IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR TUESDAY, THE 4TH MARCH 2008 / 14TH PHALGUNA 1929 FAO.No. 88 of 2005() -------------------- AS.27/2004 of ADDL.DISTRICT AND SESSIONS COURT, VADAKARA (AS NO.22/2000 OF SUB COURT, VADAKARA) FDIA. NO.1829/1994 IN OS.134/1992 of MUNSIFF COURT, NADAPURAM .................... APPELLANTS/RESPONDENTS 3 TO 5/PETITIONERS 3 TO 5: --------------------------- 1. PADAYANTAVIDA PARKKUM MUNDAKKANDIYIL VASUNNI KURUP, SWETHA NIVAS, BALAJI NAGAR, MALUMACHAMPATTIL, COIMBATORE, S/O. KUNHIKOMA KURUP, AGED 64 YEARS. 2. PADAYANTAVIDA PARKKUM MUNDAKKANDIYIL KUMARI AMMA, 48 YEARS, W/O. M. BALAKRISHNAN, `AKSHAYA' 43, MAHESWARI NAGAR, IIIRD STREET, THANNEER PANDAL ROAD, PEELUMEDU, COIMBATORE. 3. PADAYANTAVIDA PARAKKUM MUNDAKKANDIYIL PADAMANABHA KURUP S/O. KUNHIKOMA KURUP, AGED 60 YEARS, NOW TYPE 11/2, INCOME TAX QUARTERS, C.K. COLONY, COIMBATORE-44. BY ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY RESPONDENTS/APPELLANT & 6TH RESPONDENT/RESPONDENTS: ------------- (*) 1. P.P. NARAYANA KURUP, S/O. KUNHIKOMA KURUP, AGED 60 YEARS, PADAYANTAVIDA THAMASAM, KUNNUMMAL AMSOM, DESOM, VADAKARA TALUK, KOZHIKODE.(DIED. LRS IMPLEADED) 2. THANKAMANI AMMA, W/O. BALA KURUP, AGED 56 YEARS, PREETHI NIVAS, PALAYAD AMSOM, PATHIYARAKARA DESOM, VADAKARA TALUK, KOZHIKODE. (*)ADDL.RESPONDENTS: 3. KAMALA, W/O.LATE P.P.NARAYANA KURUP, PADAYANTAVIDA HOUSE, KUNNUMMAL AMSOM, DESOM, KAKKATTIL P.O., VADAKARA, KOZHIKODE. FAO NO.88/2005 2 4. VINOD KUMAR, S/O.LATE P.P.NARAYANA KURUP, -DO- -DO- 5. MANOJ KUMAR, -DO- -DO- 6. SHANILA, D/O. -DO- -DO- (ADDL.RESPONDENTS 3 TO 6 ARE IMPLEADED AS LEGAL REPRESENTATIVES OF DECEASED FIRST RESPONDENT VIDE ORDER DATED 5.12.2005 ON IA NO.3000/2005. BY ADV. SRI.N.L.KRISHNAMOORTHY SRI.K.LAKSHMINARAYANAN SMT.SATHYA SHREEPRIYA SRI.N.L.KRISHNAMOORTHY SRI.K.LAKSHMINARAYANAN SMT.SATHYA SHREEPRIYA THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 04/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. PADMANABHAN NAIR ,J. ------------------------------------------------- F.A.O.No.88 of 2005 ------------------------------------------------- Dated, this the 4th day of March, 2008 JUDGMENT Plaintiffs 3 to 5 who are petitioners 3 to 5 in the Final Decree Interlocutory Application No.1829/1994 in O.S.No.134/1992 on the file of Munsiffs Court, Nadapuram are the appellants. Appeal is filed against an order of remand passed by the lower appellate court by which it set aside the final decree and judgment passed by the trial court and remanded the case for passing a final decree afresh. 2. Plaintiffs filed a suit for partition alleging that the deceased first defendant who was none other than the son of deceased first plaintiff and brother of other plaintiffs was appropriating the entire income from the suit property. A preliminary decree was passed on 30.7.1994. The trial court passed a preliminary decree partitioning the suit property into seven equal shares. Five shares were allotted to plaintiffs 1 to 5 and two shares to first defendant. First defendant was directed to pay mense profits to the plaintiffs from the date of suit till such date when the quantum of which was decided as per final decree. It was observed that all the parties were at liberty to apply for passing a final decree. There is a house in the suit property. First defendant claimed that he was residing in the house and as such the same shall be allotted to him. Issue No.2 was regarding the equities claimed by him. It is an admitted fact that first defendant was residing in the house. First defendant was examined as DW1. Trial court found that while FAO No.88/2005 2 examining before the court DW1 had conceded that he had no objection in the house being allotted to the plaintiffs. He had also admitted that none of the plaintiffs have any other house in the place where suit property is situated. Subsequently plaintiffs filed F.D.I.A.No.1829/1994 for passing a final decree. The first defendant again raised a contention that the house shall be allotted to his share. He also took up a contention that second plaintiff died and other plaintiffs are permanently settled at Coimbatore and all of them are residing in their own houses there. Trial court took a view that the first defendant is not entitled to get the house allotted to his share. So it accepted the plan and report submitted by the commissioner allotting the building to the share of plaintiffs. Challenging that decree and judgment