction of the house was not completed is also not correct. Learned counsel argued that in such circumstances, fact that appellants are having other houses is not a ground to allot the house to the respondent who is having only 1/6 share with a direction to pay value of 5/6 shares to the appellants and therefore allotment is to be set aside. 4. Learned counsel appearing for respondent argued that even if the property covered under Ext.A1 was not transferred by a registered document in favour of brother-in-law of the respondent, there is no reason to disbelieve his version that property was given to the brother-in-law. It was also submitted that respondent is only a peon in an aided school and he was aged only 22 years at the time of institution of the suit and when he is not having any house of his own, allotment of the house to him was just and proper. 5. The only point for consideration is whether allotment of the house to the respondent with RFA 117/09 4 a direction to pay the value of the remaining shares to the appellants is equitable and justifiable. 6. True, the property belonging to the wife of the respondent on her death would definitely devolve on the respondent and Ext.A1 property is to be taken as that of the respondent, in the absence of any transfer of that property by the respondent. At the same time, it is to be born in mind that when the said property belongs to the wife of the respondent, respondent could give that property to the relatives of the wife, though legally he is entitled to inherit the property. Whatever it be, appellants are having sufficient properties including residential houses. Therefore, if it is taken that respondent is having a property extending to 1.93 Ares inherited from the wife and also that there is a house in that property, whether allotment of the house to respondent is unfair or unjust. The position would have different, if the appellants are not having a house of their own. Undisputed facts establish that appellants are having sufficient properties including houses. Therefore, when the final decree court in equity and fairness allotted the house to the respondent, I find no reason RFA 117/09 5 to interfere with that order for the reason that respondent is only having 1/6 share or that respondent is having a property, which devolved on him on the death of the wife. It is more so when age of the respondent is taken into consideration. In such circumstances, appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.