Vanaja vs Edammalol Mohanan
2021 Latest Caselaw 16117 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

              THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

    TUESDAY, THE 3RD DAY OF AUGUST 2021 / 12TH SRAVANA, 1943

                        R.S.A.No.906 OF 2020
 AGAINST THE JUDGMENT AND DECREE DATED 18.10.2019 IN AS 13/2018
    ON THE FILE OF THE SUB COURT, VATAKARA ARISING OUT OF THE
 JUDGMENT AND DECREE DATED 30.01.2018 IN O.S.No.212/2016 ON THE
              FILE OF THE MUNSIFF'S COURT, VATAKARA

APPELLANT/APPELLANT/DEFENDANT No.1:

            VANAJA,
            AGED 58 YEARS,
            W/O.SATHEESAN,
            KUMAR VILLA MEETHALEKULANGARATH HOUSE,
            NEAR KULANGARATH KSHETHRAM,V.O.ROAD,
            P.O NUT STREET, BATAKARAAMSOM, DESOM,
            VATAKARA TALUK, KOZHIKODE DISTRICT.

            BY ADVS.
            SRI.K.RAKESH ROSHAN
            SMT.THUSHARA.V

RESPONDENTS/RESPONDENTS/PLAINTIFF & DEFENDANT No.2:

    1       EDAMMALOL MOHANAN,
            AGED 62 YEARS,
            S/O.KUMARAN, KALATHINKAL THAZHEKUNIYIL,
            NADAKKUTHAZHA VILLAGE,POST-MEPPAYIL,
            MEPPAYIL DESOM, VATAKARA TALUK,
            KOZHIKODE DISTRICT.
    2       SURENDRAN,
            AGED 40 YEARS,
            S/O.KUMARAN,
            CHANDINI,
            NEAR MEPPAYIL BHAGAVATHI KSHETHRAM,
            POST-MEPPAYIL,
            NADAKKUTHAZHA AMSOM, MEPPAYIL DESOM,
            VATAKARA TALUK,
            KOZHIKODE DISTRICT, PIN-673 505.

        THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION

ON 29.07.2021, THE COURT ON 03.08.2021 DELIVERED THE FOLLOWING:
 R.S.A.No.906 of 2020

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                          JUDGMENT

Heard the learned counsel for the appellant/the 1 st

defendant.

2. The appellant herein is the 1st defendant in

O.S.No.212/2016 on the file of the Munsiff's Court,

Vatakara (hereinafter referred to as 'the trial court') and

the appellant in A.S.No.13/2018 of the Sub Court,

Vatakara (hereinafter referred to as 'the first appellate

court'). The 1st respondent is the plaintiff and the 2 nd

respondent is the 2nd defendant in the suit. The suit was

for partition.

3. By the judgment and decree dated 30.1.2018, a

preliminary decree was passed on the following terms:-

1) Plaint A schedule property shall be divided into 9 equal shares and 7 such shares shall be allotted to the plaintiff.

2) Defendant Nos.1 and 2 are entitled to 1/9 share each.

R.S.A.No.906 of 2020

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3) Plaintiff is entitled to get plaint A schedule property in equity.

4) Any of the parties paying Court Fee is at liberty to apply for passing final decree.

5) The costs of the proceedings shall come out of the estate.

6) The suit is adjourned sine die.

4. The 1st defendant carried the matter in appeal.

The first appeal was dismissed confirming the judgment

and decree of the trial court.

5. The estate of Edamalol Kanaran was partitioned

among his wife Kalyani and his children who were Janu,

Kumaran, Devi, Mani, Narayani, Santha, Sarada, Leela and

the 2nd defendant Surendran respectively. As per the plaint R.S.A.No.906 of 2020

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contention, the plaint schedule property consisting of a

house and courtyard was kept in common in Ext.A1

partition deed of the year 1968 of which the plaintiff who

stated to be acquired 7/9 shares from co-sharers.

6. The 1st defendant filed written statement

disputing the identity of the plaint schedule property and

claimed the house therein is in her share in equity. She

contended that at the time of partition, her mother was

residing in the house and thus the property appurtenant

to the house was allotted to her mother's share. The

house and compound was kept in common with an

intention to accommodate all the sharers. When all the

sharers acquired their own houses, mother alone was

staying in the house. She would further contend that she

was looking after the house and the property after the

death of her mother. She claimed her special right over

the building in question.

