Kerala High Court
Molly vs Molly on 18 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
THURSDAY, THE 18TH DAY OF MARCH 2021 / 27TH PHALGUNA, 1942
OP(C).No.1961 OF 2020
AGAINST THE ORDER IN FDIA NO.1867/2018 IN O.S.NO.322/2015 OF
MUNSIFF COURT, ALATHUR
PETITIONER/1ST RESPONDENT/1ST PLAINTIFF:
MOLLY,
AGED 58 YEARS,
D/O.LATE INDIRA, RESIDING AT B2 ASAWARI CHS,
SECTOR 10, SHANTI NAGAR, MIRA ROAD,
(EAST) THANE, MUMBAI - 401 107.
BY ADVS.SRI.K.S.BHARATHAN
SRI.ALPHIN ANTONY
SRI.AADITHYAN S.MANNALI
SRI.VISAKH ANTONY
SRI.ABEL ANTONY
SRI.CHRISTINE MATHEW
RESPONDENTS/ PETITIONER/D3 TO D9/SUPPLEMENTAL RESPONDENTS:
1 RAHMATH,
AGED ABOUT 52 YEARS,
W/O.SULAIMAN, ASHIRWARD,
MAIN ROAD, PUTHIYANGAM AMSOM DESOM,
ALATHUR TALUK, PALAKKAD DISTRICT,
PIN - 678 541.
2 DAMODHARAN,
S/O.LATE INDIRA, AGED ABOUT 59 YEARS, RESIDING
AT B2 ASAWARI CHS,
SECTOR 10, SHANTI NAGAR,
MIRA ROAD, (EAST) THANE,
MUMBAI - 401 107.
3 DOLLY,
D/O.LATE INDIRA, AGED ABOUT 56 YEARS,
RESIDING AT B2 ASAWARI CHS,
SECTOR 10, SHANTI NAGAR,
MIRA ROAD, (EAST) THANE,
MUMBAI - 401 107.
4 SANKAR,
S/O.LATE INDIRA,
O.P.(C)No.1961/2020
-:2:-
AGED ABOUT 51 YEARS,
RESIDING AT B2 ASAWARI CHS,
SECTOR 10, SHANTI NAGAR,
MIRA ROAD, (EAST) THANE,
MUMBAI - 401 107.
5 SARASWATHI,
AGED ABOUT 80 YEARS,
W/O.LATE GOVINDANKUTTY, GREEN WOOD,
NERUL, MUMBAI - 400 706.
6 GEETHA,
AGED ABOUT 49 YEARS,
D/O.LATE GOVINDANKUTTY,
GREEN WOOD, NERUL,
MUMBAI, PIN-400 706.
7 MADHU VADAKKEPATT,
AGED ABOUT 50 YEARS,
S/O.LATE BALAKRISHNAN,
MANGAT HOUSE, BEHIND CIVIL STATION,
PALAKKAD, PIN -678 001.
8 ARAVINDAN RAGHU,
AGED ABOUT 21 YEARS,
S/O.LATE RAGHU,
RESIDING AT MANGATTU HOUSE,
BEHIND CIVIL STATION,
PALAKKAD, PIN - 678 543.
9 K.C.GOPI,
AGED 55 YEARS,
S/O.ACHUTHAN NAIR,
RESIDING AT KONDATHU HOUSE, CHERUNGOTTUKALAM,
KAVASSERY AMSOM AND POST,
ALATHUR TALUK, PALAKKAD,
PIN - 678 543.
10 RETIRED JUSTICE CHETTOOR SANKARAN NAIR,
AGED 88 YEARS,
S/O.LATE CHANTHU MENON,
RESIDING AT NEW CHANDRANAGAR COLONY,
PALAKKAD,
PIN - 678 007.
