IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 2ND AUGUST 2011 / 11TH SRAVANA 1933 RSA.No. 917 of 2003() -------------------------- AS.108/1987 of DISTRICT COURT, MANJERI OS.82/1978 of MUNSIFF COURT,PERINTHALMANNA ................................ APPELLANT(S): RESPONDENTS 6, 12 &15 IN LOWER APPELLATE COURT-DEFENDANTS 6, 12 AND 15 IN THE SUIT ------------------------------------------------------------------------------------------ 1. KUNHAYISHUMMA, D/O. KARUMAMKUZHIYIL BAPPU @ MOHAMMED, RESIDING AT VALAMPUR AMSOM DESOM, PERINTHALMANNA TALUK. 2. PATHUMMAKUTTY UMMA, W/O KARUMAMKUZHIYIL MOHAMMED @ BAPPU, RESIDING IN DO - DO - 3. PATHUMMA, W/O KAVUNGATHODI KUNHIPPU MASTER, RESIDING IN DO - DO - BY ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.K.JAYAKUMAR RESPONDENT NO.1: APPELLANT IN LOWER APPELLATE COURT-PLAINTIFF IN SUIT. --------------------------------------------------------------------------------- 1. KARUMAMKUZHIYIL MOHAMMED @,BAPPU'S SON ABDUL AZEEZ, RESIDING AT KAKKOOTH AMSOM AND DESOM, PERINTHALMANNA TALUK. RESPONDENT NOS.2 TO 4 : RESPONDENTS 2 TO 4 IN LOWER APPELLATE COURT – DEFENDANTS 2 TO 4 IN THE SUIT. --------------------------------------------------------------------------------------- 2. PATHUTTY UMMA, RESIDING AT KAKKOOTH AMSOM AND DESOM, PERINTHALMANNA TALUK. 3. ALEEMA UMMA, RESIDING AT VALAMBUR AMSOM AND DESOM, PERINTHALMANNA TALUK. 4. SAINABA UMMA, RESIDING AT ANGADIPPURAM AMSOM AND DESOM, PERINTHALMANNA TALUK. RSA.No. 917 of 2003() - 2 - RESPONDENTS 5 & 6 : RESPONDENTS 9 & 10 IN LOWER APPELLATE COURT – DEFENDANTS 9 & 10 IN THE SUIT --------------------------------------------------------------------------------------------------- 5. CHETTIYAMTHODI KUNHALAVI'S SON KUNHIMOHAMMED, RESIDING AT PATHAIKKARA AMSOM AND DESOM, PERINTHALMANNA TALUK. 6. CHETTIYAMTHODI KUNHALAVI'S SON ABDUL AZEEZ, RESIDING AT PATHAIKKARA AMSOM AND DESOM, PERINTHALMANNA TALUK. RESPONDENTS NO.7 : RESPONDENT NO.13 IN LOWER APPELLATE COURT – DEFENDANT 13 IN THE SUIT --------------------------------------------------------------------------------------------------- 7. PATHATH SAIDALI'S DAUGHTER NABEESA UMMA, RESIDING AT ANGADIPPURAM AMSOM AND DESOM, PERINTHALMANNA TALUK. RESPONDENTS 8TO 11 : RESPONDENTS 17 TO 20 IN LOWER APPELLATE COURT – DEFENDANTS 17 TO 20 IN THE SUIT --------------------------------------------------------------------------------------------------- 8. KANNAMTHODI ABDULLA'S SON AHAMED, RESIDING AT VALAMBUR AMSOM AND DESOM, PERINTHALMANNA TALUK. 9. HAMZA, S/O KARAYIL MUNHAMMI, RESIDING AT KAKKOOTH AMSOM AND DESOM, PERINTHALMANNA TALUK 10. SARA UMMA, D/O KARAYIL HAMZA RESIDING AT RESIDING AT KAKKOOTH AMSOM AND DESOM, PERINTHALMANNA TALUK. 11. MOHAMMEDALI, S/O KUNNAMTHODI ABDULLA, RESIDING AT VALAMBUR AMSOM AND DESOM, PERINTHALMANNA TALUK. RESPONDENTS 12 TO 14 : RESPONDENTS 22, 23 & 25 IN LOWER APPELLATE COURT – LEGAL REPRESENTATIVES OF DECEASED DEFENDANT NO.11 IN SUIT -------------------------------------------------------------------------------------------------------------- 12. ABDUL AZEEZ, S/O.LATE KUNHIPPU MASTER, KAVUNGATHODI, P.O. VALAMPUR, PATTIKKAD, PERINTHLMANNA TALUK. * [(DIED, RECORDED) IT IS RECORDED THAT RESPONDENT NO.12 IS NO MOR AND LRGAL REPRESENTATIVES OF R12 NEED NEED NOT BE IMPLEADED AS PER THE ORDER DATED 26.3.2009 VIDE MEMO CF.1812/2009] RSA.No. 917 of 2003() -3 - 13. FATHIMA, D/O. -DO- DO- 14. ABDUL RAHIMAN, S/O LATE KUNHIPPU MASTER, KAVUNGATHODI, P.O. VALAMBUR, PERINTHALMANNA TALUK, (VIA) PATTIKKAD. [RESPONDENT NO.21 IN THE LOWER APPELLATE COURT SHOWN AS “PATHU, W/O LATE KUNHIPPU MASTER, KAVUNATHODI” IS THE SAME PERSON IMPLEADED IN THE SUIT AS DEFENDANT NO.15, WHO IS APPELLANT NO.3 HEREIN, SINCE NAME OF RESPONDENT NO.21 IS A REPETITION WRONGLY MADE, SHE IS NO AGAIN SHOWN AS A PARTY.] [RESPONDENT NO.24 IN THE LOWER APPELLATE COURT, MYMOONA, IS ALSO ONE OF THE LEGAL REPRESENTATIVES OF DECEASED DEFENDANT NO.11. SHE DIED PENDING THE