IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE FRIDAY, THE 23RD MAY 2008 / 2ND JYAISHTA 1930 AS.No. 321 of 1998(A) --------------------- AGAINST THE ORDER IN IA 2467/88 IN OS.73/1985 of SUB COURT, VADAKARA .................... APPELLANT: ----------- 1. C.M.JANAKI, W/O. LATE T.NARAYANAN NAIR “UMA” P.O. PURAMARI – 673 503. 2. DEEPA NAIR, D/O. LATE T.NARAYANAN NAIR, “UMA” P.O. PURAMARI 673 503. BY ADV. SRI.N.L.KRISHNAMOORTHY SRI.K.LAKSHMINARAYANAN SMT.SATHYA SHREEPRIYA RESPONDENTS: ------------- 1.E.K.MANIKANDAVARAMA RAJA, S/O. VAMANAN NAMBOODIRI, F.T.C.M.K.R. HIGH SCHOOL, PURAMARI AMSOM DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. 2.EDAVALATH KOVILAKATH RADHA THAMPURATTI, ALINGAL PARAMBU, P.O. ELAMAKARA (VIA) EDAPPALLY, ERNAKULAM DISTRICT. (DIED). 3.EDAVALATH KOVILAKATH SUBHADRA THAMPURATTY, PARVATHI VILLA, POKKANASSERI, KANNUR DISTRICT. 4.E.K.HEMALATHA (MINOR) PARAVATHI VILLA, POKKANASERI, KANNUR DISTRICT. 5.E.K.SASIDHARAN, (MINOR) PARVATHI VILLA, POKKANASSERI, KANNUR DISTRICT. 6.EDATHATTA PUTHANPURAYIL APPUKUTTAN NAIR THEKKE VALAPPIL P.O., MUYIPPOTH, MUYIPPOTH AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRIT. 7. PILAVULLATHIL PARAMBATH GANGADHARAN, P.O. PURAMERI, PURAMERI AMSOM DESOM, KOZHIKODE DISTRICT. 8. UDHAYAPURATH THAZHAKUNIYIL, KUNHIMADHAVI AMMA, P.O. PURAMERI, PURAMERI ASOM DESOM. VADAKARA TALUK, KOZHIKODE DISTRICT. 9. OTHAYOTH LAKSHMI. EDAVALATH KOVILAKM, PURAMERI AMSOM DESOM VADAKARA TALUK, KOZHIKDOE DISTRICT. 10. KANDOTHUMMEL MATHU, EDAVALATH KOVILAKAM, PURAMERI AMSOM DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. 11. PRABHALAYATHI PRABHAKARAN, CLERK, SERVICE CO-OPERATIAVE BANK, PURAMERI. 12. BROTHER BHASKARAN, C.R.P. PRABHALAYAM, P.O. PURAMERI, DO. 13. VELAYUDHA MARAR, EDAVALATH KOVILAKAM PARAMB, P.O. PURAMERI, DO. 14. KOZHIKALATHIL MOZHAN NARAYANAKURUP, PATTAYAM AMSOM, KONGATT DESOM, THALASSERI TALUK, KANNUR DISTRICT. (DELETED) 15. KOLAKKODANTTAVIDA GOVINDAN, EDACHERI AMSOM DESOM VADAKARA TALUK. 16. UDHAVAPURATH TAZHEKUNIYIL SURENDRAN, PURAMERI, PURAMERI AMSOM DESOM, VADAKARA TALUK. (RESPONDENTS 4 & 5 ARE MINORS REPRESENTED BY 3RD RESPONDENT) (R14 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONERS VIDE ORDER DATED 4.3.2002 ON CMP 986/2002) IT IS RECORDED THAT R1 AND R3 ARE THE LEGAL REPRESENTTIVES OF THE DECEASED R2 VIDE ORDER DATED 25.8.2006 ON THE APPEAL.) BY ADV. SRI.A.P.CHANDRASEKHARAN (SR.) SRI.C.VALSALAN SRI.K.P.DANDAPANI (SR.) FOR R1 SRI.R.BHASKARAN FOR SMT.PRABHA R.MENON FOR SRI.R.K.MURALEEDHARAN (R15) THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 23/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP NO.2453/1008 IN A.S. NO.321/1998 DISMISSED 23.5.2008 SD/- PIUS C.KURIAKOSE, JUDGE. /TRUE COPY/ P.A. TO JUDGE. PIUS C. KURIAKOSE, J. ---------------------------------- A.S. NO. 321 of 1998 ---------------------------------- Dated this the 23rd day of May , 2008 JUDGMENT This appeal is directed against the final decree in a suit for partition. On the terms of the preliminary decree, the land forming part of the decree scheduled property is to be divided into five equal shares and the plaintiff is to be alloted one share upon his depositing 4,200/- and the remaining four shares in the land is to be alloted to the fifth defendant. The Building situated on the A schedule property is to be divided into six equal shares and the plaintiff is to be allotted one such share while the remaining shares in the building are to be allotted to the 6th defendant who is survived by the present appellant. The final decree court deputed a commissioner who submitted Ext.P-C1 report, C1(a) plan and C(a) to C1(e) share list. Three modes of allotment were suggested by the Advocate Commissioner. Going by the first mode suggested, the plots R series is to be allotted A.S. No.321/1998 2 to the plaintiff and he will have to make up for the deposit amount of Rs.2721.60 which have to be paid by him. As per that mode, the 6th defendant who is now survived by the present appellant will be allotted the house. Going by the second mode suggested the house is being allotted to the plaintiff along with the 6th defendant and is made eligible to receive 62011.95 as share value. As per the third mode the house is allotted to the plaintiff and the 6th defendant is to receive the building and sum of Rs.48273.40 as deposit. 2. The grievance of the appellant is that though he owned major shares as per the preliminary decree over the building in question, he has not been allotted the building. It is urged that the plaintiff who is alloted the house on the basis of principles under Section 4 of the Partition Act and Section 44 of the Transfer of Properties Act on the ground that he ,unlike the present appellants and the 6th defendant, as a family member had not raised any claims either in equity or in law for allotment in his favour at the preliminary decree stage. It is urged that the plaintiff had come to own the residential building as legal representative of his wife and is retaining that house even now. A.S. No.321/1998 3 The building is under the occupation of the appellant who have used it for occupation and for conduct of bajana during sabarimala season. 