11 PRIYADHARSINI CHETTOOR,
AGED 48 YEARS,
D/O. RETIRED JUSTICE CHETTOOR SANKARAN NAIR,
RESIDING AT NEW CHANDRANAGAR COLONY,
O.P.(C)No.1961/2020
-:3:-
PALAKKAD,
PIN - 678 007.
R10-11 BY ADV. SRI.MILLU DANDAPANI
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON
18.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(C)No.1961/2020
-:4:-
Dated this the 18th day of March,2021
J U D G M E N T
The first plaintiff in O.S.No.322/2015 on the
file of Munsiff Court, Alathur, who is the first
respondent in the Final Decree Interlocutory
Application[F.D.I.A.No.1867/2018], challenges
Exts.P7 and P11 orders passed by the final decree
court. The contesting respondents in this matter
are respondent Nos.10 and 11 who are respondent
Nos.11 and 12 in the final decree proceedings.
2. A preliminary decree for partition was
passed on 28.02.2018 wherein the court below
/16 share to the first plaintiff in the
/16 to the share of the
predecessor-in-interest of respondent Nos.11 and
12 and 4
/16 to the share of the 10th defendant who
is the final decree applicant. Some of the sharers
/16 in the suit property which has a
total extent of 45.69 cents and a tarwad building.
3. The final decree court deputed a
commission to divide the property by metes and
bounds in terms of preliminary decree. By the
interim report dated 27.11.2019, the Advocate
Commissioner submitted that the tarwad house which
O.P.(C)No.1961/2020
is very old and dilapidated and situated in the
middle of property causes inconvenience to
equitable partition of the property and therefore
it is liable to be pulled down for which conduct
of sale of building in auction among the sharers
was necessary. A draft notification containing
conditions for sale of the building was submitted
before the court. On the basis of the interim
report and plan and also the draft sale
conditions, the court below passed impugned
Exts.P7 and P11 orders permitting auction and
demolition of the building.
4. The orders reveal that demolition of
building was permitted as it was essential for
effecting equitable partition of the suit property
among the sharers.
5. In fact, the petitioner had filed
objection to the interim report and plan as well
as final decree application submitting that the
tarwad building to which she has sentimental
attachment should be kept intact and allotted to
her share. According to her, the situation of the
building does not affect the equitable partition
of the property. The contention raised by the
O.P.(C)No.1961/2020
petitioner was rejected by the court below by the
impugned orders and the building was ordered to be
put up for sale in auction.
6. It seems that none of the sharers
including respondent Nos.10 and 11 herein objected
to interim report and plan.
7. I heard the learned counsel appearing for
the petitioner and respondent Nos.10 and 11 in
this original petition.
8. The final decree applicant, who is the
first respondent herein does not seem to be
aggrieved by the impugned orders. Similarly,
respondent No.10 herein filed a counter statement
only supporting the impugned orders. Respondent
Nos.10 and 11 are legal representatives of the
transposed second plaintiff in the original suit
and second respondent in the final decree
application who died in the course of the final
decree proceedings.
9. The learned counsel for the petitioner
submits that the preliminary decree dated
28.02.2018 itself is under challenge in
R.S.A.No.202/2020 which is pending on the file of
this Court and therefore, the impugned orders
O.P.(C)No.1961/2020
passed by the final decree court were illegal.
This argument does not appear to be sound since
R.S.A.No.202/2020 is a delayed appeal which is yet
to be admitted to file. Therefore, there is no
legal inhibition for the final decree court to go
ahead with proceedings before it. What could at
the most be canvassed by the petitioner is that
whatever decision taken in the final decree
proceedings will be subject to the final result of
R.S.A.No.202/2020.
10. The second contention is that the share
plots proposed in the plan and interim report are
not in accordance with preliminary decree and
equitable distribution of the shares could be made
without disturbing existence of the building. In
short, the submission is that she desires to have
the building allotted to her share.
