IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 14TH DECEMBER 2009 / 23RD AGRAHAYANA 1931 RSA.No. 456 of 2006() --------------------- AS.10/2002 of SUB COURT, HOSDURG OS.45/1999 of MUNSIFF COURT, HOSDURG .................... APPELLANTS/APPELLANTS/DEFENDANTS NO.7 & 15. --------------------------------------------------------------- 1. KODOTH KARUNAKARAN NAIR, AGED 82 YEARS, S/O.CHIRUDAI AMMA & KOOKAL PUTHIYAVEETTIL CHINDAN NAIR, HINDU, LAND HOLDER, RESIDING AT PANAYAL, IN PANAYAL VILLAGE, HOSDURG TALUK, P.O.PANAYAL. 2. LATHAKUTTY JAGANNATH, AGED 40 YEARS, W/O.JAGANNATH, RESIDING AT PANAYAL, IN PANAYAL VILLAGE, HOSDURG TALUK, P.O.PANAYAL. BY ADV. SRI.SURESH KUMAR KODOTH RESPONDENT(S): RESPONDENT & CROSS OBJECTOR/PLAINTIFF & DEFENDANTS 1 TO 6 AND 8 TO 14 -------------------------------- 1. EDAYILLAM MADHUSOODHANAN NAIR, AGED 43 YEARS, S/O.KODOTH KUNHIRAMAN NAIR, HINDU, AGRICULTURIST, RESIDING AT PALAKKAD HOUSE, KARIVEDAKAM VILLAGE, KASARGOD TALUK P.O. KARIVEDUKAM. 2. KODOTH CHINDAN NAIR, AGED 85 YEARS, S/O.CHIRUDAI AMMA & KOOKAL PUTHIYAVEETTIL CHINDAN NAIR, HINDU, LAND HOLDER, RESIDING AT PANATHUR IN PANATHADY VILLAGE, HOSDURG TALUK, P.O.PANATHUR. 3. KODOTH KUNHIKRISHNAN NAIR, AGED 75 YEARS S/O.CHIRUDAI AMMA & KOOKAL PUTHIYAVEETTIL CHINDAN NAIR, HINDU, LAND HOLDER, RESIDING AT KUNHIPITHIYA VEEDU, KODOTH VILLAGE, HOSDURG TALUK, P.O.KODOTH. RSA NO.456/2006 2 4. NARAYANAN KUTTY, AGED 40 YEARS, S/O.KODOTH SUKUMARAN NAIR, HINDU, LAND HOLDER, PTI JOUNALIST, RESIDING AT PARLIAMENT STREET, NEW DELHI. 5. KANNANKUTTY S., AGED 38 YEARS, S/O.KODOTH SUKUMARAN NAIR, HINDU, LANDHOLDER, RESIDING AT KOTTODY, KALLAR VILLAGE, HOSDURG TALUK, P.O.KALLAR. 6. SUKUMARAN C., AGED 34 YEARS, S/O.KODOTH SUKUMARAN NAIR, LAND HOLDER, RESIDING AT KOTTODY, KALLAR VILLAGE, HOSDRUG TALUK, P.O.KALLAR. 7. PREETHI C.NAIR, D/O.KODOTH SUKUMARAN NAIR, HINDU, LAND HOLDER, RESIDING AT KOTTODY, KALLAR VILLAGE, HOSDURG TALUK, P.O.KALLAR. 8. CHERIPPADY MEENAKSHI AMMA, AGED 78 YEARS W/O.KODOTH KUNHIKANNAN NAIR, HINDU, LANDHOLDER, C/O.BALAN NAMBIAR, “RAJESH VIHAR”, KIZHAKUMKARA IN AJANUR VILLAGE, HOSDURG TALUK P.O.,AJANUR. 9. CHERIPPADY JANAKI AMMA, AGED 60 YEARS, D/O.CHERIPPADY MEENAKSHI AMMA AND KODOTH KUNHIKANNAN NAIR, RESIDING AT NANAMKODAL, KOTTODY VILLAGE AND POST, HOSDURG TALUK. 10. CHERIPPADY RAJALAKSHMI AMMA, AGED 57 YEARS, D/O.CHERIPPADY MANAKSHI AMMA & KODOTH KUNHIKANNAN NAIR, HINDU, LANDLORD, RESIDING AT PUNE, C/O.M.M.NAMBIAR, 25/459 A, PCNTA NIGIDI, PUNE 411 044. 11. CHERIPPADY RADHAKRISHNAN NAIR, AGED 54 YEARS, S/O.CHERIPPADY MEENAKSHI AMMA & KODOTH KUNHIKANNAN NAIR, HINDU, LANDHOLDER, RESIDING AT KARINDRAMKALLU, KALLAR VILLAGE, CHULLIKKARE, POST RAJAPURAM, HOSDURG TALUK. 12. CHERIPPADY GIRIJA AMMA, AGED 50 YEARS, D/O.MEENAKSHI AMMA AND KODOTH KUNHIKANNAN NAIR. LAND HOLDER, RESIDING C/O.BALAN NAMBIAR, "RAJESH VIHAR", KIZHAKUMKARA, AJANUR VILLAGE AND POST, HOSDURG TALUK. 13. CHERIPPADY RAJESHWARI AMMA, AGED 46 YEARS,D/O.MEENAKSHI AMMA AND KODOTH KUNHIKANNAN NAIR, HINDU, LAND HOLDER, RESIDNG AT PUNE, C/O.M.M NAMBIAR, 25/459A, PCNTDA NIGID, PUNE 411044. RSA NO.456/2006 3 14. CHERIPPADY UMA MOHAN, AGED 43 YEARS, D/O.MEENAKSHI AMMA AND KODOTH KUNHIKANNAN NAIR, HINDU, LANDHOLDER, C/O.DR.C.SUKUMARAN NAIR, MANDAPAM, P.O CHIRAKKAL, VIA KANNUR. ADV. SRI.T.K.VIPINDAS FOR R1 SMT.P.K.PRIYA FOR R2 TO 4,7,9,11 SRI.K.V.SREE VINAYAKAN FOR R2 TO 4,7,9,11 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14/12/2009, ALONG WITH RSA NO. 457 OF 2006 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.Nos.456 & 457 of 2006 -------------------------------------- Dated this the 14th day of December, 2009. JUDGMENT Heard counsel on both sides. 