APPEAL BEFORE THE LOWER APPELLATE COURT. HER LEGAL REPRESENTATIVES WERE NOT IMPLEADED IN THE LOWER APPELLATE COURT BY RESPONDENT NO.1 HEREIN, THE APPELLANT BEFORE THAT COURT. HER LEGAL REPRESENTATIVES ARE NOT BEING IMPLEADED IN THIS REGULAR SECOND APPEAL ALSO, BECAUSE, THE TITLE TO THE PROPERTY REALLY IS HELD BY DEFENDANT NO.15 (APPELLANT NO.3 HEREIN) WHO IS THE WIFE OF DECEASED DEFENDANT NO.11 AND NOT BY DEFENDANT NO.11 AS WRONGLY THOUGHT ORIGINALLY BY THE PLAINTIFF - RESPONDENT NO.1 HEREIN] RESPONDENTS 15 TO19 : RESPONDENTS 26 TO 30 IN LOWER APPELLATE COURT – LEGAL REPRESENTATIVES OF DEFENDANT NO.14 IN THE SUIT. ------------------------------------------------------------------------------------------------------ 15. SAINABA, W/O LATE SAIDALIPPU, RESIDING AT ANGADIPPURAM AMSOM AND DESOM, PERINTHALMANNA TALUK. 16. NABEESA, D/O. -DO- - DO - 17. SARA UMMA, D/O - DO - - DO - 18. ABIDA, D/O. - DO - - DO - 19. BALKEES, D/O. - DO - - DO - RESPONDENTS 20 TO 24: RESPONDENTS 31 TO 35 IN LOWER APPELLATE COURT – LEGAL REPRESENTATIVES OF DEFENDANT16 IN THE SUIT --------------------------------------------------------------------------------------------------- 20. M. KADEEJA, D/O LATE K.A. ABDULLA, RESIDING AT KUNNATHODI HOUSE, P.O. VALAMBUR, VIA. PATTIKKAD, PERINTHALMANNA. 21. K.A. ASIYA, D/O DO. & WIFE OF THAYYIL MOHAMMED, THARAYIL HOUSE, KOOTTILANGADI, PARADI, MALAPPURAM DISTRICT. RSA.No. 917 of 2003() - 4 - 22. K.A.SAINABHA, D/O. -DO- KUNNATHODI HOUSE, P.O. VALAMBUR, VIA PATTIKKAD, PERINTHALMANNA TALUK. 23. K.A. SAINABHAD/O. -DO- & W/O. K. HUSSAIN, KALLANAKUNNAN HOUSE, P.O PUZHAKKATTIRI, ANGADIPPURAM, MALAPPURAM DISTRICT. 24. K.A. FATHIMA, D/O. -DO- & W/O. K.P.ABDU, KONDANPURAYAN HOUSE, P.O, KUNNAPPALLI, PERINTHALMANNA. RESPONDENTS 25 & 31 : RESPONDENTS 36 TO 42 IN LOWER APPELLATE COURT – LEGAL REPRESENTATIVES OF DEFENDANT 8 IN THE SUIT --------------------------------------------------------------------------------------------------- 25. BASHEER,S/O. C.B. MOHAMMEDKUTTY, PB 7516, JEDDAH, KINGDOM OF SAUDI ARABIA. 26. SHOUKATH, S/O C.B. MOHAMMEDKUTTY, RESIDING C/O.BASHEERPB 7516, JEDDAH, KINGDOM OF SAUDI ARABIA. 27. NABEESA, W/O.LATE C.B. MOHAMMEDKUTTY, RESIDING AT KAKKOOTH AMSOM DESOM, PERINTHALMANNA TALUK. 28. SULAIKHA, D/O. -DO-. IN - DO- 29. BEEKUTTY, D/O. -DO- -DO- 30. SALEEM C.P., S/O. -DO- -DO- 31. LAILA, D/O. -DO- IN -DO- [RESPONDENT NO.1 IN THE LOWER APPELLATE COURT, KUNHI PATHUMA, DIED AFTER THE DECREE OF THE LOWER APPELLATE COURT. HER ASSIGNEE IS DEFENDANT NO.15 IN THE SUIT, WHO IS APPELLANT NO.3 IN THIS R.S.A.] ADV. SRI.T.SETHUMADHAVAN FOR R1 SRI.P.M.NEELAKANDAN FOR 2,6,8,25,28 TO 30 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02/08/2011, ALONG WITH RSA NO. 698 OF 2003 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sou. K. HEMA, J -------------------------------------------------- R.S.A.No.917 OF 2003 and R.S.A.No.698 OF 2003 --------------------------------------------------- Dated this the 2nd day of August, 2011 J U D G M E N T A suit was filed before the Munsiff Court for partition of plaint B and C schedule properties with future profits from 6.11.1978 at the rate of Rs.129/- per annum with interest and cost. Plaint B schedule property is having an extent of 1.48 Acres of immovable property which originally belonged to one Mohammed Molla. Plaint C schedule property is movable property such as sewing machine, scissors etc. Plaintiff claimed 4/24 share in plaint B and C schedule properties. 2. The suit was dismissed by Munsiff Court as per judgment dated 30.6.1987. An appeal was filed before District Court and and as per judgment dated 8.9.1989 appellate court decreed the suit and plaintiff was allotted 4/24 shares in the plaint schedule properties to the plaintiff. A preliminary decree for partition was passed in terms of the decree and appeal was allowed by the District Court. 