11. The Advocate Commissioner noted that a
road is situated abutting the eastern side of the
entire suit land and therefore he proposed to
divide the property into four equal plots such as
'A', 'B', 'C' and 'D' as shown in the plan. It is
pointed out that the line dividing 'B' and 'C'
plots passes through the middle of the
O.P.(C)No.1961/2020
tarwadbuilding and therefore according to the
Advocate Commissioner, without the building being
pulled down, the proposed plots cannot be
demarcated.
12. In the normal course, a court passing a
final decree proceedings is to allot the building
in the property to the sharers as the case may be
and order value of the building to be shared among
other sharers. Of course, in a case where
situation of the building is such that it affects
the equitable partition of the land among the
sharers, court may order demolition of the
building, if reasons are convincing and
circumstances so warrant, for which auction of
building may be permitted among the sharers or
public. The building can be demolished and removed
with the consent of all also.
13. But in this case, the petitioner has not
consented for demolition of the house. Her
contention is that she has sentimental attachment
to the tarwad house and it requires to be
preserved for which she is ready to take the
building to her share.
14. The learned counsel for the petitioner
O.P.(C)No.1961/2020
points out that the interim report and plan do not
disclose the plinth area of the building. In my
opinion also, the Advocate Commissioner should
have reported to the court the area of the
building. If petitioner's share plot is spacious
enough to contain the building as a whole, no
doubt the structure could be saved and her
interest in the building could be protected.
15. The learned counsel for the respondents
10 and 11 submits that the petitioner's share is
too small enough to take in the building structure
and without the building being pulled down,
equitable partition is not possible. In my
opinion, this issue cannot be resolved without the
measurements as to the area of the building being
placed on record.
16. In case building is not capable of being
allocated to the petitioner's share having regard
to the lesser extent of her share, it may be
futile for her to contend that the tarwad building
shall be maintained at any cost, if other sharers
are not willing to have it retained. If other
sharers do not need the building to exist, then
there cannot be any legal objection to the
O.P.(C)No.1961/2020
structure being pulled down and removed since the
claim of the petitioner cannot exceed beyond the
limited right to get proportionate share value of
building and nothing more.
17. After hearing the submissions made by
the learned counsel appearing on either side, I am
of the opinion that the court below before passing
the impugned order should have examined the
legality of claim raised by the petitioner for
allotment of the building to her share. This
aspect could be decided only if the area or the
extent of the building is brought out by taking
measurements of the building in the property. The
interim report as it stands now cannot help a
decision in this respect.
18. The re-inspection of the property and
ascertainment of extent of building alone will
help the court identify the plots which can
conveniently contain the building. It is
significant to note that the Advocate Commissioner
before proposing for sale of the building in
auction should have sought to ascertain the
consensus among the sharers, if any, and reported
the same to court. The fact that the petitioner
O.P.(C)No.1961/2020
alone chose to object the interim report and plan
is no reason to draw an inference that all the
sharers consented for demolition of the building
and sale in auction.
19. I am of the opinion that the matter in
issue requires to be reconsidered in the light of
additional report to be submitted by the Advocate
Commissioner for which Exts.P7 and P11 orders are
to be interfered with.
20. The learned counsel for the respondent
Nos.10 and 11 submitted that they do not lay any
claim for share value of building and are prepared
to forego the amount of owelty also. It is
submitted that the concern of respondents 10 and
11 is that on account of the nature of dispute
raised by the petitioner and delayed adjudication
thereon, the final decree proceedings should not
get stalled. It was pointed out that 'A' schedule
delineated in the plan attached to the interim
report is proposed to the share of respondents 10
and 11 and it was further submitted before me that
the said plot may be allotted to them.
21. There is nothing on record which reveals
that plot 'A' was proposed to be allotted to these
O.P.(C)No.1961/2020
respondents. According to me, this is a matter to
be decided in the final decree proceeding by the
court below after hearing parties and having due
regard to the question of equitability of
partition. This Court cannot call upon the court
below to pass final decree allotting 'A' schedule
plot to respondent Nos.10 and 11 at this stage of
the proceedings.
