IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931 RSA.No. 1030 of 2008() ---------------------- AS.68/2002 of SUB COURT, KASARAGOD OS.438/1998 of ADDL.MUNSIFF, KASARAGOD .................... APPELLANT/3RD RESPONDENT/3RD DEFENDANT ------------------------------------------------------------------- UBAID, S/O. LATE.T.K. MOIDEENKUMHI, THEKKEKARA HOUSE, CHERIP9PADIKAVU, UDMA VILAGE, HOSDURG TALUK, P.O. UDMA, EMPLOYED IN ABU DHABI, P.B NO. 44132, ABU DHABI, U.A.E. BY ADV. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON SMT.V.DEEPA SRI.N.AJITH RESPONDENTS/APPELLANT & RESPONDENTS 2 & 4 TO 7 /PLAINTIFF & DEFENDANTS 4 TO 7 ---------------------------------------------------------------------------------------------------- 1. P.M. ABIDA, D/O. LATE T.K. MOIDEENKUNHI AND W/O. YOUSUF, RESIDING AT KUNDOLAMPARA, UDMA VILLAGE, HOSDURG TALUK, P.O. UDMA. 2. ISMAIL, S/O.DO, RESIDING AT THEKKEKARA HOUSE, CHERIPPADIKAVU, UDMA VILLAGE, HOSDURG TALUK, P.O. UDMA. 3. HANEEFA, S/O. -DO- 4. SIDDIQUE, S/O. -DO- 5. P.K. KUMARAN, S/O. KANNAN, RESIDING AT KIZHAKKE VALAPPU, UDMA VILLAGE, HOSDURG TALUK, P.O. UDMA. 6. PARVATHI MOHANAN, W/O. MOHANAN, RESIDING AT PATTATHANAM, MALANKUNNU, BEKAL, HOSDURG TALUK, P.O. BEKAL, KASARAGOD-671 318 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A. NO. 2312/2008 IN R.S.A. NO. 1030 OF 2008 DISMISSED SD/- HARUN-UL-RASHID, JUDGE 24.6.009 HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 1030 of 2008 ---------------------------------------- Dated this the 24th day of June, 2009 JUDGMENT The Second Appeal is directed against the judgment and decree in A.S. No. 68 of 2002 and Cross Objection, on the file of the Sub Court, Kasaragod which arises from the judgment and decree in O.S.No. 438 of 1998 on the file of the Munsiff's Court, Kasaragode. The suit filed for partition was decreed by the trial court. The preliminary decree was modified by the lower appellate court in appeal. Hence this Second appeal. The 3rd defendant in the suit is the appellant herein. The parties hereinafter referred to as plaintiff and defendants as arrayed in the suit. 2. The plaint A schedule property originally belonged to late T.K.Moideenkunhi the husband of the 1st defendant and father of the plaintiff and defendants 2 to 5. It is the case of the plaintiff , being the legal heirs of the said Moideenkunhi , the deceased's right in the plaint A schedule property is devolved upon herself and defendants The plaintiff claimed 7/72 share. Subsequently the plaintiff was informed that the plaint A schedule property is partitioned as per a partition deed and she was allotted share in the said partition. According to the plaintiff the prime property was allotted to the 3rd defendant as per the alleged partition deed and that she was not informed about the partition by the defendants and R.S.A. No. 1030 of 2008 -2- therefore she is entitled to get a decree for partition and allotment of her 7/72 share in the suit property and that the 3rd defendant had also constructed a house in item No.6 of the property which is detrimental to the interest of the plaintiff 3. The defendants 1 and 2 contended that the suit property was partitioned as per a registered partition deed and the plaintiff was present at the time of the partition and the share of property allotted to her as per the partition was taken possession by the plaintiff and she is cultivating therein. 4. Defendants 1 and 3 contended that the 2nd defendant has sold his right in favour of supplemental 6th defendant and the 6th defendant has sold the same in favour of the 7th defendant, that the 3rd defendant constructed a residential house in item No.6 property and that he is entitled to get the house allotted in his name on equity. Another plea set up by the defendants 1 and 3 is that the plaintiff was aware of the partition and she took possession of her share allotted to her as per the partition deed. It is also contended by them that there is road access to the plot allotted to the plaintiff which of course is denied by PW1. Since the defendants 1 and 3 has set up a case to the effect that the partition was effected as a family settlement for the welfare of the legal heirs of late T.K. Moideenkunhi and that the partition deed is a true and genuine document , the burden is on the defendants 1 and 3 to establish that they R.S.A. No. 1030 of 2008 -3- entered into the partition for the benefit of the legal heirs of late T.K.Moideenkunhi and that the partition was made in an most equitable manner allotting equal shares to each sharers in the suit property. The trial court also found that PW1 has not signed the alleged partition deed, that the intention of the defendants 1 to 5 in effecting partition of the suit property was for their beneficial enjoyment and interest and the said partition deed is not binding on the plaintiff. 