Koorummal Sreedharan vs Ajitha
2021 Latest Caselaw 16893 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
            THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
    THURSDAY, THE 12TH DAY OF AUGUST 2021 / 21ST SRAVANA, 1943
                         RSA NO. 711 OF 2019
[Against the judgment and decree dated 31.1.2018 in A.S.No.283/2012 on the
file of Subordinate Judge's Court, Kannur arising from the judgment and
decree dated 30.6.2011 in FDIA No.3503/2007 in O.S.No.684/1999 of the
Additional Munsiff's Court, Kannur]


APPELLANT/APPELLANT/RESPONDENT NO.5:

            KOORUMMAL SREEDHARAN,
            KOORUMMAL HOUSE, PALLERI, NARATH P.O., KANNUR
            DISTRICT.
            BY ADV V.PREM CHAND


RESPONDENTS 1 TO 11/RESPONDENTS 2 TO 4,6 TO 13/PETITINERS:

     1      AJITHA
            D/O.MUNDON CHANDRI, KANNADI PARAMBA, KANNADI
            PARAMBA P.O., KANNUR DISTRICT, PIN-670 603.
     2      REENA,
            D/O.MUNDON CHANDRI, KANNADI PARAMBA, KANNADI
            PARAMBA P.O., KANNUR DISTRICT, PIN-670 603.
     3      REEJA,
            D/O.MUNDON CHANDRI, KANNADI PARAMBA, KANNADI
            PARAMBA P.O., KANNUR DISTRICT, PIN-670 603.
     4      VANAJA,
            D/O.KOLLAPPALA KALLYANI, NARATH AMSOM, NARATH
            P.O., KANNUR DISTRICT, PIN-670 603.
     5      SUJATHA,
            D/O.KOLLAPPALA KALLYANI, NARATH AMSOM, NARATH
            P.O., KANNUR DISTRICT, PIN-670 603.
     6      SUMA,
            D/O.KOLLAPPALA KALLYANI, NARATH AMSOM, NARATH
            P.O., KANNUR DISTRICT, PIN-670 603.
 R.S.A.No. 711 of 2019

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           7      M.VINODAN,
                  S/O.MUNDON CHANDRI, NARATH AMSOM, NARATH P.O.,
                  KANNUR DISTRICT, PIN-670 603.
           8      M.SREEJA,
                  D/O.MUNDON CHANDRI, KANNADI PARAMBA, KANNADI
                  PARAMBA P.O., KANNUR DISTRICT, PIN-670 604.
           9      K.BLAKRISHNAN,
                  S/O.KOLLAPPALA KALLYANI, NARATH AMSOM, NARATH
                  P.O., KANNUR DISTRICT, PIN-670 603.
          10      PRASANNA,
                  D/O.CHEMMARATHI, KOORUMMAL HOUSE, PALLERI,
                  NARATH P.O., KANNUR DISTRICT, PIN-670 603.
          11      VASANTHA,
                  D/O.CHEMMARATHI, KOORUMMAL HOUSE, PALLERI,
                  NARATH P.O., KANNUR DISTRICT, PIN-670 603.

                  RESPONDENTS 1 AND 5 IN A.S.283/2012 DIED DURING
                  THE PENDENCY OF THE APPEAL BEFORE THE LOWER
                  APPELLATE COURT.

      THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION
ON   06.08.2021,        THE   COURT   ON      12.08.2021   DELIVERED   THE
FOLLOWING:
 R.S.A.No. 711 of 2019

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                              J U D G M E N T

This appeal is against the judgment

and decree dated 31.1.2018 in A.S.No.283/2012

on the file of Subordinate Judge's Court,

Kannur (hereinafter referred to as 'the first

appellate court') challenging the judgment

and decree dated 30.6.2011 in FDIA

No.3503/2007 in O.S.No.684/1999 of the

Additional Munsiff's Court, Kannur

(hereinafter referred to as 'the trial

court'). The appellant herein is the fifth

respondent in FDIA No.3503/2007 and the

respondents herein are petitioners 2 to 4, 6

to 13 in A.S.No.283/2012.