In the result, this original petition is
allowed setting aside Exts.P7 and P11 orders. The
court below is called upon to depute an Advocate
Commissioner to report the actual area of the
building situated in the decree schedule property
and decide upon the claim made by the petitioner
for allotment of building to her share in
accordance with law. If her claim fails and court
below is satisfied that lie of the building will
affect equitable partition of the property, it may
permit demolition and sale of the building in
auction as now ordered and distribute the value of
the building among the sharers in accordance with
law. It is further directed that final decree
proceeding shall be disposed of within a period of
three months from the date of receipt of a
O.P.(C)No.1961/2020
certified copy of this judgment.
All pending interlocutory applications will
stand closed.
Sd/-
T.V.ANILKUMAR,JUDGE
DST //True copy/
P.A.To Judge
O.P.(C)No.1961/2020
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE F.D.I.A.NO.1867/2018
IN O.S.NO.322 OF 2015 FILED BY THE 1ST
RESPONDENT HEREIN BEFORE THE HON'BLE
MUNSIFF COURT, ALATHUR DATED
12/09/2018.
EXHIBIT P2 TRUE COPY OF THE INTERIM COMMISSION
REPORT FILED BY THE ADVOCATE
COMMISSIONER DATED 27/11/2019 BEFORE
THE HON'BLE MUNSIFF COURT, ALATHUR.
EXHIBIT P3 TRUE COPY OF IA NO.268 OF 2020 IN
F.D.I.A.NO.1867/2018 IN O.S.NO.322 OF
2015 FILED BY THE 1ST RESPONDENT HEREIN
BEFORE THE HON'BLE MUNSIFF COURT,
ALATHUR DATED 03/02/2020.
EXHIBIT P4 TRUE COPY OF THE OBJECTION TO THE
INTERIM COMMISSION REPORT FILED BY
PETITIONER DATED 29/08/2020 BEFORE THE
HON'BLE MUNSIFF COURT, ALATHUR.
EXHIBIT P5 TRUE COPY OF THE OBJECTION TO EXHIBIT
P1 FILED BY PETITIONER DATED 29/08/2020
BEFORE THE HON'BLE MUNSIFF COURT,
ALATHUR.
EXHIBIT P6 TRUE COPY OF THE SALE CONDITION
STATEMENT DATED 22/01/2020 FILED BY
ADVOCATE COMMISSIONER BEFORE OF THE
HON'BLE MUNSIFF COURT, ALATHUR.
EXHIBIT P7 TRUE COPY OF ORDER DATED 10/08/2020 IN
F.D.I.A.NO.1867/2018 IN O.S.NO.322 OF
2015 BY THE HON'BLE MUNSIFF COURT,
ALATHUR.
EXHIBIT P8 TRUE COPY OF THE OBJECTION TO THE
INTERIM COMMISSION REPORT FILED BY THE
PETITIONER DATED 13/10/2020 BEFORE THE
HON'BLE MUNSIFF COURT, ALATHUR.
EXHIBIT P9 TRUE COPY OF THE SALE CONDITION
STATEMENT DATED 22/01/2020 FILED BY
O.P.(C)No.1961/2020
ADVOCATE COMMISSIONER BEFORE OF THE
HON'BLE MUNSIFF COURT, ALATHUR.
EXHIBIT P10 TRUE COPY OF THE INTERIM COMMISSION
REPORT FILED BY THE ADVOCATE
COMMISSIONER DATED 16/12/2020 BEFORE
THE HON'BLE MUNSIFF COURT, ALATHUR.
EXHIBIT P11 TRUE COPY OF THE ORDER DATED 30/11/2020
IN F.D.I.A.NO.1867/2018 IN O.S.NO.322
OF 2015 BY THE HON'BLE MUNSIFF COURT,
ALATHUR.
RESPONDENTS' EXHIBITS: NIL