5. According to PW1 she made enquiries with respect to the alleged partition and came to know that a plot has been allotted to her which is away from the road and the most convenient and prime property was allotted to 3rd defendant The trial court noted the fact that the plaintiff did not give any consent to the construction of the house in item No. 6 property by the 3rd defendant that since the defendants 1 and 3 have not succeeded in establishing the claim as contended by them the plaintiff is entitled to get a decree as prayed for . The trial court also held that as the construction of the said house was not by the plaintiff, the 3rd defendant is entitled to get the said house on equity. 6. On the plaintiff's side PW1 was examined and Exts A1 to A5 were marked. On the defendants' side Exts. B1 to B16 were marked and DW1 was examined. 7. After evaluating the oral and documentary evidence adduced R.S.A. No. 1030 of 2008 -4- by the parties, and the facts and circumstances of the case the trial court passed a preliminary decree as follows: i.The plaint A schedule property shall be divided into 72 equal shares by metes and bounds and the plaintiff is allotted with 7/72 share in the suit property. ii. The costs of the suit shall come out of the estate. iii.The plaintiff is entitled to get share of profit and the quantum of which will be decided in the final decree. iv The 3rd defendant is entitled to get the house on equity. v. The plaintiff is at liberty to file petition to pass a Final decree. vi.The suit is adjourned sine die. 8. In the appeal filed by the plaintiff the lower appellate court modified the preliminary decree for partition . The lower appellate court after referring to the principles laid down in Santhoshkumar Vs.Baby 2007 (2) KLT 728 held that the 3rd respondent cannot claim any equity as of right.. The lower appellate court also held that only if the house can be allotted to his share without defeating the right of other sharers including the plaintiff that claim can be considered at the time of final decree. The lower appellate court dismissed the appeal, and the cross objection filed R.S.A. No. 1030 of 2008 -5- by the supplemental 7th defendant and modified the preliminary decree of the trial court as follows: a. The plaint A schedule property shall be divided into 72 equal shares by metes and bounds and the plaintiff will be allotted with 8 such shares. b. The plaintiff is entitled to get share of profit from the respondents and the quantum will be decided in the final decree. c. Division of property in such a way as to allot the house in the share of 3rd respondent will be considered at the time of final decree d. The plaintiff is at liberty to file petition for final decree e. Cost of the suit shall come out of the estate. . 9. The Second Appeal was filed by the 3rd defendant aggrieved by the modification by the lower appellate court regarding the allotment of house which was constructed by him utilising his own funds, in item No,.6 of the plaint schedule property. 10. The learned counsel for the appellants contended that the lower appellate court has erred in judging to the effect that the equity cannot be carved out in the preliminary decree stage and in holding that the house to be allotted to the 3rd defendant's share without defeating the right of other sharers. R.S.A. No. 1030 of 2008 -6- 11. The 3rd defendant's case is that in the event of partition of item No. 6 and the house situated therein may be allotted to his share based on the principle of equity. It is not disputed that the house was constructed by the 3rd defendant by spending his own funds. The lower appellate court rightly observed that the question of dividing the property and the possibility of dividing in such a way that the house will fall to the share to be allotted to the 3rd defendant can be considered only at the time of Commissioner's inspection . According to the learned Sub judge, ordering allotment of house in equity will definitely create complications at the time of final decree , that the possibility of allotting such share touching the road to the 3rd respondent and allotment of money equalisation of share for others can also be considered only on measurement of the property by the Commissioner. Finally the lower appellate court passed a decree as stated above. In my view the view taken by the learned appellate judge is correct . The trial court in fact went wrong in allotting the house at the preliminary decree stage. The allotment of house to the 3rd defendant who is the owner, if possible , can be done only in the final decree proceedings after division and demarcation by the Commissioner. Therefore the modification made by the lower appellate court regarding the allotment of house to be included in the share of the 3rd defendant or not is to be considered at the final decree stage cannot be said to be wrong in any respect. The contentions of the 3rd defendant/appellant in this regard cannot be R.S.A. No. 1030 of 2008 -7- countenanced . No other views other than the view taken by the lower appellate court is possible in the Second Appeal . There is no scope for invoking Section 100 of the C.P.C. No questions of law much less any substantial question of law arises for consideration in this Second Appeal . This Second Appeal fails and accordingly dismissed. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A.No. 1030 of 2008 ---------------------------- JUDGMENT 24th June, 2009