3. The said appeal was challenged before this court in RSA. No.917 & 698/03 2 S.A.375 of 1990 and S.A.420 of 1990 by different defendants. This court by a common judgment allowed those appeals. The Judgment and decree of lower appellate court were set aside and appeal was remanded to appellate court for fresh calculation of shares due to plaintiff. This court found that there was some mistake in the calculation of shares and hence it was necessary to recalculate the shares by lower appellate court after hearing. 4. The appeal, A.S.108/1987 filed by plaintiff was again heard on the calculation of shares. On demand, the following points arise for consideration: “1. Whether the defendants 13 and 14 are entitled to share in the schedule property? 2. What is the share to which plaintiff is entitled ?” 5. The calculation statement was filed by plaintiff after the remand. Learned Sessions Judge found nothing was brought out by contesting defendants to discard the calculation statement in respect of shares which can be allotted to each of the parties. Lower appellate court found that plaintiff is entitled to get 1212/4608 shares in plaint B schedule property and a preliminary decree was passed accordingly. It was also held that plaintiff is entitled to share profits/damages from plaint B schedule RSA. No.917 & 698/03 3 properties to the extent of his shares, from the date of suit till he gets separate possession of his share, the quantum of which will be decreed in the final decree proceedings. It was also held that defendants 13 and 14 are also entitled to share in the plaint B schedule properties. Lower appellate court also directed that while effecting the division to the extent possible, the property in the possession of respective shares and their assignees be allotted to them without valuing the improvements effected by them in the said properties. 6. Aggrieved by the decree and judgment, second appeal is filed by different defendants. The main grievance is that the share allotted to plaintiff is not correct. The appellate court has not considered as to what is the exact share which plaintiff will be entitled to, but it has accepted the calculation statement submitted by the plaintiff before the appellate court. It was pointed out that the said calculation statement is not correct. 7. Heard both sides. Perused records. The only substantial question of law involved in this case is whether a second appellate court can interfere in the decree passed in a suit for partition if the decree is vitiated by calculation error committed by parties in respect of their shares in the property. On hearing RSA. No.917 & 698/03 4 both sides and on perusal of the calculation statement I am satisfied that in the share calculation statement date 21.1.2003 filed before lower appellate court also, there is a mistake in the calculation statement with respect tot he share, each plaintiff is entitled to. Learned counsel appearing for plaintiff–respondent also fairly conceded that there is such mistakes. 8. Lower appellate court proceeded on the basis of calculation statement only because no objection was filed by the parties against the said calculation statement. It was not proper to proceed on the basis of calculation statement, even if it is not opposed, especially while allotting share in immovable properties. It is the duty of the court to find out what share plaintiff is entitled to. On an analysis of evidence on record, lower appellate court committed a serious error in failing to do so and this appeal is an off-shoot of such error. 9. Both sides submitted that as per calculation statement, plaintiff is stated to be entitled to 336/4608 shares as residuary of two direct sisters, defendant no.5 and Kunhayishumma. In fact, while preparing calculation statement the fact that defendant no.5 had assigned her share or fractional interest which she had, in favour of a stranger under Ext.B14 in the year 1971. The RSA. No.917 & 698/03 5 stranger assigned the said right to defendant no.20 under Ext.B17 in 1985. Therefore, no share of defendant no.5 will go to plaintiff. 