R.S.A.No.906 of 2020

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7. The 2nd defendant filed written statement

disputing the claim of the plaintiff that he had spent

Rs.2,50,000/- on the house. In the event of partition he

had claimed share on the eastern side.

8. The objectionable part of the judgment,

according to the learned counsel for the appellant, is the

finding that the plaintiff who is found to be in possession

of the house is entitled to get priority over others. In the

operative portion of the judgment, the priority mentioned

in paragraph 10 of the judgment is not found a place. The

concept of reservation of property in a suit for partition is

to be understood clearly. It no doubt excludes others from

the partible assets. In a partition suit, it is the duty of the

trial court to ascertain and adjudicate the partibility of the

property in the suit with special reference to the shares

thereof. In order to claim special right over the building, it

is incumbent on the part of the plaintiff to establish that R.S.A.No.906 of 2020

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he should be in exclusive possession over the building to

which he has special right. In the case on hand, the

plaintiff has no such case that the building exclusively

belonged to him.

9. A co-owner is a constructive trustee for another

co-owner. All the co-owners are having equal right over

the property. Unless a co-owner gets consent from other

co-owners he is legally precluded from claiming exclusive

right over the property. He cannot make improvements

thereon to claim special right over the same. In a case

where the co-owner effects substantial improvement over

the property without the knowledge and consent of other

co-owners, the law presumes that the improvements so

made is for and on behalf of other co-owners as well.

10. In a suit for partition, the material point to be

decided during preliminary stage is as to whether the

plaint schedule property is available for partition or not. In R.S.A.No.906 of 2020

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case special right is claimed over the building or property,

the court is competent to adjudicate upon the claim and

exclude the property so claimed holding that the item over

which special right is claimed is not partible. In India, a

building can be owned separately from the land. In other

words, the ownership of land and ownership of building

can be different. There is no presumption that whatever

attached to the earth goes along with the land. In case

special right is claimed over the building, the court is

competent to adjudicate that question and decide as to

whether the ownership is established. In the case on

hand, both the courts below concurrently held that no

evidence was adduced to substantiate ownership over the

building by the plaintiff, the 1st defendant and the 2nd

defendant respectively.

11. In the case on hand, the appellant raises a

contention that the house is to be allotted to her for her R.S.A.No.906 of 2020

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use and it is unlikely to cause difficulty to other sharers.

The said plea is based on equity and the court is

competent to decide such a plea. The essential distinction

between the claim for reservation and claim based on

equity for allotting a particular portion of the property or

building thereon to a sharer results in exclusion of the

property from partition. However, the claim for working

out equity will only result in allotment of the property in

favour of that person which will certainly be included in

the partible asset. In the former case there is a total

exclusion; whereas in the latter case the property which is

liable to be partitioned is allotted to a particular sharer in

equity. The claim for reservation can be considered while

passing preliminary decree and equity regarding allotment

is usually relegated to the final decree proceedings. Hence,

the equity regarding the allotment of the house cannot be

made during preliminary decree stage. After valuing the entire R.S.A.No.906 of 2020

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share over the property including the house, the question

of equity can be decided. If house is allotted to one of the

parties in equity during preliminary decree stage and if it

is found that the same is unworkable during final decree

stage after valuing the entire share over the property

equally, it will certainly cause untold prejudice to one of

the parties in the suit. So valuing the entire assets is a

condition precedent for deciding equity. Hence, the

question can only be considered at the final decree stage.

Going by the preliminary decreetal portion, no

reservations and equities are made. No other points are

argued before me. The preliminary decree passed by the

trial court as confirmed by the first appellate court are not

liable to be prima facie interfered with. No substantial

questions of law are involved in this appeal.

In the result, this Regular Second Appeal is

dismissed. It is clarified that it is within the realm of the R.S.A.No.906 of 2020

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trial court to consider the question of equity in the final

decree stage untrammeled by the observations and

findings contained in the judgment of the trial court and

the first appellate court. There will be no order as to

costs. Pending applications, if any, stand closed.

Sd/-

N.ANIL KUMAR, JUDGE skj