IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 8TH AUGUST 2011 / 17TH SRAVANA 1933 RFA.No. 56 of 2003(F) -------------------- AGAINST THE ORDER DATED 31/10/1998 IN IA.1627/1991 IN OS.9/1974 of PRINCIPAL SUB COURT, PALAKKAD .................... APPELLANTS/PLAINTIFFS3,6,7 TO 14 & DEFENDANTS 6 TO 8 & 10 & 11: ------------------------------------------------------------------------------------------------------ 1. ARUMUGHAN, S/O RAMAN. 2. KUNCHATHA, W/O KANNAN 3. KANNAMMA, D/O KUNCHATHA. 4. KANNAMMA, D/O KANNIYAMMA. 5. KAMALAL, D/O KANNIYAMMA. 6. SELVATHAL, D/O KANNIYAMMA. 7. VELUCHAMI, S/O KANNIYAMMA. 8. CHINNAVELLAYAPPAN, HUSBAND OF KANNIYAMMA. 9. KANNAN, HUSBAND OF LATE MYLA. 10. SELVARAJ, S/O LATE MYLA. 11. MARIYAPPAN, S/O LATE NAGAMMAL. 12. VASU, S/O LATE NAGAMMAL. 13. KUNJAL, D/O LATE NAGAMMAL. 14. MURUKAN, S/O LATE NAGAMMAL. 15. ARUMUGHAN, HUSBAND OF LATE NAGAMMAL. ALL ARE RESIDING AT THOTTICHIPATHI, PATTANCHERRY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.V.CHITAMBARESH SRI.T.C.SURESH MENON SRI.R.RAJA RAJA VARMA SMT.M.R.VALSA SRI.SREEKANTH.K.R RESPONDENTS/DEFENDANTS 2 & 12 TO 17: --------------------------------------------------------------- * 1. V.R. RATNAMMAL, RESIDING AT R.M. PALATTU BUNGLOW, PALAKKAD TALUK.(DIED) 2. CHELLATHAL, W/O LATE RAMASWAMY GOUNDER. 3. BHANUMATHI, D/O CHELLATHAL. 4. MURUKESWARI, D/O CHELLATHAL. 5. SUSEELA, D/O CHELLATHAL. 6. MANIKANDAN, S/O CHELLATHAL. RESPONDENTS 2 TO 6 ARE RESIDING AT THOTTICHIRAPATHI, PATTANCHERY VILLAGE, CHITTUR THALUK, PALAKKAD DISTRICT. 7. SUNDARASWAMY, S/O NARAYANASWAMY GOUNDER, RESIDING AT KARADIPPARAKALAM, KUNGATTUPATI VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. * THE FIRST RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER ORDER IN I.A. 2521/2003 DATED 9.12.2003. ADV. SRI.V.V.ASOKAN FOR R2 TO 6 THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 08/08/2011 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.BHAVADASAN,J R.F.A.NO.56 OF 2003 F DATED 08 TH DAY OF AUGUST ,2011 JUDGMENT The plaintiffs 3,6,7 to 14 and the defendants 6 to 8 are the appellants. The appeal is directed against the final decree passed in OS49/1974, which was a suit for partition 2. The controversy in this appeal falls within a narrow compass. The final decree in OS.9/1974 was passed in the following terms:- 1. A schedule property mentioned in Ext.C1 shown in orange shade in Ext.C1(a) plan is allotted to the sharers of petitioners and the 17th respondent together, B schedule shown in blue shade to that of respondents 12 to 16 and C schedule given in green shade to the share of R6 to R11. 2. The pathway and well referred to in Ext.C1 shown in red share in Ext.C1(a) will be kept in common for the enjoyment of all the sharers. 3. Petitioners and 17th respondent together are found liable to pay Rs.141.67 as owelty to respondents 12 to 16, respondents 6 to 11 to pay Rs.1,211.12 to respondents 12 to 16 and respondents 12 to 16 :2: R.F.A.NO.56 OF 2003 F Rs.235.18 to the petitioners and 17th respondents and Rs.39.19 Ps. to the respondents 6 to 11. 4. Total market value of the property for the purpose of stamp duty is fixed as Rs.3,94,550/- and value of NJS is calculated as Rs.19,727.50/-. Value of separated share will be calculated for engrossing the final decree at 5%. 5. Petitioners and respondent No.17 together to pay Rs.1,32,401/- and respondents 6 to 11 to pay Rs.66,364/- as value of improvements to respondents 12 to 16. The sharers will be entitled to execute the decree and get separation of their share only on payment of the value of improvements payable to respondents 12 to 16. 6. Respondents 12 to 16 will be free to remove items 1 to 4 and pump house mentioned in their objection at their risk and cost. 7. The sharers will be entitled for mutual set off the amount payable to the other sharers. It is also made clear that the amount so found to be paid by their respective sharers will be a charge on their respective share of properties. 8. Ext.C1(a) will form part of the decree. :3: R.F.A.NO.56 OF 2003 F 3. The grievances of the appellants is with regard to the allocation of the property to the 17th respondent along with the petitioners before the court below. It is pointed out that, the 17th respondent is an assignee from the 5th respondent. 5th respondent died during the pendency of the proceedings and his legal heirs are brought on party array as respondents 6 to 11. 4. The only grievance is that 17th respondent could not have been allotted shares along with the petitioners. In fact he should have been allotted the shares along with the respondents 6 to 11 who are legal heirs of the 5th respondents who is the assigner of the 17th respondents. 17th respondent can get only the property that is allotted to 5th respondent and no representation by the respondents 6 to 11. 5. It is not disputed before this Court that 17th respondent is an assignee from the 5th respondent. As noticed that he died during the pendency of the proceedings and his legal heirs were brought on the party array as :4: R.F.A.NO.56 OF 2003 F respondents 6 to 11. Respondent No.17 can hope to get the share allotted to respondents 6 to11. With that extent the final decree needs modifications. Therefore the modified final decree can be passed in the following terms. 1. A schedule property mentioned in Ext.C1 shown in orange shade in Ext.C1(a) plan is allotted to the sharers of petitioners and B schedule shown in blue shade to that of respondents 12 to 16 and C schedule given in green shade to the share of respondents 6 to 11 and 17th respondent. 2. The pathway and well referred to in Ext.C1 shown in red share in Ext.C1(a) will be kept in common for the enjoyment of all the sharers. 3. Petitioners are found liable to pay Rs.141.67Ps as owelty to respondents 12 to 16, respondents 6 to 11 to pay Rs.1,211.12Ps to respondents 12 to 16 and respondents 12 to 16 Rs.235.18Ps to the petitioners and 17th respondents and Rs.39.19Ps. to the respondents 6 to 11 and 17th respondent. 4. Total market value of the property for the purpose of stamp duty I fixed as Rs.3,94,550/- and value of NJS is calculated as Rs.19,727.50Ps. Value of separated share will be calculated for engrossing the final decree at 5%. :5: R.F.A.NO.56 OF 2003 F 5. Petitioners together to pay Rs.1,32,401/- and respondents 6 to 11 and 17th respondent to pay Rs.66,364/- as value of improvements to respondents 12 to 16. The sharers will be entitled to execute the decree and get separation of their share only on payment of the value of improvements payable to respondents 12 to 16. 6. Respondents 12 to 16 will be free to remove items 1 to 4 and pump house mentioned in Ext.C2 and thatched sheds mentioned in their objection at their risk and cost. 7. The sharers will be entitled for mutual set off the amount payable to the other sharers. It is also made clear that the amount so found to be paid by their respective sharers will be a charge on their respective share of properties. 8. Ext.C1(a) will form part of the decree. Any mutual adjustments of the amounts due as per interim order will be decided in the execution of the final decree. The disbursement and adjustment of the bid amount and other amount lying in the court and respective :6: R.F.A.NO.56 OF 2003 F shares allotted to the parties on those amounts will be decided in the execution stage. P.BHAVADASAN JUDGE kkj // TRUE COPY // PA TO JUDGE