10. It is also pointed out that as per calculation statement, plaintiff is shown entitled to share of defendant no.7. But he will not be entitled to share of defendant no.7 since she along with defendant no.4 and defendant no.13 assigned their undivided share to a stranger defendant no.8 under Ext.B1 in the year 1978. On hearing both sides, I am fully satisfied of the submission made and there is a clear mistake in the calculation statement dated 31.1.2003 in respect of the share to which plaintiff is entitled. 11. It is also pointed out that plaintiff would be entitled to some fractional share of Kunhayishumma. He will not be entitled to get full share. It is pointed out that defendant no.14, who is the husband of Kunhaiyshumma had assigned his right as per Ext.B3 to defendant no.8 who is a stranger as early as in 1979. On a detailed hearing of both sides in respect of what would be the share which plaintiff would be entitled to and also the defendants, I am satisfied that shares which the parties are entitled to would be as detailed in page 7 to 10 in the statement dated 21.6.2011 filed by counsel for appellants. Learned counsel for plaintiff also conceded to this fact. RSA. No.917 & 698/03 6 12. Admittedly, Muhammed Molla to whom plaint B schedule property belongs to originally and his descendants are Sunni Muslims and on the death of original owner, Mammi Molla, his share in the available property devolved as follows: (a) On the death of original owner, Mammi Molla (in 1954), his share in the available property devolved as follows : Defendant no.7( widow) -1/8 Balance of 78 will be taken by daughters and son, son taking double the share of a daughter as residuaries. There were 6 daughters and one son. Therefore 7/8 will have to be divided into 8 shares, and daughters will take one such share each, and the son will take two shares. So calculated, the shares will be: Defendant no.7 (widow) - 1/8 same as 8/64 Bappu @ Muhammed (son) - 14/64 Kunhayishumma & defendant no.1 to 5(daughters)- 7/64 each. (b) Kunhayishumma died thereafter(in 1958) and her 7/64 share will devolve as follows: 1/2 of 7/64 to daughter (defendant no.13) as sharer. 1/4 of 7/64 to husband (defendant no.14) as sharer. 1/6 of 7/64 to mother (defendant no.7) as sharer. RSA. No.917 & 698/03 7 Balance will be inherited by brother and each of the sisters as residuaries in the ratio 2:1 So Defendant no.13 will be entitled to : 7/128 same as 84/1536 (when multiplied by the common denominator : 24) Defendant no.14 will be entitled to : 42/1536 Defendant no.7 will be entitled to : 28/1536 Brother and sisters will be entitled to a total of : 14/1536 shares. Bappu @ Muhammed : 4/1536 Defendant nos.1 to 5 each of them : 2/1536 Total share of Defendant no.7 = 28/1536 + 8/64 (192/1536) = 220/1536 Bappu @ Muhammed = 4/1536 + 14/64 (336/1536) = 340/1536 Defendant nos.1 to 5 each of them = 2/1536 + 7/64 (168/1536) = 170/1536 Defendant no.13 = 84/1536 Defendant no.14 = 42/1536 (c) Bappu @ Muhammemd died next (in 1965). His 340/1536 will devolve as follows: Mother (Defendant no.7) will get 1/6 as sharer. Widow (Defendant no.12) will get 1/8 as sharer. RSA. No.917 & 698/03 8 (No share to mother of plaintiff since she had been divorced by Bappu @ Muhammed). Balance will be inherited by son(plaintiff) and daughter (Defendant no.6) in the ratio 2:1, ie., 2/3 : 1/3. So Defendant no.7 will get 1/6 of 340/1536, ie., 24/144 of 340/1536. Defendant no.12 will be entitled to 1/8 of 340/1536 ie, 18/144 of 340/1536. Plaintiff will be entitled to 68/144 of 340/1536 And Defendant no.6 will be entitled to 34/144 of 340/1536. The share which the parties will be entitled to in the entire property is as follows: Defendant nos.1 to 5 each of them are entitled to 170/1536 :[see para (b)] same as 11,75,040/1,06,16,832 = 11.0677% (multiplied by 