Kerala High Court
Sethulakshmi Kunjamma vs Vijayalekshmi Kunjamma on 1 July, 2022
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
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
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
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
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
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
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
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
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.
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