first defendant filed A.S.No.27/2004. Initially appeal was dismissed as per judgment dated 30.4.2004. Appellant filed I.A.No.82/2004 for review of the judgment. That petition was allowed. Judgment was reviewed and the appeal was heard again. Lower Appellate Court set aside the judgment and decree passed by the trial court and remanded the matter for fresh consideration. Lower appellate court directed the trial court to depute an advocate commissioner to divide the properties afresh in accordance with the changed share structure and as regards the allotment of the house alternate share list can be called for and a just decision can be taken by the trial court. Challenging that order of remand plaintiffs 3 to 5 have filed this appeal. 3. The main contention raised in this appeal is regarding the judgment FAO No.88/2005 3 and decree passed by the lower appellate court by which it set aside allotment of the house. First plaintiff was the mother of plaintiffs 2 to 5 as well as deceased first defendant. She died during the pendency of the appeal. So the division of estate of the first plaintiff is to be decided and there will be a necessity of re- allotment of the shares. Hence the remand order as such cannot be set aside. 4. Now I shall consider the grievance of appellants regarding allotment of house. Deceased first defendant was examined as DW1 before passing the preliminary decree. He had admitted that his mother was residing at Coimbatore. During cross-examination he had admitted that apart from the building in the suit property plaintiffs are having no house in Kerala State. He had also admitted that he has no objection in allotting the building to the female plaintiffs. He deposed that - The trial court at the preliminary decree stage considered the admission made by the deceased first defendant and found that he is not entitled to claim any equity or reservation in respect of the building. Of course there was no direction to allot the building to the plaintiffs' share. But the fact remains, the plaintiffs are the major sharers. The deceased first defendant was claiming only two shares. In the final decree proceedings the first defendant again raised a contention that the building should be allotted to his share as he had no other house and his financial FAO No.88/2005 4 capacity does not permit him to construct a house. First defendant was examined in final decree proceedings also. He had admitted that when he was examined at the preliminary stage he had conceded that he has no objection in allotting the building to the female plaintiff ( ). He had also admitted that he had not filed any petition to delete that portion from his deposition. Question arising for consideration is whether a person who had conceded that he had no objection to allot a building to another party to suit can be allowed to turned round and take up a different contention. 5. Learned counsel for the deceased first defendant has argued that the only admission made by the deceased first defendant was that he had no objection in allotting the house to the first plaintiff/mother. First plaintiff was his mother and plaintiffs 2 and 4 were his sisters. Second plaintiff died before passing final decree. It is true that in the Final Decree application the appellants had also admitted that the effect of the admission made by DW1 was to the effect that he had no objection in allotting the house to first plaintiff mother. But in the preliminary decree it was found that the first defendant was not entitled to any special reservation regarding the building. During the final decree stage first defendant had admitted that his mother was residing in the very same building and she had no other building. He had also admitted that because of the difference of opinion between his mother and wife, mother had left the house and she was residing at Coimbatore. He had further deposed that if mother wants she can FAO No.88/2005 5 come and stay with him. . The first plaintiff was alive when such an admission was made. The allottment was delayed only because of the pendency of the appeal. The first plaintiff died during the pendency of the appeal. The fact remains that deceased first defendant made a concession. Trial court shall look into these aspects and pass a final decree afresh. With this observations, F.A.O. is disposed of. I.A.Nos.1502/2005 and 2999/2005 in F.A.O.No.88/2005 will stand dismissed. K. PADMANABHAN NAIR, JUDGE. cks