IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH THURSDAY, THE 8TH DAY OF DECEMBER 2011/17TH AGRAHAYANA 1933 WPC.NO. 21977 OF 2010 (O) PETITIONER(S)/PETITIONER SREEDHARAN, S/O.MARASSERY NANU AGED 63 YEARS VELLITHIRUTHI DESOM CHOVANNUR VILLAGE THALAPPILLY TALUK THRISSUR DISTRICT. BY ADV.SRI.C.A.CHACKO SMT.C.M.CHARISMA SRI.N.A.SHAFEEK SRI.M.S.UNNIKRISHNAN (OASIS) RESPONDENT(S)/RESPONDENT BHASKARAN, S/O.MARASSERY NANU, VELLITHIRUTHI DESOM CHOVANNUR VILLAGE THALAPPILLY TALUK THRISSUR DISTRICT. BY ADV. SRI.P.B.KRISHNAN SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON SRI.N.AJITH SRI.P.M.NEELAKANDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08-12-2011 , ALONG WITH CRP. 1390/2000, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C) NO.21977 OF 2010 APPENDIX PETITIONER(S)' EXHIBITS: EXHIBIT P1 TRUE COPY OF THE COMPROMISE DECREE DATED 18.10.1979 IN O.S. NO.40 OF 1977 OF THE MUNSIFF COURT, WADAKKANCHERRY. EXHIBIT P2 TRUE COPY OF ORDER OF SUPREME COURT DATED 7.3.2002 IN C.A. NO.1916 OF 2002. EXHIBIT P3 TRUE COPY OF JUDGMENT OF THIS HONOURABLE COURT IN W.P(C) NO.37275 OF 2003 DATED 7.8.2007. EXHIBIT P4 TRUE COPY OF ORDER OF THIS HONOURABLE COURT IN R.P. NO.821 OF 2007 DATED 15.9.2008. EXHIBIT P5 TRUE COPY OF ORDER OF THIS HONOURABLE COURT IN I.A. NO.622 OF 2008 IN R.P. NO.821 OF 2007 DATED 17.10.2008. EXHIBIT P6 TRUE COPY OF THE REPORT AND PLAN DATED 12.11.2008 OF THE SURVEYOR. EXHIBIT P7 TRUE COPY OF THE REPORT DATED 15.11.2008 OF THE ADVOCATE COMMISSIONER. EXHIBIT P8 TRUE COPY OF THE ORDER DATED 31.1.2009 IN E.A. NO.1 OF 2003 IN R.P. NO.6 OF 1999. EXHIBIT P9 TRUE COPY OF JUDGMENT OF THIS HONOURABLE COURT IN W.P(C) NO.10331 OF 2009 DATED 25.9.2009. w.p(c) no.21977 of 2010 EXHIBIT P10 TRUE COPY OF OBJECTION DATED 5.12.2009 FILED BY PETITIONER. EXHIBIT P11 TRUE COPY OF ORDER DATED 6.1.2010 IN E.P. NO.6 OF 2010 IN O.S. NO.40 OF 1977 OF MUNSIFF COURT, WADAKKANCHERRY. EXHIBIT P12 TRUE COPY OF NOTICE IN E.P. NO.131 OF 2010 IN O.S. NO.40 OF 1977 RESPONDENT(S)' EXHIBITS: NIL TRUE COPY P.S. TO JUDGE THOMAS P.JOSEPH, J. ==================================== W.P(C) No.21977 of 2010 ==================================== Dated this the 08th day of December, 2011 J U D G M E N T Parties who are direct brothers started litigation with a small plot of land measuring 12.5 cents and a building thereon in the year, 1977 with the respondent filing O.S. No.40 of 1977 before the learned Munsiff Wadakkancherry for partition of the said property. They agreed for a settlement between them and accordingly Ext.P1, compromise decree was passed on 18.10.1979. The trouble was to start in the course of execution. As per Ext.P1, compromise decree petitioner had the first option to purchase the share of respondent for Rs.6,250/- provided he did so before 06.02.1980 and if not, option was for the respondent to purchase the share for Rs.5,250/-. Petitioner did not exercise his option within the time stipulated and filed E.P. No.6 of 1999 depositing Rs.6,250/- on 02.01.1999 praying to evict respondent from that part of the building. The executing court ordered delivery notwithstanding that petitioner had not deposited the amount before 06.02.1980 and made the deposit only on 02.01.1999. Respondent challenged the order of delivery in C.R.P. W.P(C) No.21977 of 2010 -: 2 :- No.1390 of 2000. This Court dismissed that Civil Revision. Following that, on 05.03.2001 respondent was evicted from that part of the building and property was delivered to the petitioner. Immediately thereafter, petitioner executed a settlement deed in favour of his wife who according to the petitioner availed loan and renovated the building. In the meantime, respondent challenged order in the Civil Revision in the Supreme Court. The Supreme Court by Ext.P2, judgment set aside the order in C.R.P. No.1390 of 2000 and it resulted in E.P. No.6 of 1999 being dismissed as time barred. However, the Supreme Court observed that having regard to the relationship between parties they could reach a settlement and approach the appropriate court. But no settlement could be reached between the parties. Respondent filed E.A. No.1 of 2003 in the executing court for restoration of the building to its original condition (alleging alteration of the building) and E.A. No.435 of 2004 for redelivery. E.A. No.435 of 2003 was dismissed on 03.11.2003 which respondent challenged in this Court in W.P(C) No.37275 of 2003. This Court disposed of that Writ Petition by Ext.P3, judgment. E.A. No.435 of 2003 was allowed and redelivery was ordered in favour of the respondent. 