IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 4TH FEBRUARY 2009 / 15TH MAGHA 1930 AS.No. 200 of 1995(C) ------------------------------- AGAINST THE ORDER DATED 25/01/1992 IN IA.4354 IN OS.33/1978 of IST ADDL.SUB COURT, KOZHIKODE .................... APPELLANT(S): PLAINTIFF IN THE LOWER COURT ---------------------- A.P.SREEDHARI SIVA RAJ, 3/101, M.D. MENON'S COMPOUND WEST- NADAKKAV, CALICUT. BY ADVS. MR.K.G.GOWRISANKAR RAI MR.KODOTH PUSHPARAJAN RESPONDENT(S): DEFENDANTS IN THE LOWER COURT ------------------------ *1 A.P.MYTHILYU, KUMARA MANDIRAM, THALASSERY TALUK, THIRUVANGADI CHIRAKKARA DESOM.(DIED) THE LEGAL REPRESENTATIVES OF THE DECEASED IST RESPONDENT. RESPONDENTS 2 TO 6 WHO ARE ALREADY IN THE PARTY ARRAY AE RECORDED AS THE LEGAL REPRESENTATIVES OF THE DECEASED IST RESPONDENT VIDE ORDER DT. 4.6.04 ON MEMO C.F. 11423/03. 2. A.P.RAJASEKHARAN, DEEPAK BHAVAN, NEW HAMAE. 3. A.P.NALINI, EMPLOYED IN THE OFFICE OF THE SPECIAL RANGE INCOME TAX OFFICE, MADRAS 92. 4. A.P. RAJA RATNAM, KUMARAMANDIRAM, CHIRAKKARA P.O., THALASSERY. 5. A.P. CHNDRI, KUMARA MANDIRAM, CHIRAKKARA P.O., THALASSERY. 6. A.P.SATHY, KUMARAMANDIRAM, CHIRAKKARA P.O., THALASSERY. AS. 200/1995 *7. P.P.MEENAKSHI, PANDYPARAMBIL HOUSE, KARYAKUNNU DESOM, KOZHIKODE TALUK, KOZHIKODE.(DIED) *THE LEGAL REPRESENTATIVES OF THE DECEASED 7TH RESPONDENT 8. C.RADHAKRISHNAN, 3/231, 'UPASANA', WEST NADAKKAVU, CALICUT 675 011. 9. C.RAMACHANDRAN DO. DO. 10. C.USHA RAJALAKSHMI DO . DO. ADDL. RESPONDENTS 8 TO 10 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 7TH RESPONDENT VIDE ORDER DT. 19.10.2004 ON IA. 2680/04. R2 TO R6 BY ADVS. MR.NIRMAL. S SMT.P.JYOTSNA THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 04/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.3620/1995 IN AS. NO.200/1995 Dismissed 04.02.2009 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 200 OF 1995 = = = = = = = = = = = = = = = Dated this the 4th day of February, 2009. J U D G M E N T This is an appeal preferred against the final decree passed in O.S.33/78 of the Subordinate Judge, Kozhikode. The suit was one for partition and the property was ordered to be divided into seven equal shares whereby the plaintiff and defendants 1 to 6 were each entitled to 1/7 shares in the property. After the passing of the preliminary decree and during the pendency of the final decree the first defendant, mother died and there was a request to allot her share other than the property assigned to D7 and for that purpose the Commissioner's plan and report were remitted but due to non- cooperation of the parties the Commissioner did not effect any allotment in that fashion and kept plot No.4 in Ext.C11 plan as the property that D1 was entitled to. Thereafter the Court proceeded to consider the matter, considered the objections raised by the parties and passed a final decree allotting plot A.S. NO. 200 OF 1995 -2- No.1 to the 6th defendant, plot No.2 to the plaintiff, plot No.3 to D3, plot No.5 to D5, plot No.6 to D2 and plot No.7 to D4. The property of the mother was kept as unallotted share as plot No.4 having a total extent of 3.789 cents. It is against that decision the plaintiff has come up in appeal and by virtue of an amendment application I.A.3256/08 she has requested to raise additional grounds to the memorandum of appeal wherein there is a specific contention that instead of allotting plot No.2 to her the Court should have allotted plot No.1 to her and the grievance was that she did not have a passage. She also had requested for the remission of the Commissioner for the said purpose. In the original memorandum of appeal the main challenge is with respect to the non-allotment of mother's share to the other sharers after her death. 2. Heard the learned counsel for both sides and first I will answer the question regarding change of allotment. The Commissioner who had inspected found that the actual extent that is available for division by metes and bounds is 89.46 cents. In the plaint the extent was shown as 99 cents and on A.S. NO. 200 OF 1995 -3- actual measurement it was found to 99.727. Out of this 3.422 cent was excluded as kudikidappu, another 5 cents was excluded as karaima land and 1.899 cents was excluded for the purpose of providing a common pathway to the parties. The change of allotment what is prayed for is with respect to plot No.1 and 2. They are lying adjacent and plot No.2 is on the northern side of plot No.1. Plot No.2 is having a passage on the northern side which takes one to the railway line. If there is an inter change of plots 1 and 2 again similar contention which the plaintiff wanted to raise will be raised by the 6th defendant. Further all the properties of that side namely plots 1, 2 and 3, is having a railway line on one side of the property. Therefore it does not make any difference. Extent vice also plots 1 and 2 are almost similar, i.e. plot No.1 is 12.773 cents and plot No.2 is 12.745 cents. Therefore I do not find any reason to alter the allotment made by the Commissioner which he had done after inspecting the property. So the said request cannot be entertained. A.S. NO. 200 OF 1995 -4- 3. Now, the next question is regarding the share of the mother. The unallotted share of the mother comes to 3.789 cents. The plaintiff and defendants 2 to 6 are entitled to succeed to the share of the mother as 1/6 shares. If this 1/6th share is worked out, out of plot No.4 each sharer will be entitled to 0.63 cents. After hearing the learned counsel for both sides learned counsel for the respondent submitted before me that in fact all the sharers have joined together to assign the entire property in favour of a third person and for that purpose they have fixed the land value at Rs.1 lakh per cent. I am informed that the plaint schedule property is situated in Nadakkavu in Kozhikode District and it is having the railway line as one boundary. So it will be safe to take the value of the land at Rs.1 lakh per cent. There is no point in directing the Commissioner again to divide this insignificant extent to be added and it will take another two decades for a satisfactory disposal of the case and therefore I consider it as proper and just to put an end to the fight between the parties as well as the litigation and therefore I take the view that for A.S. NO. 200 OF 1995 -5- the .63 cents of land an amount of Rs.60,000/- can be paid to the plaintiff and with that the unallotted share plot No.4 can be allotted to defendants 2 to 6 together. Or in other words towards equalisation of shares the plaintiff will be entitled to an amount of Rs.60,000/- more, over and above what is stated in the final decree. But I find in the final decree she is liable to pay some amount to the first defendant. What ever it may be, towards the share of the mother the plaintiff will be entitled to Rs.60,000/- and for the same defendants 2 to 6 in the suit are liable to pay at the rate of Rs.12,000/- each and the respective plots allotted to them under the final decree shall be a charge. Or in other words, the plaintiff is entitled to realise that amount out of the shares allotted if the amount is not paid by the defendants 2 to 6. With this modification the appeal is disposed of. M.N. KRISHNAN, JUDGE. ul/- A.S. NO. 200 OF 1995 -6- M.N. KRISHNAN, J. = = = = = = = = = = A.S. NO. 200 OF 1995 = = = = = = = = = = = J U D G M E N T 4th February, 2009.