3. I have heard the submission of Srii.K.Lakshminarayanan, the learned counsel for the appellant and Sri. K.P.Dandapani, The learned counsel for the first respondent. I heard the learned counsel for the co-respondents also. But the issue arising and to be decided is only the issue regarding the allotment of the house to which only the appellant and the first respondent are concerned. The evidence before the final decree court consisted of a oral testimony of plaintiff PW1 and the court's exhibits viz. The Commissioner's report, plans sharelist, valuation account etc. PW1 stated in his evidence that he has no house to reside but he has no explanation to offer as to why he did not raise any claim over the house at the preliminary decree stage either in law or in equity. It is stated by him that as legal representative of his wife who passed away he has come to own residential house. He would state that his wife 's share has been assigned to wife's brother. Significantly no document of evidence has been adduced by the first respondent A.S. No.321/1998 4 to substantiate the version that his wife's share has been assigned to his brother in law. More significantly the preliminary decree was accepted by the first respondent and under that preliminary decree what has been allotted to the first respondent is only 1/6th share in the house in question. 4. The learned counsel for the first respondent would reiterate that the first respondent has assigned his wifes share in favour of wife's brother. He would also argued by referring to Sections 15 and 16 of the Hindu Succession Act that since the first respondent and his wife are demised, the first respondent's wife share is reverted by virtue of Section 15 (2) not on the first respondent but upon heirs of the father. As per the arguments based on Section 15(2) which is to be noticed that the evidence adduced in the case is not sufficient to decide as to what was the nature of the share which the first respondent's wife had in the property left behind by her at the time of demise whether it was the property inherited by her from the parents in which case Section 15 (2) adopted. The learned counsel for the appellant would submit that the appellant was advised that it was not necessary to adduce counter evidence PW1's version A.S. No.321/1998 5 regarding claim for allotment of the house since version was not founded claim at the preliminary decree stage and the preliminary decree specifically allowed 6 out of five shares in the building to the 6th defendant. Even in the final decree application submitted by the first respondent the prayer was that final decree be passed in terms of the preliminary decree. The claim founded on Section 4 of the Partition Act and Section 44 of Transfer of Properties Act are claims which are not founded in buildings. The above submission of the learned counsel for the appellant has some force. At the same time, the circumstances that the appellant has not adduced any counter evidence at all. But whatever evidence which was adduced by PW1 cannot be ignored. 5. Considering the totality of the circumstances which attend on this case, I am of the view that matter should be relegated back to the final decree court so that the court will decide the case as to which of the two modes first or the third suggested by the Advocate Commissioner should be accepted. Accordingly, allowing the appeal, final decree and judgment are set aside and the mater is remitted to the court below. The A.S. No.321/1998 6 court below afford an opportunity to present appellant and the first respondent to adduce further evidence regarding the entitlement for allotment of the buildings. Since the issue is between the plaintiff and the present appellant alone , it is not necessary that the either parties to the suit should be involved in the enquiry. Enquiry as directed above will be completed and fresh judgment and decree will be passed by the court at the earliest and at any rate within four months of receiving a copy of this judgment. It is made clear that final decree stands confirmed so far as parties other than the plaintiff and the present appellant are concerned. It is needless to mention as regards the allotment to the present claim under the 5th defendant the final decree stand confirmed. The plaintiff and the appellant will appear before the Court below on 2.7.2008. PIUS C. KURIAKOSE JUDGE dpk A.S. No.321/1998 7 PIUS C. KURIAKOSE, J. ---------------------------------- A.S. NO. 321 of 1998 --------------------------------- JUDGMENT 23RD MAY 2008