IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 15TH JULY 2010 / 24TH ASHADHA 1932 AS.No. 425 of 1999(A) ------------------------------- AGAINST THE ORDER DATED 25/08/1998 IN IA 3500/83 IN OS.165/1972 of PRINCIPAL SUB COURT, PALAKKAD .................... APPELLANT(S): SUPPL.RESPONDENTS 12 TO 18/ LEGAL HEIRS OF DEFENDANT --------------------- NO. 1. 1. YESODHA, W/O. MADHAVAN, THEKKEKATTIL HOUSE, VARODE, KOTTAYI AMSOM AND DESOM, KOTTAYI P.O., ALATHUR TALUK, PALAKKAD DIST. 2. RAMAKRISHNAN, S/O. MADHAVAN, THEKKEKATTIL HOUSE, VARODE, KOTTAYI AMSOM AND DESOM, KOTTAYI P.O., ALATHUR TALUK, PALAKKAD DISTRICT. 3. SUNDARAN, S/O. MADHAVAN, THEKKEKATTIL HOUSE, VARODE, KOTTAYI AMSOM AND DESOM, KOTTAYI P.O., ALATHUR TALUK, PALAKKAD DISTRICT. 4. SUBRAMANYAN, S/O. MADHAVAN, THEKKEKATTIL HOUSE, VARODE, KOTTAYI AMSOM AND DESOM, KOTTAYI P.O., ALATHUR TALUK, PALAKKAD DISTRICT. 5. PREMA, D/O. MADHAVAN, THEKKEKATTIL HOUSE, VARODE, KOTTAYI AMSOM AND DESOM, KOTTAYI P.O. ALATHUR TALUK, PALAKKAD DISTRICT. 6. VASANTHAKUMARI,, D/O. MADHAVAN, THEKKEKKATTIL HOUSE, VARODE, KOTTAYI AMSOM AND DESOM, KOTTAYI P.O., ALATHUR TALUK, PALAKKAD DISTRICT. 7. ANNAMANI, D/O. MADHAVAN, THEKKEKATTIL HOUSE, VARODE, KOTTAYI AMSOM AND DESOM, KOTTAYI P.O., ALATHUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.G.SREEKUMAR (CHELUR) SMT.PREETHY KARUNAKARAN A.S.NO.425/1999 RESPONDENT(S): /SUPPLEMENTAL PETITIONERS 2 TO 6 & RESPONDENTS 3,5 TO ------------------------- 11 & 19 TO 23/ LEGAL HEIRS OF 2ND DEFENDANT, 3RD DEFENDANT, LEGAL HEIRS OF 4TH DEFENDANT & LEGAL HEIRS OF PLAINTIFF. 1. VELAYUDHAN, S/O. VELLAPPAN, KOOTTALATHODI VEEDU, PARUTHIPULLY AMSOM & DESOM, PARUTHIPULLY P.O., ALATHUR TALUK, PALAKKAD DISTRICT. 2. GANGADHARAN, S/O. VELAYUDHAN, KOOTTALATHODI VEEDU, PARUTHIPULLY AMSOM & DESOM, PARUTHIPULLY P.O., ALATHUR TALUK, PALAKKAD DISTRICT. 3. PARAMESWARAN , S/O. VELAYUDHAN, KOOTTALATHODI VEEDU, PARUTIPULLY AMSOM & DESOM, PARUTHIPULLY P.O., ALATHUR TALUK, PALAKKAD DISTRICT. 4. SAROJINI, D/O. VELAYUDHAN, KOOTTALATHODI VEEDU, PARUTHIPULLY AMSOM & DESOM, PARUTHIPULLY P.O., ALATHUR TLAUK, PALAKKAD DISTRICT. 5. BABU, S/O. VELAYUDHAN, KOOTTALATHODI VEEDU, PARUTHIPULLY AMSOM & DESOM, PARUTHIPULLY P.O., ALATHUR TALUK, PALAKKAD DISTRICT. *6. NEELUKUTTY, W/O. KRISHNAN, ELANDHIYAMKODE, KUNNANI, NEAR MANAPPULLIKKAVU TEMPLE, PALAKKAD. (DIED). 7. JANAKI , W/O. KUPPELLAN, VENGALAMPARAMBIL,VARODE, KOTTAYI AMSOM AND DESOM, KOTTAYI P.O., ALATHUR TALUK, PALAKKAD DISTRICT. 8. SWAMINATHAN, S/O. KUPPELAN, VENGALAMPARAMBIL, VARODE, KOTTAYI AMSOM AND DESOM, KOTTAYI P.O. ALATHUR TALUK, PALAKKAD DISTRICT. AS. NO.425/1999 9. PRAKASAN, S/O. KUPPELAN, VENGALAMPARAMBIL, VARODE, KOTTAYI AMSOM AND DESOM, KOTTAYI P.O., ALATHUR TALUK, PALAKKAD DISTRICT. 10. CHENDHAMARA, S/O. KUPPELAN, VENGALAMPARAMBIL, VARODE, KOTTAYI AMSOM AND DESOM, KOTTAYI P.O., ALATHUR TALUK, PALAKKAD DISTRICT. 11. AMBUJAKSHI, D/O. KUPPELAN, VENGALAMPARAMBIL, VARODE, KOTTAYI AMSOM AND DEOSM, KOTTAYI P.O., ALATHUR TALUK, PALAKKAD DISTRICT. 12. ARJUNAN, S/O. KUPPELAN, VENGALAMPARAMBIL, VARODE KOTTAYI AMSOM AND DESOM, KOTTAYI P.O., ALATHUR TALUK, PALAKKAD DISTRICT. 13. INDIRA, D/O. KUPPELAN, VENGALAMPARAMBIL, VARODE, KOTTAYI AMSOM AND DESOM, KOTTAYI P.O., ALATHUR TALUK, PALAKKAD DISTRICT. 14. RAMACHANDRAN, S/O. VELAYUDHAN, THEKKEKATTIL, VARODE, KOTTAYI AMSOM & DESOM, KOTTAYI P.O., ALATHUR TALUK, PALAKKAD DISTRICT. 15. MOHANAN, S/O. VELAYUDHAN, THEKKEKATTIL, VARODE, KOTTAYI AMSOM & DESON, KOTTAYI P.O., ALATHUR TALUK, PALAKKAD DISTRICT. 16. CHENDHAMARAKSHAN, S/O. VELAYUDHAN, THEKKEKATTIL VARODE, KOTTAYI AMSOM & DESOM, KOTTAYI P.O., ALATHUR TALUK, PALAKKAD DISTRICT. 17. NARAYANAN, S/O. VELAYUDHAN, THEKKEKATTIL, VARODE, KOTTAYI AMSOM & DESOM, KOTTAYI P.O., ALATHUR TALUK, PALAKKAD DISTRICT. AS. 425/1999 18. KUNJULAKSHMI, D/O . VELAHUDHAN, NOW RESIDING AT KEEZHPADAM HOUSE, MUNDOOR P.O., PALAKKAD DISTRICT. *ADDL. R19 TO R22 IMPLEADED. 19. THANKAMANI, W/O. LATE DAMODHARAN, ELENTHIYANKODE, KUNNANUR AMSOM, PALAKKAD. 