2. Next, it was the turn of petitioner. He sought review W.P(C) No.21977 of 2010 -: 3 :- of Ext.P3, judgment in R.P. No.821 of 2007. This Court in that review petition directed the executing court to appoint a senior member of the Bar to effect partition of the property (notwithstanding Ext.P1, compromise decree). Pursuant to Ext.P4, order as above stated, this Court issued Ext.P5, order fixing time limit for compliance with Ext.P4, order till 31.01.2009. Commissioner with the assistance of a Surveyor measured the property and both submitted Exts.P6 and P7. As per those reports the suit property was divided into two plots – plots A and B, with that part of the building coming in the respective plots. Plot A was allotted to the petitioner while plot B was allotted to the respondent, not to say that part of the building falling in the respective plots also went to them. But no owelty was fixed. Division made by the Advocate Commissioner and Surveyor as above was accepted by the executing court as per Ext.P8, order. 3. Respondent could not remain idle. He challenged Ext.P8, order in this Court in W.P(C) No.10331 of 2009. This Court disposed of that Writ Petition by Ext.P9, judgment directing the court below to depute the same Commissioner who prepared Ext.P6, report to show value of the building if necessary with the assistance of a Technical expert as also the improvements in the W.P(C) No.21977 of 2010 -: 4 :- property including trees situated therein and to file a report as to how partition could be effected with reference to plots A and B allotted to the petitioner and respondent respectively, taking note of the equities to be worked out and the owelty to be paid by the one to the other. This Court also directed in Ext.P9, judgment that division of plots A and B shall not be modified unless the court finds it inevitable for equitable division between the parties. This Court made it clear that parties shall not have the right to seek modification of the division of property effected as plots A and B. 4. Pursuant to Ext.P9, judgment court below appointed the same Commissioner who prepared Ext.P6, report to be assisted by an expert to assess value of the building. With the assistance of the Expert, the Advocate Commissioner valued the building and found that a sum of Rs.47,577/- is payable by petitioner to the respondent as owelty having regard to the value of that part of the building falling in plot A allotted to the petitioner. Petitioner was not satisfied with that report and filed Ext.P10, objection contending that after the property was delivered to the petitioner on 05.03.2011 pursuant to the order on E.P. No.6 of 1999 and dismissal of C.R.P. No.1390 of 2000 he W.P(C) No.21977 of 2010 -: 5 :- had settled the property in favour of wife who availed loan and renovated the building. In support of that contention a set of documents were also produced by petitioner. But the court below passed Ext.P11, order rejecting the objection and directing petitioner to pay Rs.47,577/- to the respondent as owelty on account of value of that part of the building in plot A. Exhibit P11, order is under challenge in this Writ Petition. 5. It is contended by the learned counsel that court below has not referred to the documents petitioner has produced in support of the contentions that his wife had spent large amount for renovation of the building. According to the learned counsel, petitioner is not liable to pay Rs.47,577/- as found by the Commissioner and the expert Commissioner and accepted by the court below. 