IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN MONDAY, THE 11TH JULY 2011 / 20TH ASHADHA 1933 Mat.Appeal.No. 315 of 2011() ---------------------------- OP.20/2005 of FAMILY COURT,TRIVANDRUM .................... APPELLANT/PETITIONER IN O.P. ----------------------------------------------- ZEENATHUNNESA BEEVI,W/O.ABDUL KHADER, T.C.48/502,AMBALATHARA,THIRUVANANTHAPURAM. BY ADV. SRI.ARUN.B.VARGHESE RESPONDENT/RESPONDENT IN O.P. ---------------------------------------------------- ABDUL KHADER,S/O.AHAMMED KANNU, MUJAHID MOSQUE,STATUE,PRESS ROAD,NOW RESIDING AT FAROOQ MANZIL,NAMBALI,NITHIRAVILA.P.O,KANJUIPURAM, KANYAKUMARI DISTRICT-629161. ADV. SRI.RAJESH P.NAIR FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 11/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: dmb THOTTATHIL B.RADHAKRISHNAN & N.K.BALAKRISHNAN, JJ. ---------------------------------- Mat. Appeal No.315 OF 2011 with C.M. Application No.889 of 2011 --------------------------------------------- Dated this the 11th day of July, 2011 J U D G M E N T THOTTATHIL B.RADHAKRISHNAN,J. This appeal is filed by the wife. The application seeks condonation of delay of 864 days. It is submitted on behalf of the appellant that an additional affidavit is being filed with materials to show that the appellant has certain medical conditions which also contributed to the delay. It is also stated that there was an application for review before the court below and pendency of that matter has also contributed to the delay. 2. While the appellant projects a case that respondent had deserted her, the learned counsel appearing for the respondent says that his client has no objection to cohabit with the appellant. We notice that the parties is an elderly couple. Both of them were Government servants. They have two married daughters. Yet we are inclined to think that this appeal need not linger here any longer having regard to the facts and factors Mat. Appeal No.315 OF 2011 with C.M. Application No.889 of 2011 2 which we could point out herein. 3. On facts, it is admitted that an extent of about 25 cents was obtained by the appellant wife as gift from her father in 1973. Later, following their union, the couple decided to have a residential building. The wife appears to have given a consent letter to the husband for the purpose of availing housing loan. It appears that there was a mortgage created for the purpose of some facility. The fact of the matter remains that the building was completed and the couple resided there with their children. 4. Ultimately, when the wife sued for a declaration and the land and building belongs to her, the husband made a counter claim that the building belongs to him. The Family Court assimilating the entire evidence held that the husband has one half right over the building. His such half right is recognized on the basis of the contribution that he could be deemed to have made for the purpose of the construction. 5. The learned counsel on both sides point out different aspects, to show the unworkable nature of the decree if it were to stand as it is. Mat. Appeal No.315 OF 2011 with C.M. Application No.889 of 2011 3 6. The building was put up on the land which stood in the name of the wife following the gift by her father. There is no legally recognizable transfer of property by which the husband got any right or title over any part of that parcel of land. Under such circumstances, we are clear in our mind that what the husband gets under the impugned decree is only half right over the structure called building and the wife keeps the entire land and the other half of the building structure. In this view of the matter, the Family Court ought to have further proceeded to order partition on such basis, following whatever mode would apply after declaring the shares and issue such order / decree that could pave way for either of the parties to take recourse to due process and procedure for execution. 7. For the aforesaid reasons, we allow the application for condonation of delay. On the appeal, we confirm the findings in the impugned judgment and direct the court below to further proceed with the suit to consider effectuating partition in the light of what is stated above. To facilitate this, the order disposing the suit will stand set aside without in any manner Mat. Appeal No.315 OF 2011 with C.M. Application No.889 of 2011 4 disturbing the findings and declarations and, resultantly, O.P.No.20 of 2005 on the file of the Family Court, Thiruvananthapuram is remanded to the court below for further proceedings in the light of the aforesaid. The parties are directed to mark their appearance before the Family Court on 25.07.2011 and the Court below will proceed with the matter in accordance with law. Execution proceedings, if any, now pending on the basis of the impugned decree will stand dismissed without prejudice to proceedings in terms of this judgment. No costs. THOTTATHIL B.RADHAKRISHNAN JUDGE. N.K.BALAKRISHNAN JUDGE dmb