IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 14TH JANUARY 2009 / 24TH POUSHA 1930 AFA.No. 64 OF 1994 -------------------- AGAINST THE JUDGEMENT IN AS.5/1982 Dated 25/11/1992 IA.1734/1974 IN O.S. 16/69 OF SUB COURT, VADAKARA APPELLANTS/APPELLANTS: 1. VANNANKANDI GANGADHARAN VYDIAR, RESIDING AT PARAPPANANGUNDI, THRIKOTTUR AMSOM, PALUR DESOM. 2. VANNAKANDI KUNHIKRISHNAN VYDIAR RESIDING AT PANAYULLAKANDY DO.DO. (DIED) 3. V.K. SREENIVASAN, SAI SADAN, P.O. THRIKOTTIL, KOZHIKODE DIST. 4. V.K. RADHA, W/O. LATE KUNHIKRISHNAN VYDIAR PANAYUTTAKANDHI HOUSE, P.O. THRIKOTTI, KOZHIKODE. 5. V.K. RADHAKRISHNAN, D/O. LATE KUNHIKRISHNAN VYDIAR, DO.DO. 6. V.K. SAI PRASANNA, D/O. LATE KUNHIKRISHNAN VYDIAR, PANAYULLAKANDI HOUSE, P.O. TIKKOT. 7. V.K. PUSHPAVALLY, D/O. LATE KUNHIKRISHNAN VYDIAR, DO.DO. (ADDL. PPELLANTS 3 TO 7 ARE IMPLEADED AS PER ORDER DATED 8.4.1994 ON CMP NO. 294/93. BY ADV. SRI.P.N.K.ACHAN(SR) RESPONDENTS/RESPONDENTS: 1. V. ARAYANAN VYDIAR RESIDING AT KUNIYIL OF THRIKKOTTUR AMSOM PALUR DESOM. 2. V.PADMANABHAN VYDIAR, RESIDING AT PADMALAYAM, DO.DO. 3. VANNANKANDI RAGHAVAN VYDIAR, RESIDING AT NELLOLI, DO.DO 4. VANNANKANDI NANU VYDIAR, DO.DO. AFA 64/1994 :2: 5. VANNANKANDI UNICHIRAKUTTY RESIDING AT VALAPROTH, ULLIERI AMSOM DESOM (DIED) (LRDS. IMPLEADED). 6. KALLATT LAKSHMI, DO.DO 7. VANNANKANDI NARAYANI RESIDING AT ILLYANANKANDI DO.DO. 8. VANNANKANDI NANI ALIAS NARAYANI, RESIDING T KAVILUMPARAKKAL, IYYAD AMSOM, DESOM. 9. P.P. LAKSHMI, LAKSHMI NILAYAM, TIKKOTI, THRIKKOTTUR AMSOM, PALUR DESOM. 10. V.K. RADHA BHASKARAN, RAILWAY QUARTERS NO. 26, GUNTAKKAL ANDHRA PRADESH. 1. V.K. RAVEENDRAN, TIKKOTI THRIKKOTTUR AMSOM, PALUR DESOM. 12. V.K. VIJAYAN (DR.), C.M.R. EAST SPUR TANK ROAD, CHETPET, MADRAS - 600031. 13. MRS. V.K. NEENA JAYARAN, C/O. DR. T. JAYARAJ, GOVT. AYURVEDIC DISPENSARY, MADAVOOR P.O., ERAVANUR, VIA. KUNNAMANGALAM. 14. V.K. SHEELA (MONR), TIKKOTTI, THRIKKOTTUR AMSOM, PALUR DESOM. 15. V.K. ASOKAN (MONR) DO.DO. 16. LAKSHMII, DO.DO. 17. SHAILAJA (MIOR), DO.DO. 18. SREEJA (MINOR), DO.DO. 19. HEMANDI (MINOR), DO.DO. ( 14 & 15 BY GUARDIAN 9TH RESPONDENT & 17 TO 19 BY GUARDIAN 16TH RESPONDENT.) 20. VELAPURATH GOVINDAN, S/O. VALAPURATHH CHOYI, VALAPURATH HOUSE, ULLYERI P.O., QUILANDY TALUK, KOZHIKODE DISTRICT. 21. VALAPURATH KRISHNAN, S/O. VALAPURATH CHOYI, VALAPURATH HOUSE, ULLYERI P.O., KOZHIKODE DIST. AFA 64/1994 :3: 22. VALAPURATH MADHAVI, D/O.. VALAPURATH CHOYI, KULANGARAKUZHIYIL HOUSE, ULLYIRI P.O., QUILANDY TALUK, KOZHIKODE DISTRICT. 23. VALAPURATH YESODHA, D/O. VALAPURATH CHOYI, KOLLYERI HOUSE, AVIDANELLOOR P.O., QUILANDY TALUK, KOZHIKODE DIST. 24. VALAPURATH NANU, S/O. VALAPURATH CHOYI, KUNIYIL HOUSE, THIKKODI P.O., KOZHIKODE DISTRICT. (DIED. LRS. IMPLEADED.) (ADDL. RESPONDENTS 20 TO 29 IMPLEADED AS THE LRS. OF THE DECEASED 5TH RESPONDENT AS PER ORDER DATED 23.7.1991 ON CMP 938/86). 25. V.K. ANIL, S/O. DECEASED NANU VAIDIYAR, KUNNIYIL HOUSE, THIKKODI P.O., VIA. BADAGARA, KOZHIKODOE DISTRICT. 26. V.K. LEENA, D/O. DECEASED NANU VAIDIYAR, DO.DO 27. V.K. SHEENA, D/O. DO.DO. 28. V.K. SHYNAJAKUMAR, DO.DO. 29. V.K. KAMALA, W/O. NANU VAIDYAR, DO.DO. (ADDL. RESPONDENTS 25 TO 29 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED R.24 WHO IS ONE OF THE LEGAL HEIRS OF THE DECEASED 5TH RESPONDENT AS PER ORDER DATED 23.7.1991 ON CMP 921/91.) ADV. SRI.P.K.APPA NAIR, M.K.S.MENON THIS APPEAL FROM FIRST APPEAL HAVING BEEN FINALLY HEARD ON 14/01/2009, THE COURT ON THE SAME DAY, DELIVERED THE FOLLOWING: AFA 64/1994 :4: ORDER ON CMP NO. 32765/1994 IN A.F.A. 64/1994 // DISMISSED // 14.1.2009 SD/-, P.R. RAMAN, JUDGE. SD/-, C.T. RAVIKUMAR, JUDGE. // TRUE COPY // P.S. TO JUDGE. KNC/- P.R. RAMAN & C.T.RAVI KUMAR, JJ. = = = = = = = = = = = = = A.F.A. NO. 64 OF 1994 = = = = = = = = = = = = = DATED THIS, THE 14TH DAY OF JANUARY, 2009. J U D G M E N T Raman, J. This is an intra-court appeal filed against the judgment of the learned Single Judge in A.S. 5/1982. In a suit for partition, in the final decree proceedings, allotments were made as per the Commissioner's report and account. The third defendant filed an objection seeking to remit the commission report as he had some grievance in the matter of the allotment proposed. The court, after hearing the parties, passed an order and the report was remitted to the Commissioner to file a revised report in accordance with the directions so issued. The Commissioner subsequently visited the property and filed a revised report, effecting modifications in the original report. Accepting the revised report, the