6912) --------------- Total = 55.3385% ====== Defendant no.6 : 34/144 share out of 340/1536 :[see paragraph(c)] same as 5,54,880/1,06,16,832 = 5.2264% ===== Defendant no.7 : 220/1536 + 24/144 of 340/1536) ie. 276.6666/1536 [see para 18(a) and (c)] ie. 19,12,400/1,06,16,832 = 18.0121% ====== RSA. No.917 & 698/03 9 Defendant no.12 : 18/144 of 340/1536 : [see para (c)] same as 2,93,760/1,06,16832 = 2.7669% ===== Plaintiff will be entitled to 68/144 out of 340/1536: [see para (c)] same as 11,09,760/1,06,16,832 = 10.4528% ===== Defendant no.13 : 84/1536 [see para (b)] same as 5,80,608/1,06,16,832 = 5.4687% ===== Defendant no.14 : 42/1536 [see para (b)] same as 2,90,304/1,06,16,832 = 2.7343% ------------ Total = 99.9997% ====== 13. In the above circumstances, though the plaintiff has claimed 4/24 share in the plaint schedule B property, he ill not be entitled to so much of the share. On the facts and circumstances of this case, share can be stated in percentage. Plaintiff will be entitled to 10.4528%, defendant nos.1 to 5 each will be entitled to 11.0677% each, defendant no.6 is entitled to 5.2264%, defendant no.7 is entitled to 18.0121%, defendant no.12 will be entitled to RSA. No.917 & 698/03 10 2.7669%. defendant no.13 is entitled to 5.4687%, defendant no.14 is entitled to 2.7343% in the plaint B schedule property. 14. The 8th defendant purchased the rights of defendant nos.4, 7, 13 and 14 and hence, he will be entitled to whatever share they were entitled to. Defendant nos.1 and 3 assigned their right to defendant no. 15 and hence he is entitled to 11.0677 x 2 = 22.1354%. Defendant 2 and 5 assigned their right to defendant no.20 and he is also entitled to same percentage of share, namely, 22.1354%. (Defendant nos.8, 15 and 20 are strangers.) 15. As per written statement of defendant no.20, defendants 16 and 17 purchased some shares in the property from defendants 9 and 10 and ultimately their shares have gone to defendant no.20. Defendants 18 and 19 are legal heirs of defendant no.5 and she had sold the property to a stranger as early as in 1971 under Ext.B14 and ultimately the property is assigned in 1985 under Ext.B17 to defendant no.20. 16. Both sides submitted that the contesting defendants and plaintiff are in possession of certain items of property. Learned counsel for appellants submitted that the whole extent of property stated under plaint B schedule property is not available RSA. No.917 & 698/03 11 for partition now and only a lesser extent is at present available. This fact is disputed by learned counsel for plaintiff – respondent. However, I find in the interest of justice to mention that shares to be allotted to respective parties, which is decided in this appeal will be in respect of the property which is actually available on measurement when shares are allotted as far as possible. 17. It is also to be noted that though plaintiff had sought partition of plaint C schedule property also, lower appellate court has failed to consider the said relief. Plaintiff had not filed any appeal and hence no interference can be made in respect of plaint C schedule property. Therefore, the preliminary decree passed by the court below in respect of the shares of different parties in plaint B schedule property is modified as follows : 1. The plaintiff will be entitled to a share of 10.4528%. 2. The defendant nos.1 to 5 each is entitled to a share of 11.0677%. 3.Defendant no.6 is is entitled to a share of 5.2264%. 4. Defendant no.7 is entitled to a share of 18.0121%. 5.Defendant no.12 is entitled to a share of 2.7669%. 6. Defendant no.13 is entitled to a share of 5.4687%. RSA. No.917 & 698/03 12 7. Defendant no.14 is entitled to a share of 2.7343%. 8. While dividing and allotting the respective shares of the parties, the properties in the possession of parties will be retained with them, to the extent possible. These appeals are allowed. Sd/- K. HEMA, JUDGE. Sou. // True copy //