IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 9TH DECEMBER 2009 / 18TH AGRAHAYANA 1931 AS.No. 296 of 1996() -------------------- AGAINST THE ORDER DATED 08/03/1995 IN IA.1540/93 IN OS.1/1992 of PRL.S.C.,THALASSERY .................... APPELLANT: -------------- KUNNAPPADI KALLIANI D/O. CHATHU, AGED 77 YEARS, RESIDING AT PATHIRIYAD AMSOM, POST. MAMBRAM : DIED THAZHE KAYALODE, THALASSERY DIST. KANNUR ADDL RESPONDENT IMPLEADED: IT IS RECORDED THAT THE FIRST APPELLANT IS DEAD AND SMT. K. PREMAVALLY, D/O. K. KRISHNAN, INDIRA NIVAS, KOTTEYAMPOYIL PO., KOTTAYAM AMSOM AND DESOM, THALASSERY TALUK, KANNUR DIST IS IMPLEADED AS ADDL. 2ND RESPONDENT VIDE ORDER DATED 14.6.2002 ON C.M.P. NO: 5030/01. BY ADV. SRI. E.. V. NAYANAR SMT.VIDHYA. A.C RESPONDENTS: --------------- 1. LEKHARAJ, D/O. PADMANABHAN RESIDING AT SARASWATHAM, CHOVVA, KANNUR DIST. 2. NIRMALRAJ, S/O. LATE RAJAN AGED 10 YEARS, (MINOR) STUDENT THROUGH HIS MOTHER NEXT FRIEND AND GUARDIAN 1ST RESPONDENT. BY ADV. SRI.CIBI THOMAS SRI.T.A.RAMADASAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 18/11/2009, THE COURT ON 09 /12 /2009 DELIVERED THE FOLLOWING: ORDER ON C.M.P. NOS. 1975/1996 AND 4762/1996 ON A.S. NO: 296 OF 1996 DISMISSED. SD/- K.M.JOSEPH (JUDGE) SD/- M.L.JOSEPH FRANCIS (JUDGE) 9.12.2009 K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - A.S.No. 296 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of December, 2009 JUDGMENT Joseph Francis, J. This appeal is originally filed by the respondent/third defendant in I.A.No. 1540 of 1993 in O.S.No. 1 of 1992 on the file of the Sub Court, Tellicherry. Respondents 1 and 2 herein are petitioners 1 and 2/plaintiffs in that suit. 2. The facts of the case are briefly as follows: The respondents filed O.S.1 of 1992 before the Sub court, Thalasserry praying for a decree of partition and for separate allotment of their share in the plaint schedule properties. The plaintiffs claimed plaint 'A' schedule properties belonged to one deceased Rajan, the husband of the first plaintiff and the father of the second plaintiff exclusively as per a partition deed dated 28.5.1984. Rajan died on 6.5.1989. They averred A.S.No. 296 of 1996 2 that the appellant therein, who is the third defendant in the suit, is the mother of the said deceased Rajan and the plaintiffs and the third defendant are the legal representatives of deceased Rajan under the Hindu Succession Act. Accordingly, the plaintiffs are entitled to 2/3 shares and the 3rd defendant is entitled to 1/3 share of Rajan's properties. In the original Plaint A schedule consisted of 4 items of immovable properties and 'B' Schedule contained the business run in the name of “Bata Agencies”. 3. In the suit, the appellant herein ,who is the third defendant, filed a written statement contending that as per the partition karar relied on by the plaintiffs, deceased Rajan was alloted 3 item of immovable properties as 'F' Schedule to the said karar. Items 1 and 2 shown in the plaint A schedule are one property shown as item No.1 of Schedule 'F'. The plaint schedule item No.3 is item No.2 of 'F' schedule and it belonged to deceased Rajan and his brothers Surendran, Prakashan and sister Premavally and that property belonged to all of them jointly. The A.S.No. 296 of 1996 3 said item did not belong to deceased Rajan exclusively. The plaint A schedule items 3 and 4 are items 2 and 3 of F schedule. 4. In the partition deed itself it has been clearly stated that until the death of the third defendant mother she is entitled to take the income from those properties and also that she is entitled to the management of the school included in the said items. She contended that the property was divided as per the partition karar reserving the right of the third defendant to take income and to manage the school during her life time. Deceased Rajan nor his wife and child could have any right in the income from the property or to the management of the school until the death of the third defendant and that the partition, if any, can be effected only reserving these right in favour of the third defendant. 5. The third defendant further contended that since additional accommodation was necessitated by increased admission of students, the third defendant was forced to construct an additional building after A.S.No. 296 of 1996 4 the death of Rajan. The third defendant has constructed the additional building for the school by spending her own money to the tune of Rs.1 lakh and she is entitled to the amount in the event of partition. She claimed that since she is the 1/3 holder of the property, where the school is situated, that she had made improvements in the property and that she has right to manage the school till her death, the property, wherein the school is situated, should be alloted to her. 6. In the suit the court passed a preliminary decree on 8.1.1993 by consent of the parties on the basis of endorsement made on the plaint. The preliminary decree so passed provided that the rights in respect of item No.2 of Plaint 'A' schedule and plaint 'B' schedule are left open to be decided in a separate suit. The plaint items 1 and 3 of plaint 'A' schedule are ordered to be partitioned into 3 equal shares and the plaintiffs are ordered to be entitled to 2/3 share and the third defendant is entitled to 1/3 share. It is also decreed that defendants 1 and 2 have no share in items 1 A.S.No. 296 of 1996 5 and 3. It is further directed that the third defendant is entitled to take income from item No.3 till her death. The question of equity and reservation are left open to be decided in the final decree proceedings. 7. The plaintiffs filed I.A.No. 1540 of 1993 for passing a final decree in accordance with the preliminary decree. An Advocate Commissioner was appointed to effect partition of the properties ordered for partition in terms of the preliminary decree. He submitted valuation account, plan share list and report. Since there is a dispute with regard to the allotment of the school situated in the property, PW1 was examined for the petitioners and Ext.A1 was marked. RW1 was examined for the respondent and Exts.B1 and B2 were marked. 