20. SHEEBA, D/O. LATE DAMODHARAN, DO. DO. 21. SHEELA, DO . DO. 22. KRISHNADAS, S/O. LATE DAMODHARAN, DO. DO. *LEGAL REPRESENTATIVES OF THE DECEASED R6 ARE IMPLEADED AS ADDL. R19 TO R22 AS PER ORDER IN IA. 4474/2009 DT. 17.6.2010. R2 TO R5, R19 – 22 BY ADVS. SRI.A.R.GANGADAS R15 BY ADV. SRI.K.R.HARIN, SMT.A.S.SUVITHA, SRI.MAHADEVAN.K THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 15/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. ........................................... A.S.NO.425 OF 1999 ............................................. Dated this the 15th day of July, 2010. J U D G M E N T This is an appeal preferred against the final decree passed in O.S.No.165/1972 of the Subordinate Judge's Court, Palakkad. The legal heirs of the deceased first defendant, who are arrayed as respondents 12 to 18 in the final decree, had filed this appeal challenging the final decree. The points that had been raised in the appeal are: (1) regarding the partability of item No.6 of the decree schedule, (2) valuation given to the house of the first defendant situated in item No.4 of the plaint schedule and (3) valuation given to the property including the mill situated in item No.3 of the plaint schedule. The preliminary decree directs the property be divided into four equal shares and allot one share to the plaintiff and one share each to defendants 1 to 3. 2. The first contention is regarding the availability for partition of the property which is divided by the Commissioner considering it as item No.6 of the plaint schedule. The Commissioner who had inspected the property : 2 : A.S.NO.425 OF 1999 found that the old survey number of the property is 150/3c part and 12 c part with the new survey number 288/8. He was able to identify the property and on measurement, it was found to have an extent of 74 cents of property. Therefore, he divided that 74 cents into four equal shares and alloted to the respective parties. There was no contention at any point of time regarding non availability of partition of this property. It will be really beyond the scope of a final decree to consider the availability of property for partition when it has become final by virtue of the preliminary decree. Further the trial court has held that there is no case for the contesting parties to the effect that Mainanparamba which is described as item 6 is not available. Therefore from these discussions, I hold that the first objection cannot be sustained. 3. The second objection is regarding valuation of the house. There are two houses situated in item No.4 of the plaint schedule. One is situated on the northern side and the other is situated on the southern side. The house situated on the northern side is occupied by the first defendant and : 3 : A.S.NO.425 OF 1999 that on the other side by the plaintiff. The Commissioner valued the house occupied by the first defendant at Rs.9,000/= and that of by the plaintiff at Rs.7,000/=. It can be seen that the house was valued at Rs.9,000/= because there were kurikoors in the property worth Rs.2,400/= besides the land value and there was also a cattle shed. The learned trial Judge also held that the said valuation was taken up and it has become conclusive and therefore it cannot be reopened. So the finding on the valuation of the house also does not call for any interference. 4. Thirdly the question regarding valuation of the mill and compound which is described as item No.3 in the plaint schedule. The Commissioner had valued the land at Rs.3,000/= per cent. But the learned trial judge observed that the plaintiff was prepared to take it for double the amount per cent when the legal representatives of the first defendant were not prepared to accept the same. The Commissioner had also conducted a local enquiry before assessing the value of the land. Considering the fact that the land is situated on the main side of the road, by any : 4 : A.S.NO.425 OF 1999 stretch of imagination it could not be said that the land value is on the higher side. Therefore the said finding also does not call for any interference. 5. So far as the mesne profit is concerned, it does not merit consideration in this appeal and that also is not to be disturbed. So from these discussions, I hold that the order of the trial court in passing the final decree is perfectly in order and therefore, it does not call for any interference. Therefore, the appeal fails and the same is dismissed but without costs. M.N. KRISHNAN, JUDGE. cl : 5 : A.S.NO.425 OF 1999 M.N. KRISHNAN, J. ........................................... A.S.NO.425 OF 1999 ............................................. 15th day of July, 2010. J U D G M E N T