IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 22ND DECEMBER 2009 / 1ST POUSHA 1931 RSA.No. 1302 of 2008() ---------------------- AS.196/2005 of DISTRICT COURT., ERNAKULAM OS.952/1995 of PRL.MUNSIFF.COURT.,ERNAKULAM (IA 523/98) .................... APPELLANTS/APPELLANT & IS RESPONDENT/1st DEFENDANT/ADDITIONAL APPELLANTS: -------------------------------------------------------- 1. BHANUMATHI AMMA, D/O.KUNJIPILLA AMMA, MATHEPPILLIL HOUSE, CHUTTUPADUKARA, EDAPPALLY P.O., KOCHI-24. (DIED) 2. M.CHANDRA MOHAN, AGED 65 YEARS, S/O.LATE BHANUMATHI AMMA, D-III, STAFF QUARTERS, COCHIN UNIVERSITY CAMPUS, KOCHI - 682 022. 3. M.RAJESWARY, AGED 63 YEARS, W/O.K.SREEDHARA MENON, RESIDING AT 'RAJASREE', KUZHUPULLIL HOUSE, POONITHURA P.O. 4. M.BALASUBRAMANIA PANICKER, AGED 56 YEARS, S/O.LATE BHANUMATHY AMMA, RESIDING AT FLAT NO.1, CHAITHRA UDYAN, KARNIK ROAD, NEAR HOLY CROSS ROAD, KALYAN WEST - 421 304. 5. M.B.MALLIKADEVI, AGED 54 YEARS, KRISHNA EAST, MATHEPPILLIL HOUSE, CHUTTUPADUKARA, EDAPPALLY P.O., KOCHI-24. 6. M.CHANDRASEKHARAN @ JAYAN, KRISHNA EAST, MATHEPPILLIL HOUSE, CHUTTUPADUKARA, EDAPPALLY P.O., KOCHI-24. 7. M.RAJAGOPALAN, S/O.LATE BHANUMATHY AMMA, FLAT NO.B-401, SREE GANESH CO-OPERATIVE HOUSING SOCIETY LTD, PLOT NO.18-A, 18-B, SECTOR - 14, SAN PADA EAST, NEW MUMBAI - 400 705. BY ADV. SRI.O.RAMACHANDRAN NAMBIAR SRI.K.S.BABU SMT.N.SUDHA RESPONDENTS/RESPONDENTS/ADDL.2ND PTRS/RESPONDENTS 2 & 3/ADDITIONAL PLAINTIFF & DEFENDANT 2 AND 3: ---------------------------------------------------------- 1. VIJAYALAKSHMI, AGED 50 YEARS, W/O.SUKUMARAN, KIZHAKKEMATHEPPILLI HOUSE, EDAPPALLY, KOCHI-24. 2. SIVAKAMI @ CHINNU, AGED 57 YEARS, "KRISHNA", MATHEPPILLIL HOUSE, CHUTTUPADUKARA, EDAPPALLY, KOCHI-24. 3. MOLY ABRAHAM, AGED 57 YEARS, W/O.MATHUKUTTY, NADAYIL HOUSE, KUZHIMALIL ROAD, CHUTTUPADUKARA, EDAPPALLY, KOCHI-24. ADV. SRI.ASP.KURUP FOR R1 SRI.SADCHITH.P.KURUP FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.1302 of 2008E --------------------------------------- Dated this 22nd day of December, 2009 JUDGMENT The second appeal arises from judgment and decree of learned Additional District Judge, Ernakulam in A.S.No.196 of 2005 confirming the final decree passed by learned Munsiff, Ernakulam as per order in I.A.No.523 of 1998 in O.S.No.952 of 1995. Grievance of appellants is that plots B2 and C allotted to them as per final decree is not in any way usable as it lies in U-shape on the sides of plot B1 which was assigned in favour of defendant No.2/respondent No.2. Learned counsel contends that when division is not equitable in as much as it renders the plot allotted to the defendants unusable court below ought to have adopted the devise of sale of property either between the sharers or to the public. Learned counsel has placed reliance on the decision in Sathi Lakshmanam Vs. Mohandas (2008(4) KLT 409) where, in para 15(8)it was held, “In such a case, if all the shareholders agree or the court finds that suit property is incapable of division in specie, it is for the court to devise the most appropriate and suitable method which is beneficial for all the shareholders for a just and fair division of the property. The court has the inherent power to devise the most suitable means. Court can allot the property to one share with a direction to pay owelty to the other sharers. Court can also direct a sale of the property among the sharers or public and divide the sale proceeds among the sharers, R.S.A.No.1302 of 2008 2 depending on the facts and circumstances of each case. It cannot be said that in no case there cannot be a sale of the property among the sharers or a public sale. What is the best mode of division in such a case is to be decided by the court on the facts of that case. Whatever be the course so adopted, it must be the most beneficial to all the sharers. It is not the interest of that shareholder in possession of the property is to be looked into but the interest of all the shareholders.” Counsel for respondent No.1/plaintiff would contend that division as now made was occasioned by the conduct of defendant No.1 transferring plot B1 to her daughter who is also a party in the final decree and hence defendants have no reason to complain. 2. I have gone through the copy of Ext.C2 made available to me by learned counsel for appellants/contesting defendants. Plot B1 is kept out of division since it was assigned to the daughter by defendant No.1 and her sister. Learned Munsiff has observed that the said transfer was without consent of the plaintiff and hence it was not binding on her. Going by Ext.C2, the sketch prepared by the Taluk Surveyor, had not the transfer in favour of daughter of defendant No.1 been there, a convenient division of the property between the sharers was not difficult. Since plot B1 has already been assigned to the daughter by defendant No.1 and her sister, that plot is kept out of division and the contesting defendants have no complaint about that, the only way out was to divide the property as now shown in Ext.C2. R.S.A.No.1302 of 2008 3 That situation is brought about by the assignment made by defendant No.1 and her sister without the consent of plaintiff. In that situation, contesting defendants have no reason to complain that the division is inequitable or the plots allotted to them are not usable and then request for a sale. That view has been taken by the courts below which I find no reason to interfere with. I also find the plots allotted to the contesting defendants have road frontage though, not in great extent. The road frontage for plot D allotted to the plaintiff also is comparatively low. Materials on record show that in the circumstance brought about by the conduct of defendant No.1 and her sister, the division possible is in the way shown in Ext.C2. In the circumstance the decision relied on by learned counsel has no application. No substantial question of law is involved for a decision in this appeal. Resultantly the second appeal is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/