IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 12TH AUGUST 2009 / 21ST SRAVANA 1931 WP(C).No. 731 of 2009(K) ---------------------------------- OS.531/2003 of MUNSIFF COURT, CHITTUR .................... PETITIONER(S): ----------------------- BALAKRISHNAN, S/O.PONNANDI, AGED 54 YEARS, RESIDING AT PEDAMURYKALAM, KIZHAKKETHARA AMSOM, CHITTUR TALUK, PALAKKAD. BY ADV. MR.RAJESH SIVARAMANKUTTY RESPONDENT(S): ------------------------- 1. KRISHNANKUTTY, S/O.PONNANDI, RESIDING AT PEDAMURYKALAM, KIZHAKKETHARA AMSOM, CHITTUR TALUK, PALAKKAD. 2. VASUDEVAN, S/O.PONNANDI, RESIDING AT PEDAMURYKALAM, KIZHAKKETHARA AMSOM, CHITTUR TALUK, PALAKKAD. 3. NARAYANAN, S/O.PONNANDI, RESIDING AT PEDAMURYKALAM, KIZHAKKETHARA AMSOM, CHITTUR TALUK, PALAKKAD. 4. MADHAVAN, S/O.PONNANDI, RESIDING AT PEDAMURYKALAM, KIZHAKKETHARA AMSOM, CHITTUR TALUK, PALAKKAD. 5. VIJAYAN, S/O.PONNANDI, RESIDING AT PEDAMURYKALAM, KIZHAKKETHARA AMSOM, CHITTUR TALUK, PALAKKAD. 6. DHAKSHAYANI, W/O.C.MADHAVAN, RESIDING AT K.P.KALAM, VATTEKADAMSAM, CHITTUR TALUK, PALAKKAD DISTRICT. 7. BHARGAVI, W/O.RADHAKRISHNAN, RESIDING AT MOYAR, NEELAGIRI, TAMIL NADU STATE. * 8. KANDUNNI, S/O.LATE SANKARAN, RESIDIG AT ARAYAKALAM, KIZHAKKETHARA AMSOM, CHITTUR TALUK, PALAKKAD DISTRICT. (DELETED) * R8 IS DELETED FROM PARTY ARRAY, AT THE RISK OF THE PETITIONER AS PER ORDER DTD. 21.6.09 IN IA. 4949/09. 9. PANKAJAKSHY, W/O.KESAVAN, RESIDING AT PARAKKALAM, PAYYALLUR, KOLLENGODE NO.II VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. 10. ANITHA, D/O.KESAVAN, RESIDING AT PARAKKALAM, PAYYALLUR, KOLLENGODE NO.II VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. 11. KRISHNAKUMARI, D/O.KESAVAN, RESIDING AT PARAKKALAM, PAYYALLUR, KOLLENGODE NO.II VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. 12. DEVADAS, S/O.KESAVAN, RESIDING AT PARAKKALAM, PAYYALLUR, KOLLENGODE NO.II VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. 13. PREETHI, D/O.KESAVAN, RESIDING AT PARAKKALAM, PAYYALLUR, KOLLENGODE NO.II VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. R1 BY ADV. MR.P.R.VENKETESH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.731/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE JUDGMENT IN OS. 531/03 OF THE MUNSIFF'S COURT, CHITTUR DTD. 31.3.05. P2:- COPY OF THE COMMISSION REPORT FILED IN OS. NO.531/2003 DTD. 20.6.08 BEFORE THE MUNSIFF'S COURT , CHITTUR. P3:- COPY OF THE ORDER DTD. 1.12.08 PASSED IN FD I.A. NO.1671/05 IN OS. 531/03 BY THE MUNSIFF'S COURT, CHITTUR. RESPONDENT'S EXHIBITS R1(a):- COPY OF THE ORDER DTD. 20.11.08. R1(b):- COPY OF THE CHEQUE APPLICATION OF PETITIONER DTD. 20.5.09. R1(c):- COPY OF THE COMMISSION REPORT DTD. 4.9.04. TRUE COPY P.A. TO JUDGE tss S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.731 OF 2009 -------------------------- Dated this the 12th day of August 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Call for the records leading to Ext.P3 and quash the same by means of a writ of certiorari or such other writ in the like nature, direction or order. ii) To award the cost of this writ petition to the petitioner. iii) To pass such other orders fit and proper in the facts and circumstances of the case and that may be prayed hereafter. W.P.(C).No.731 OF 2009 Page numbers 2. Petitioner is the plaintiffs in a suit for partition in which final decree proceedings are in progress. An advocate commissioner after conducting inspection over the various items of properties submitted a report valuing each item to enable the court to pass a final decree in terms of the allotment made on the respective sharers under the preliminary decree. The court after examining the commission report and the valuation made in respect of each item ordered for public auction of the property except the house described as 'A' schedule in the commission report. First defendant is admittedly residing in the 'A' schedule building comprised in a property having an extent of 7.5 cents. The court has earlier passed an order for allotting 'D' schedule having an extent of 16.5 cents towards the share of the first defendant . Value of 'A' schedule building is assessed by the commissioner at Rs.80,000/- whereas 'D' schedule property earmarked the allotment of W.P.(C).No.731 OF 2009 Page numbers the first defendant, at Rs.97,500/-. The court, earlier, under Ext.R1(a) order has held applying the principles of equity that 'A' schedule building has to be alloted to the first defendant. While ordering for public auction of the items of the suit properties the court ordered that in lieu of 'D' schedule property alloted in favour of the first defendant the building 'A' schedule shall be given and 'D' schedule should be brought in for public auction. Propriety and correctness of that part of Ext.P3 order passed by the court is challenged in the writ petition by the plaintiff contending that for making such reservation and modification the court has not conducted any enquiry nor given any opportunity to the parties to raise their objections. 3. I heard the counsel on both sides. It is noticed that under R1(a) order dated 20/11/2008 before passing or Ext.P3 order the court has found that on the principles of equity, 'A' schedule W.P.(C).No.731 OF 2009 Page numbers building has to be provided to the share of the first defendant. That order has not been challenged by the plaintiff or any of the parties. Further more it is seen that valuation of the 'D' schedule property is much more than the value of 'A' schedule building. So much so, no grievance can be raised by any of the parties in the suit, in providing 'A' schedule building on the basis of equity to the first defendant. More than that, it is for the court to apply the principles of equity while making division of the properties, and no party can impeach the propriety and correctness of the court in passing appropriate orders on equitable consideration. Writ petition lacks merit, and it is closed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv