IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
RSA NO. 1075 OF 2006
AGAINST THE JUDGMENT IN OS 207/1995 OF PRINCIPAL SUB COURT,
KOLLAM
AGAINST THE JUDGMENT AND DECREE IN RFA 108/2003 OF DISTRICT
COURT,KOLLAM
APPELLANT/1st RESPONDENT/PLAINTIFF:
SETHULAKSHMI KUNJAMMA,KOTTANATTU BUNGLOW,
KARTHIKAPPALLY TALUK, ALAPPUZHA, FROM CHAVARA
THEKKUMBHAGOM, MALIBHAGOM MURI, VENGA ANEX, REP.
BY HER HUSBAND AND POWER OF ATTORNEY HOLDER-
DR.SASIKUMAR.
BY ADVS.SRI.S.SANTHOSH KUMAR
SRI.T.KRISHNANUNNI (SR.)
RESPONDENTS/APPELLANTS & 2nd RESPONDENT/DEFENDANTS:
1 VIJAYALEKSHMI KUNJAMMA,W/O.NARAYANAN UNNITHAN,
PLOT NO.233, P.T.P.NAGAR, THIRUVANANTHAPURAM.
2 SYMALADEVI KUNJAMMA,VRINDAVAN COLONY, B.16,
CHEVAYOOR, KOZHIKODE.(DIED)
3 PADMANABHAKURUP RAVEENDRAN UNNITHAN
AZHAKATHU LAKSHMI MANDIRAM, THEKKUMBHAGOM CHERRY,
CHAVARA VILLAGE, FROM "KIRAN", PANNIVIZHA, ADOOR.
ADDL.4 DR. LAKSHMI S NAIR, D/O SHYAMALA DEVI KUNJAMMA,
MOUTTATHU GOPALSREE, O-STREET, JAWAHAR NAGAR,
THIRUVANANTHAPURAM.
ADDL.5 DR.RASHMI S NAIR, -DO -DO-
ADDL.6 M.K.BHANUMATHY KUNJAMMA, SIVA, T.C. NO.9/1035/4,
SASTHAMANGALAM, THIRUVANANTHAPURAM.
LEGAL REPRESENTATIVES OF DECEASED 2nd RESPONDENT
ARE IMPLEADED AS ADDL.RSPONDENTS 4 TO 6 AS PER
ORDER DATED 29.01.2019 IN I.A 38/2008
BY ADVS.
C.RAJENDRAN
SRI.R.S.KALKURA
R.S.SREEVIDYA
THIS REGULAR SECOND APPEAL HAVING COME UP FOR
ADMISSION ON 01.07.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
Sathish Ninan, J.
==============================
R.S.A No.1075 of 2006
==========================
Dated this the 1st day of July, 2022
JUDGMENT
The plaintiff in a suit for partition is the appellant. The trial court passed a preliminary decree, granting reservation in favour of the plaintiff over two buildings namely, "B" and "C" schedule situated in the plaint "A" schedule property. The reservation granted was set aside by the first appellate Court and held the buildings to be partible. It is aggrieved thereby, the Second Appeal is preferred.
2. Plaint A schedule has an extent of 3 Acres and 15 Cents. Plaint B and C schedules are buildings situated in the plaint A schedule property. The plaint A schedule belonged to one Padmanabha Kurup. The plaintiff and defendants are his children. In the year 1967, Padmanabha Kurup executed Ext A8 Settlement Deed in favour of defendants 1 to 3 conveying the property to R.S.A No.1075 of 2006 -: 2 :- them. In the year 1969, the children together executed Ext A1 general power of attorney in favour of their father Padmanabha Kurup, constituting him as their attorney, to manage the property. In the year 1972, Padmanabha Kurup executed Ext A2 Settlement Deed in favour of the plaintiff and his wife Bhanumathi Kunjamma, conveying the 1/3 rights of first defendant over the property to them. Subsequently in the year 1990, Bhanumathi Kunjamma executed Ext A3 settlement deed in favour of the plaintiff conveying her share. Thus, 1/3rd right over the property became vested with the plaintiff. It is accordingly that the plaintiff has instituted the suit seeking partition and separate possession of her 1/3 share. As stated, there are two buildings in the "A" schedule property namely the plaint "B" and "C" schedules. In the B schedule, a hospital is being conducted by the plaintiff's husband. The C schedule building, which is styled as 'Annex', is a R.S.A No.1075 of 2006 -: 3 :- residential building. The plaintiff claims that the B scheduled building that existed in plaint A schedule was renovated by the plaintiff and her husband, and that the C schedule building was put up by them. They raise a plea of reservation and exclusion of plaint B and C schedule from partition.
3. The dispute between the parties is essentially centered around the partibility of plaint B and C schedule buildings.
4. The trial court excluded both the B and C scheduled buildings from partition. However, the lower appellate court reversed the same and held that the plaint B and C schedule buildings are also liable to be partitioned.
5. Heard the learned senior counsel Sri.T.Krishnanunni on behalf of the appellant/plaintiff and Sri.R.S.Kalkura, learned counsel for the respondents/defendants on the following Substantial R.S.A No.1075 of 2006 -: 4 :- Questions of Law.
1) Does not the plea of the
defendants that the constructions were
effected by their father Padmanabha Kurup, imply consent on their part as co-owners to effect the improvements / constructions in the property?
2) When there is no finding by the Courts that plaintiff acted malafide in effecting constructions in the property with intent to deny in-specie division, and the defendants admittedly having not expended any amounts for construction, did not the first appellate court err in holding plaint B and C schedule buildings to be partible?
6. Sri.T.Krishnanunni, the learned senior counsel for the appellant/plaintiff would argue that, on the R.S.A No.1075 of 2006 -: 5 :- evidence on record, an implied consent on the part of the defendants for putting up constructions in the property could be presumed. After having consented for carrying out constructions, the defendants cannot claim it to be partible, it is contended. Sri.R.S.Kalkura, the learned counsel for the defendants/respondents would on the other hand contend that, Sri.Padmanabha Kurup having effected the constructions, the plaintiff cannot claim exclusive benefit of the same, and that plaint B and C schedule buildings are also liable to be partitioned.
7. That plaint A schedule property on which the plaint B and C schedule buildings stand, originally belonged to Padmanabha Kurup - the father. That, at the time of execution of Ext A8 settlement deed by the father in favour of the defendants, there existed a building - plaint B schedule as it then was, is not disputed. It is not in dispute that the plaint B schedule building was subsequently renovated and that R.S.A No.1075 of 2006 -: 6 :- the plaint C schedule building was subsequently put up. While the plaintiff claims that the entire expenses in the said regard were met by the plaintiff and her husband, the defence contention is that the construction and renovation were effected by their father Padmanabha Kurup. The defendants do not have a contention that the renovation and construction were effected without their consent or against their consent. They do not have a case that the renovation and construction were effected without their knowledge. As noticed above, their only contention is that their father -Padmanabha Kurup had effected the same. At that point of time, the children had executed Ext A1 power of attorney in favour of their father - Padmanabha Kurup to manage the property. Therefore, on the contention set up by the defendants and in the backdrop of Ext A1 power of attorney, it cannot now be contended that they had not consented to the renovation and construction of the plaint B and C R.S.A No.1075 of 2006 -: 7 :- schedule buildings. Substantial Question of Law No.1 is thus answered in favour of the appellant.
8. The plaintiff contends that she and her husband had expended the amounts for the renovation and construction. The oral evidence of PWs 2 and 3, who are masons, coupled with Ext A5 series of bills and Ext A6 series vouchers indicate expenditure of amounts by the plaintiff, for construction. Admittedly, in the plaint B schedule building, a hospital is being run by the plaintiff's husband. The additional construction styled as 'Annex' is being used as residential building by the plaintiff. Even going by the defendants' case, their father Padmanabha Kurup had permitted the plaintiff's husband to run hospital in the plaint B schedule. There is no evidence to prove that the expenses for renovation of plaint B schedule building and for the construction of plaint C schedule building were met by Padmanabha Kurup. The renovation and construction being for the R.S.A No.1075 of 2006 -: 8 :- purpose of running of hospital by the plaintiff's husband, in the light of the oral evidence of PWs 2 and 3, and Exts. A5 series and A6 series documents, it is only reasonable to infer that the construction and renovation were effected by the plaintiff and her husband. As noticed, there is no evidence to the contrary.
9. Thus, having found that the renovation and construction were on consent from the defendants, and that the expenses were met by the plaintiff and her husband, the only question that would remain to be considered is as to whether the constructions were effected in order to deprive in specie division of the property. Noticeably, the extent of the plaint schedule property is quite large - 3 Acre 15 Cents; the construction occupies only a small extent of the same. There is no contention that the constructions were effected in such a manner as to deplete the value of the R.S.A No.1075 of 2006 -: 9 :- remaining property.
10. Having found that the defendants had consented to the effecting of the construction/renovation, that they were effected at the expense of the plaintiff, and that in specie division of the property will not be effected by the construction, it is held that the plaintiff has special right over the plaint "C" schedule building and that it is to be excluded from partition.
11. As regards the improvements/renovation effected in the B schedule building, there is no evidence on record to show the value of the building as it originally existed, regarding the improvements made, or the actual value expended for the same. In the light thereof, the claim of the plaintiff for special right over the plaint B schedule building, and to exclude it from partition, is not liable to be allowed. Substantial question of law No.2 is answered as above. R.S.A No.1075 of 2006 -: 10 :-
12. In the result, the Regular Second Appeal is allowed. The plaintiff - appellant is granted special right over the plaint C schedule building and the same is excluded from partition. Plaint A and B schedules are found to be partible. The decree of the first appellate Court will stand modified to the above extent. In all other respects, the decree of the first appellate court is confirmed.
Parties to bear their costs.
Sd/-
Sathish Ninan, Judge vdv