6. Learned counsel for respondent contended that though wife of petitioner is said to have spent the amount for renovation of building, under law she is not entitled to get any amount, firstly as the settlement was made by petitioner pending litigation and secondly; as there could be no equity in favour of petitioner or his wife for the reason that the alleged renovations were made when the parties were vigorously fighting W.P(C) No.21977 of 2010 -: 6 :- the case. It is also contended that wife of petitioner could not be said to be a bona fide purchaser since in the normal course she should have been aware of the ongoing litigation between petitioner and the respondent. In the circumstances it is contended that the claim made by the respondent cannot be accepted. 7. I started my judgment by saying that the parties who are direct brothers are fighting the litigation from 1977 onwards over a small plot of land – 12.5 cents and building thereon. I referred to the chequered career this case had, parties taking up the matter before this Court and the Supreme Court on various occasions spending enormous amount. It is to be borne in mind that the settlement in favour of the wife was made by petitioner during the pendency of the case, no doubt at a time when the court below had passed orders in favour of petitioner. But when the Supreme Court by Ext.P2, judgment set aside order of the executing court in E.P. No.6 of 1999 as confirmed in C.R.P. No.1390 of 2000 there was an end of the claim of wife of petitioner based on the settlement since that settlement ceased to have any effect. The wife being an assignee from petitioner stands in no better position than petitioner and she is bound by W.P(C) No.21977 of 2010 -: 7 :- the result of the pending litigation. It leaves me in no doubt that the wife of petitioner is bound by Ext.P2, judgment of the Supreme Court dismissing E.P. No.6 of 1999. Nor could the wife of petitioner be described as a bona fide purchaser, effecting improvements on the building. For, she being the wife of petitioner should be normally be imputed with knowledge of the ongoing litigation. I must also take note of the fact that renovation if any made, was not with the consent of respondent. In the circumstances the wife of petitioner, not to say petitioner himself can have no legal claim on account of the alleged renovation. 8. But I am inclined to think that some modification can be made in favour of petitioner, not in recognition of any legal right or on account of bona fides of petitioner or his wife in spending money for renovation of the building. I must bear in mind that immediately after C.R.P. No.1390 of 2000 was dismissed in confirmation of the order in E.P. No.6 of 1999 allowing delivery in favour of petitioner, he settled the property in favour of his wife, certainly not with a very honest intention. However, with the faint hope that this long drawn litigation would and should come to an end by this judgment I am inclined W.P(C) No.21977 of 2010 -: 8 :- to show some leniency in favour of petitioner. After hearing learned counsel on both sides I am inclined to think that respondent can be asked to be satisfied with Rs.30,000/- as owelty. Writ Petition is disposed of by modifying Ext.P11, order to the extent that the amount payable by petitioner to the respondent as owelty is modified as Rs.30,000/- (Rupees Thirty thousand only). Petitioner shall pay the said amount within two months from this day. Parties forgot to have a peaceful life, litigating during the last several years. I am reminded of the observation made by Lawtten L.J. in Kennawey v. Thompson ([1980] 3 All England Report 329) which is thus: “The parties forgot a message: “live and let live”. It is high time now at least that parties forgot the back history of their legal battle and thought of a peaceful life in future. W.P(C) No.21977 of 2010 -: 9 :- Mathew Arnold said, in “Absence” ([1852]: “And we forget because we must and not because we will.” Let the parties forget the past not because they will, but because they must. THOMAS P. JOSEPH, JUDGE. vsv