2. The subject matter of these appeals is a school and its property. It originally belonged to one Chindan Nair, father of defendant Nos.1, 2 and 7, father-in-law of defendant No.8, grandfather of defendant Nos.3 to 6 and paternal grandfather of plaintiff and defendant Nos.9 to 14. He died in the year 1961. Properties of Chindan Nair except the property which is the subject matter of these appeals were partitioned among the legal heirs. The school and its property were kept in common and the present suit is for partition of that property. Defendant No.15 is a purchaser of the share of some of the legal heirs. Defendant No.7 who is a sharer has been functioning as manager of the school. Defendant Nos.7 and 15 while opposing the suit claimed value of improvements alleging that new constructions were made in the school compound as per direction of the Education Department. Trial court granted a preliminary decree for partition. The cost of construction met by defendant No.7 was fixed as Rs.2,40,000/- and excluding the sum of Rs.1,50,000/- taken by him by way of public contribution, value of improvements payable to him was fixed at Rs.90,000/-. Aggrieved, defendant Nos.7 and 15 preferred A.S.No.10 of 2002 while against the finding that defendant No.7 is entitled to get value of RSA Nos.456 & 457/2006 2 improvements plaintiff filed appeal, A.S.No.11 of 2002. Plaintiff also filed a cross objection in A.S.No.10 of 2002 claiming that defendant No.7 is not entitled to value of improvements. First appellate court by its common judgment and decree dismissed the appeals and cross objection. R.S.A.No.456 of 2006 arises from the judgment and decree in A.S.No.10 of 2002 while R.S.A.No.457 of 2006 arises from the judgment and decree in A.S.No.11 of 2002. Learned counsel for appellants/defendant Nos.7 and 15 would submit that in so far the cross objection in A.S.No.10 of 2002 has been dismissed and that is not under challenge, it is not necessary to proceed with R.S.A.No.457 of 2006. Challenge of appellants/defendant Nos.7 and 15 is to value of improvements fixed by the trial court and confirmed by the first appellate court. Learned counsel for appellants submit that though trial court has accepted Ext.C1, report of the advocate commissioner it is without reference to Ext.C1 that cost of construction was fixed at Rs.2,40,000/-. That, according to the learned counsel is illegal in so far as there was no objection to Ext.C1. Learned counsel for the contesting respondents per contra contend that the cost of construction assessed by the advocate commissioner in Ext.C1 is excessive, it was done without the assistance of an expert and hence the report was not accepted by the courts below. It is also submitted by the learned counsel for contesting respondents that the evidence regarding the amount spent is only concerning the sum of Rs.2,40,000/- which has been taken into account by the courts below. RSA Nos.456 & 457/2006 3 3. There was no challenge to the preliminary decree for partition and hence that issue does not arise for consideration. Though contesting respondents