2. The suit was one for partition.

The trial court passed a preliminary decree

for partition, which is as follows:-

1. that the plaint schedule property be divided into 5 equal shares and the plaintiffs along with defendant Nos.2 R.S.A.No. 711 of 2019

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to 4 are jointly entitled to get separate possession of 2/5 shares therein;

2. that the first defendant is entitled to the remaining 3/5 shares in the plaint schedule property and her share need not be separately allotted unless and until she pays requisite court fee for separate allotment;

3. that the plaintiffs and defendants No.2 to 4 are entitled to get future mesne profits from the date of suit till they get separate possession of their share from the first defendant. The quantum of mesne profits is to be decided at the final decree stage;

4. that the question regarding the reservation of the house whether with or without valuation is left open to be decided in the final decree stage;

5. that the costs of the suit do come out of the estate; viz., plaintiff's cost Rs.2,144/- and first defendant's cost Rs.1,872/-;

6. that the parties who paid court fee are at liberty to apply for passing a final decree;

7. that the suit is adjourned sine die;"

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3. Thereafter the plaintiffs filed

FDIA No.3503/2007 for passing a final

decree. The trial court passed a final

decree on 30.6.2011 as follows:-

1. that plot A in Ext.C2 plan is allotted to the share of plaintiff and defendant Nos.2 to 4;

2. that plot B house and well therein is allotted to the share of defendant No.1 in turn to respondent Nos.5 to 7;

3. that apart from the above allotment respondent Nos.5 to 7 shall pay an amount of Rs.31,137.60 to the plaintiff and defendant Nos.2 to 4 as owelty amount for equalization of share value. This amount shall be a charge over plot B in Ext.C2 plan till its realization;

4. that all the parties are directed to suffer their costs in accordance with their respective shares;

5. that Exts.C2 and C3 shall form part of the final decree;

6. deposit value of N.J.S. for engrossing final decree.

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4. The fifth respondent in FDIA filed

an appeal before the first appellate court.

The first appellate court dismissed the

appeal confirming the final decree passed by

the trial court.

5. Heard Sri.V.Prem Chand, the

learned counsel for the appellant.

6. Learned counsel for the appellant

herein contended that the trial court went

wrong in holding that respondent No.1 is not

entitled to get a house without valuation.

According to the learned counsel, Exts.B1 to

B26 clearly prove and substantiate the amount

spend on the house and its construction. It

was submitted that the trial court went wrong

in holding that the respondents No.5 to 7 are

liable to pay owelty amount to the plaintiff.

It was further argued that the Advocate

Commissioner assessed the building without R.S.A.No. 711 of 2019

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the help of an expert on that count.

7. There is no dispute regarding the

share to which the parties are entitled. The

appellant contended that the building was

allotted to the first respondent erroneously

and the building was not assessed properly.

According to him, he is not liable to pay

owelty amount as decreed by the court.

8. The objectionable part of the

judgment and decree, according to the learned

counsel for the appellant, is a finding that

the first defendant is entitled for

reservation of the house in his favour as far

as possible.

9. The concept of reservation of

property involved in a suit for partition in

favour of a co-owner is to be understood

clearly. The term 'reservation' amounts to

exclusion of certain property from partible R.S.A.No. 711 of 2019

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assets. In a partition suit, at the

preliminary decree stage, the court is called

upon to adjudicate the partibility of the

assets involved in the suit, the share of

each of the parties, whether any of the

parties is entitled to claim exclusion of any

property from division etc. Normally, in

order to claim exclusion of any item from

partition, the sharer claiming such right

will have to establish his exclusive right

over the property. A co-owner is a

constructive trustee for other co-owners.

The law presumes that each co-owner is the

absolute owner in respect of each part and

parcel of the land. Unless a co-owner

generally gets consent from other co-owners,

he had no right to make improvements in the

property so as to claim reservation. The

adjudication regarding the reservation of an R.S.A.No. 711 of 2019

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item in favour of a co-owner, the exclusion

of property from partition etc. is a matter

based purely on legal principles. In this

case, the question of reservation was not

decided during preliminary stage. Had it

been a case of reservation, it would have

been agitated during preliminary stage

itself. It was not done. In the final decree

stage, the question of reservation does not

arise in a partition suit. However the

question of equity can be considered. The

trial court and the first appellate court had

considered the question of equity and

entered a finding that the plot B house and

well therein is allotted to share of the

first defendant in turn to the respondents 5

to 7. Respondents 5 to 7 were directed to

pay an amount of Rs.31,137.60 to the

plaintiffs and defendants 2 to 4 as owelty R.S.A.No. 711 of 2019

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amount for equalisation of share value. For

such an amount, it is not required to assess

the value of the building with the help of an

expert commissioner as prayed for by the

learned counsel for the appellant.

10. The trial court and the first

appellate court concurrently held that the

legal rights of the parties have been

adjudicated upon by the trial court and

passed a final decree after evaluating the

equity in favour of all the sharers. This is

purely a question of fact arrived at by the

trial court and first appellate court. No

substantial question of law warranting

interference in second appeal is brought to

the notice of this Court. There is no

questions of law much less any substantial

questions of law. This second appeal is

therefore dismissed.

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In the result, this R.S.A. is

dismissed. There will be no order as to

costs. Pending applications if any stand

disposed of.

Sd/-

(N.ANIL KUMAR) JUDGE

MBS/