court below as per order dated 24.7.1981 in I.A. 1734/1984 in O.S. 16/1969, passed a final decree in terms thereof. That was the subject matter of challenge in the first appeal. The learned Single Judge found no reason to interfere with the impugned order passed by the court below and accordingly, the first appeal was dismissed. Aggrieved thereby, this appeal is preferred. AFA 64/1994 :2: 2. Being an intra-court appeal, this Court cannot treat the present appeal in the same manner as an appeal arising from an order of the subordinate court. At the same time, if there is any illegality arises out of the order passed, necessarily, this Court will have to consider the same. Hence we heard the learned Senior Counsel Sri. Krishnankutty Achan appearing on behalf of the appellant who contended that the revised report submitted by the Commissioner ought to have been accepted. His main grievances are that there is no reason to keep the disputed kudikidappu without being partitioned and there is no justification for the allotment of the Vettilachanda. 3. We have also heard the learned counsel Sri. Mohan C. Menon, and Sri. P.K. Suresh Kumar, appearing on behalf of the contesting respondents. 4. In the order of the Subordinate Court, it is stated in Paragraph 2 that the Commissioner was appointed to divide the property in accordance with the directions contained in the preliminary decree and he filed a report and account which were remitted to him as per order in I.A. 2612/76 dated 13.7.1979. It is further stated that the parties have no objection to the allotment suggested by the Commissioner and so the revised share list submitted by the Commissioner is accepted. Though in the memorandum of AFA 64/1994 :3: appeal filed before this Court, in para 2, the observation of the court below that objection was not filed is disputed, no grounds as such is raised in the appeal. Besides it is not substantiated. Even we have asked the Registry to go through the records to see as to whether any such objection is filed; but it could not be tranced out. We asked the learned Senior counsel to place on record any such objection and admittedly no such objection is there in his files also. Despite the fact being thus, the learned Single Judge had considered the objection as raised by the counsel before that court as is evident from the judgment. Therefore, even in the absence of any such objection filed on record, that objection was considered by the learned Single Judge in the appeal. Those contentions were reiterated before us also. 5. As regards the non-allotment of the kudikidappu is concerned, there is a specific observation by the learned Single Judge that though the party wanted that plot also to be valued, he is not agreeable for allotment of that area towards his share. In other words, everybody thinks that there is a risk element involved in taking the property along with the kudikidappu towards his share because a claim is likely to be raised. Whether such a claim is raised or not, it remains that there exists a kudikidappu, which is excluded from partition. So that if in future, any party feels that there is no AFA 64/1994 :4: kudikidappu or kudikidappu right raised is rejected, it is open to the party then to apply for partition of that property as well. That right is left open. 6. Regarding the allotment of Vettilachanda is concerned, it is allotted to the third defendant because it was used as a store house by him and it is not correct to say that this is something which is allotted to him free of cost or as excess of his share. As a matter of fact, we have found that what is allotted to him is only in accordance with his share as is due. There may be some minor variation herein and there as rightly pointed out by the learned Single Judge, which are not matters for rectification at this stage. As a matter of fact, in the matter of partitioning of property, it is not possible to divide the property to the fullest satisfaction of all. At the same time, the partition has been done in a fair manner without much grievance to any of the parties to be complained of and for a rectification by an appellate court, much less at a second appellate stage. In such circumstances, we refrain to interfere with the judgment under appeal. Accordingly, the appeal is dismissed. P.R. RAMAN, (JUDGE) C.T.RAVIKUMAR, (JUDGE) knc/- AFA 64/1994 :5: P.R. RAMAN & C.T. RAVIKUMAR, JJ. = = = = = = = = = = = = = A.F.A. NO. 64 OF 1994 = = = = = = = = = = = J U D G M E N T 14.1.2009.