have a contention that improvements made by appellant No.1/defendant No.7 was without the consent of other co-owners that contention was negatived by the trial court as seen from paragraph No.23 of the judgment. In paragraph No.21 of the judgment trial court observed from Ext.C1, report that construction was made in the suit property. The report would show that “some new constructions were made in the plaint schedule property”. Advocate commissioner has given depreciation of ten (10) years considering the oldness of the structures put up by appellant No.1/defendant No.7. In paragraph No.22 of the judgment trial court observed that since those structures were put up after 1994, depreciation of ten (10) years cannot be accepted. But in the matter of valuation of improvements trial court observed that as per Exts.X1 to X3, the amount spent by appellant No.1/defendant No.7 is Rs.2,40,000/- and deducting the public contribution of Rs.1,50,000/- proved as per Ext.B2, Rs.95,000/- was fixed as value of improvements payable to appellant No.1/defendant No.7. 4. I have gone through Ext.C1, report of the advocate commissioner. It is not disputed that the report was prepared by the advocate commissioner without the assistance of an expert. It is seen from the judgment of the trial court that the contesting respondents had vehementally opposed the assessment made by the commissioner in Ext.C1 claiming that the cost of RSA Nos.456 & 457/2006 4 construction fixed is exorbitant. Advocate commissioner was not examined in court. Therefore merely for the reason of commissioner giving his estimation of cost of construction it cannot be said that the report is binding on the court. 5. It is to be noted that going by Exts.X1 to X3 the amount spent by appellant No.1/defendant No.7 is only Rs.2,40,000/-. Though certain other documents were allegedly produced by appellant No.1 to prove that he had incurred further expenses for construction, those documents were not proved. It is difficult to think that being an educational institution and appellant No.1 being its manager, without documentary evidence regarding the amounts spent, he has been spending amount for construction. Atleast such a claim for expenses cannot be upheld in a court of law. Exts.X1 to X3 prove that the amount spent for construction is Rs.2,40,000/- and that has been taken into account by the trial court. First appellate court was satisfied with the assessment of value of improvements made by the trial court. First appellate court in paragraph No.17 of its judgment dealt with the evidence at depth and was not inclined to accept the version of appellant No.1/defendant No.7 in the absence of acceptable evidence that he spent huge amount for the construction work. First appellate court also observed that value of improvements cannot be fixed on mere assertions and presumptions. There is no acceptable evidence to show that any further amount was spent by appellant No.1. The decision of the courts below rest on the available evidence and in the circumstances stated above I am RSA Nos.456 & 457/2006 5 not inclined to think that the finding of the courts below is perverse or without any evidence whatsoever. As such no substantial question of law is involved requiring admission of these appeals. Regular Second Appeals are accordingly dismissed in limine. THOMAS P.JOSEPH, Judge. cks