IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 1ST OCTOBER 2010 / 9TH ASWINA 1932 RFA.No. 269 of 2004() ------------------------------ IA.182/89 IN OS.94/1982 of SUB COURT, MAVELIKKARA .................... APPELLANT/CR.PETITIONER NO.5/DEFENDANT NO.5: ------------------------------------------------------------------------------ RADHAKRISHNAN NAMBOOTHIRI, PATHANY ILLAM, PUNTHALA ERATHU, VENMONY VILLAGE. BY ADVS. SRI.SIBY MATHEW SRI.A.A.MOHAMMED NAZIR RESPONDENT(S): PTNR.&CR.PTNRS/PLNTF.2&DFNDTS.3,4,6-18,20-22,24-27 ----------------------- AND LEGAL HEIRS OF 19TH DEFENDANT 1. SREEDEVI ANTHARJANAM, KALARICKAL VADAKKETHIL ILLAM, PONAMAL MURI, MAVELIKKARA, THEKKEKARA VILLAGE. 2. LAKSHMI ANTHARJANAM, 1ST WIFE OF THE 1ST APPELLANT, PATHANY ILLAM, PUNTHALA ERATHU MURI, VENMONY VILLAGE. 3. SARADA ANTHARJANAM, 2ND WIFE OF THE 1ST APPELLANT, -DO-. 4. SARASWATHI DEVI, PATHANY ILLOM, PUNTHALA ERATHY MURI, VENMONY VILLAGE. 5. THULASI DEVI, -DO- -DO-. 6. GEETHA, -DO- -DO-. 7. VENU, -DO- -DO-. 8. LEELAMONY, -DO- -DO-. R.F.A. NO.269/2004 9. SUKUMARI, -DO- -DO-. 10. VISHNU NAMBOOTHIRI, -DO- -DO-. 11. JAYADEVAN NAMBOOTHIRI, -DO- -DO-. 12. MURALEEDHARAN NAMBOOTHIRI, -DO- -DO-. 13. UMADEVI, W/O. RADHAKRISHNAN NAMBOORITHI, -DO-. 14. KESAVAN NAMBOOTHIRI, MULACKAL ILLAM, THAVALAPARA MURI, KONNI VILLAGE. 15. NARAYANAN NAMBOOTHIRI, -DO-. 16. RAMA DEVI, ARIA ILLAM, THAZHATHU MURI, MALAYALAPPUZHA VILLAGE. 17. P.M.IDICKULA, CHARUKATTU VEEDU, PUNTHALA ERATHY MURI, VENMONY VILLAGE. 18. VASUDEVAN NAIR, S/O. KRISHNAN NAIR, MUNDATHY VEEDU, -DO-. 19. CHERIYAN, S/O. ZACHARIA, THOPPIL VEEDU, -DO- -DO-. 20. MATHAI, S/O. SAMUEL, ATTUVELIL PADINJARETHIL, -DO- -DO-. 21. SASIDHARA PANICKER, S/O. RAGHAVA PANICKER, KARINGALIL VEEDU, -DO-. 22. THANKAPPAN NAIR, S/O. NARAYANAN NAIR, THEVALA VEEDU, -DO-. 23. BABU, S/O. ALIYAMMA, PILATHARA THEKKETHJIL, PUNTHALA THEKKETHIL, VENMONY VILLAGE (LEGAL REPRESENTATIVE OF DFNDT.23) 24. ANANDAVALLI DEVI, PILHAMPIL KOTTARAM, VETTUVENI MURI, KARTHIKAPPALLI VILLAGE, HARIPAD P.O. (LEGAL REPRESENTATIVE OF DEFENDANT NO.19). R.F.A. NO.269/2004 25. REMADEVI, -DO- -DO-. 26. NARAYANAN NAMBOOTHIRI, -DO- -DO-. 27. HARIKUMAR, -DO- -DO-. 28. SREEKUMAR, -DO- -DO-. (IST COUNTER PETIIONER ALREADY DIED. HIS LEGAL REPRESENTATIVES ARE IMPLEADED AS CR.PETITIONERS 24 TO 28). R1 BY ADVS. SRI.P.B.SAHASRANAMAN, SRI.K.JAGADEESH, SRI.T.S.HARIKUMAR. THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 01/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON IA. NO.1670/04, IA. 4475/06, IA. 477/07 & IA. 773/2008 IN RFA. NO.269/2004 DISMISSED 01/10/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A.TO JUDGE tss M.N.KRISHNAN, J. ------------------------- R.F.A. No.269 of 2004 ------------------------------------- Dated this the 1st day of October, 2010. J U D G M E N T This is an appeal preferred against the order of the Subordinate Judge's Court, Mavelikkara in IA No.182/1989 in O.S.No.94/1982. It is a final decree application. The trial court accepting the commissioner's plan and report had passed a final decree. It is against that decision, the 5th defendant has come up in appeal. 2. At the outset, I may like to state that the final decree order passed by the learned Subordinate Judge is criptic and one cannot understand the implications and much water has flown after the institution of the suit by death of parties etc. These factors had not been taken into consideration and all the legal representatives necessary had not been impleaded in the case. Therefore, the entire final decree proceedings requires reconsideration. For the purpose of avoiding longer delay in determination of those factors, this court is now declaring regarding the shares of the parties, so that in the final decree, the court can proceed in accordance with law. Now the brief facts. R.F.A. No.269 of 2004 2 As per the preliminary decree, the properties other than that covered by Exts.A3 to A10 and the properties in Item B allotted to the first branch of 'Pathani Illam' that is the Tarward temple and crematorium are excluded from partition. As per the decree other parties were ordered to be divided into 7 equal shares. As per the premilinary decree out of the 7 shares one share was directed to be allotted to P1, one share to P2 one share to D1 and one share to D2, one share to D5 to D15, one share to D16 to D18 and one share to D19. In appeal the share was refixed as 6 shares for the reason that D5 to D15 who are the wife and children of D1, were allotted a share in the preliminary decree which they were not entitled as D1 was alive. In order words, the entitlement of shares would be one out of 6 shares for P1, P2, D1, D2, D16 to D18 together and D19. D2 died subsequently leaving behind P1, P2, D1, D9, D16 to D18. So the 1/6th share of D2 had devolved upon these 5 branches thereby entitling them to have one out of 5 shares. Thereafter, D19 died and her share had devolved upon R24 to R28 in this appeal. D1 also died and his share had devolved upon to D15 to D18. First plaintiff also died, though she was married her husband pre-deceased. She did not R.F.A. No.269 of 2004 3 have any children. By virtue of the provisions of the Hindu Succession Act, her legal representatives are the heirs of her mother. The heirs of her mother are P2, D5 to D15 and D16 to 18 and R24 to R28 in the appeal. Therefore, as stands today and the entitlement of the parties are as follows: 3. P2 is entitled to 5/20. D5 to D15 are entitled to 5 out of 20 shares D16 to D18 together 5 out of 20 shares and R24 to R28 in the appeal 5/20 shares. This is the share entitlement of the parties which had to be take into consideration in passing the final decree. Now the properties excluded from division are the properties covered by A3 to A10 that is, item No.32, item No.33, Item Nos.35 to 41. So they have to be excluded. It is submitted that Item No.7 and 25 are situated in another village. The commissioner, who had visited the property had submitted a report that items 4, 5, 8 to 13, 15, 17, 18, 20, 21 to 24, 26 to 31 and 34 are outstanding in the possession of strangers and are not available for partition. So what is let out for partition by metes and bounds are item Nos. 1 to 3, 6,7, 14, 16, 19 and 25. Now these are the properties that has to be divided. The counsel R.F.A. No.269 of 2004 4 for some of the contesting defendants would state that they had not been given an opportunity to file objection and therefore they must be given an opportunity. Now the only thing has to be considered is if any of these parties are of the view that items which are excluded by the commissioner is still outstanding in the possession of the family. If there is any item that all has to be divided by metes and bounds. It is submitted by the learned counsel for the petitioner that if a protracted trial is going on it will affect the party and she is already 85 years old. So if such a contention is there, I direct the court to consider it separately and pass a supplemental final decree later unless it can be done along with the visit of the commissioner. But the partability of Item Nos.1 to 3, 6, 7, 14, 16, 19 and 25 be again done in accordance with the share mentioned after inspecting the properties. Therefore the matter requires reconsideration in that angle. It has also to be stated that since the stamp value has already been produced there need not be any further direction to produce further stamp value when it satisfies the value of the estate. R.F.A. No.269 of 2004 5 4. Since the whole matter requires reconsideration the final decree passed by the trial court is set aside and it is send back to the Court below for the following. (1) Let the property be divided into 20 equal shares and five shares be allotted to P2, five shares to D5 to D15 together, five shares to D16 to 18 together and five shares to R24 to R28 in the appeal together. (2) Let items 32, 33, 35 to 41 be excluded from the partition. (3) Let items 1 to 3, 6, 7,14, 16, 19 and 25 be divided in accordance with the shares mentioned in clause (i). (4) If the parties admit that items 4, 5 , 8 to 13, 15, 17, 18, 20 to 24, 26 to 31, 34 are not available for partition let it be excluded from actual division. But if any party contests it can be enquired into but in that stage if the litigation is to take a protracted trial then with respect to the same the Court is directed to pass a supplemental final decree later. R.F.A. No.269 of 2004 6 (5) If the parties pay Court fee, properties are to be allotted to their share respectively and the stamp value already purchased and produced has to be taken into account in the final decree proceedings. Notice had to be issued to all the sharers concerned mentioned above or to their counsel for proper representation of the matter. Let the matter be expeditiously be disposed of at any rate within a period of four months from the date of first appearance of the parties before the Court below (6) Parties are directed to appear before the Court below on 1.11.2010. (7) If the eviction decree relates to the property involved in the suit the execution of that be stayed till a final decree is passed in this case. (8) Refund of whole Court fee is allowed. M.N.KRISHNAN, JUDGE ln