8. The learned Sub Judge, on considering the matter, accepted the valuation account, plan, share list and commission report submitted by the Advocate Commissioner and marked A.S.No. 296 of 1996 6 respectively as Exts.C1 to C4 and a final decree is passed as follows: “(1) Plot A, D, D1, E and E1 having an extent of 1 acre and 26-85 cents is allotted to the share of the petitioners, which is shown in Ext.C2 and C2(a) plans. Plot B and C, having an extent of 76.35, is allotted to the share of the respondent. (2) The petitioner will pay Rs.28,172.13 to the respondent as owelty amount to equalise the share value. (3) The cost of the proceedings will borne out by the parties in proportionate to their shares. (4) Ext.C2 and C2(a) plans and Ext.C3 will form part of the decree. (5) The parties will produce necessary amount for purchase of the N.J. Stamps for engrowing the final decree, by 31.8.95.” A.S.No. 296 of 1996 7 Against that final judgment and decree the respondent/third defendant filed this appeal. 9. During the pendency of the appeal, the appellant/third defendant died and Premavally, who is the daughter of the appellant, resting her right under the Will executed by the appellant , was impleaded as additional appellant. 10. Heard the learned counsel for the appellant and the learned counsel for the respondents. 11. Admittedly, the first plaintiff is the widow, second plaintiff is the son and third defendant is the mother of deceased Rajan. As per Ext.A1 Partition Deed dt. 25.8.1984, the petition schedule property along with the school building was allotted to the share of late Rajan and the right to take income was given to his mother, third defendant, till her death. In Ext.A1 Partition Deed there is a clause to transfer the management of the school to Rajan. Rajan died on 6.5.1989. At the time of passing the final decree, the A.S.No. 296 of 1996 8 appellant/third defendant was aged 85 years and she was residing away from the school. The learned counsel for the appellant submitted that the school and the property attached to the school ought to have been allotted to the share of the appellant. As per the preliminary decree passed on consent of the parties, the third defendant was given the right to take the income from Item No.3 property till her death. 12. Admittedly the appellant/third defendant died on 19.6.2001 and till her death she was managing the school. As per Ext.A1 Partition Deed, after the death of the third defendant, management of the school had to be given to Rajan. But Rajan pre- deceased the third defendant. The first plaintiff is the widow of Rajan and second plaintiff is their son, who are having 2/3 share over the petition schedule property, including the school building. Therefore, we are of the view that the learned Sub Judge is fully A.S.No. 296 of 1996 9 justified in allotting the school and the property attached to it to the share of the plaintiffs. 13. The son of the third defendant was examined as RW1. He deposed that the third defendant was managing the school as per the terms contained in Ext.A1 Partition Deed. Ext.B1 is the report of the A.E.O. for the year 1992 with regard to the school. In that report only four rooms are mentioned. RW1 deposed that in 1992 when there were excess students, two additional class rooms were constructed by the third defendant. Ext.B2 is the annual inspection report of the A.E.O. for the year 1993. In that report two additional rooms are shown. 14. The first plaintiff was examined as PW1. In the cross examination PW1 admits that the third defendant has got the right to take income from the property and also to manage the school till her death. PW1 has no case that the additional two class rooms mentioned in Ext.B2 report were constructed by Rajan, who died in A.S.No. 296 of 1996 10 the year 1989. In the counter filed by the third defendant it is stated that she constructed the new two class rooms by spending a total amount of Rupees one lakh. In Ext.C4 commission report filed on 18.3.1993, it is stated that the value of two class rooms which the defendant claims that she has constructed is shown specifically in the account and that the date 1992 has been imprinted on the steps of the room of that building and that the building seems to be rather new than the other building. In the commission report and the accounts the commissioner assessed Rs.28,172.13 as owelty to be paid to the third defendant to equalise the share and Rs.98,180/- as the value of two class rooms. 15. The learned counsel for the appellant submitted that if the school is allotted to the share of the plaintiffs, the amount shown by the commissioner as value of the two class rooms may be given to the appellant. The plaintiffs have no case that the new two class rooms mentioned in Ext.B2 report were constructed by Rajan A.S.No. 296 of 1996 11 during his life time and the plaintiffs also have no case that they have spent any amount for the construction of the two class rooms. Therefore, it is only just and reasonable to accept the case of the third defendant that the two new class rooms were constructed by the third defendant spending her own money. 16. Admittedly the appellant/third defendant was managing the school till her death on 19.6.2001. Two class rooms were constructed in the year 1993. Now the appellant/third defendant is no more and additional appellant is impleaded on the basis of the will executed by the appellant. Considering all these aspects of the matter, we are of the view that Rs.50,000/- can be allowed to the additional appellant as value of improvements. In view of the above aspect of the matter, the final decree passed in the above case has to be modified allowing the additional appellant to realise Rs.50,000/- as value of improvements. A.S.No. 296 of 1996 12 16. Accordingly this appeal is allowed in part. The final judgment and decree is confirmed with a modification that the plaintiffs shall pay Rs.50,000/- to the additional appellant towards value of improvements within six months from this date. The parties are directed to suffer their respective cost in this appeal. (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm