Kerala High Court
Sasindraraj K vs Baby Jamuna on 5 June, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
2025:KER:39136
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
THURSDAY, THE 5TH DAY OF JUNE 2025 / 15TH JYAISHTA, 1947
RFA NO. 259 OF 2024
AGAINST THE ORDER DATED 02.07.2024 IN OS NO.175 OF 2012 OF
SUB COURT, QUILANDY
APPELLANT/1ST RESPONDENT/1ST DEFENDANT:
SASINDRARAJ K
AGED 61 YEARS
S/O.GOVINDAN, KALASANKANDY VEEDU, KATTILPEEDIKA
P.O., VENGALAM, THIRUVANGOOR AMSOM, VENGALAM
DESOM, KOYILANDI TALUK, KOZHIKODE DISTRICT,
PIN - 673303
BY ADV SHRI.M.V.ANANDAN
RESPONDENTS/PLAINTIFFS/2ND DEFENDANT:
1 BABY JAMUNA
D/O.GOVINDAN, W/O.JANARDHANAN, 'SAMUDRA',
OORALUNGAL AMSOM DEAOM, MADAPPALLI COLLEGE P.O.,
VADAKARA TALUK, REP. BY POWER OF ATTORNEY HOLDER,
SISTER BABY JASEENA, D/O.GOVINDAN, W/O.AJITHKUMAR,
MARUTHOOR HOUSE, AALUMKADAVU P.O., KARUNAGAPPILLY
TALUK, KOLLAM DISTRICT,, PIN - 690573
2025:KER:39136
R.F.A. No.259 of 2024
-: 2 :-
2 BABY JASEENA
D/O.GOVINDAN, W/O.AJITHKUMAR, MARUTHUR HOUSE,
AALUMKADAVU, KARUNAGAPPILLY TALUK,
KOLLAM DISTRICT, PIN - 690573
3 ABOOBACKER
S/O.KHADAR, KOODATHIL VEEDU, VENGALAM, ELATHUR
VIA, KOZHIKODE TALUK, KOZHIKODE DISTRICT,
PIN - 673303
BY ADVS.
SRI.K.M.JAMALUDHEEN
SMT.LATHA PRABHAKARAN
SMT.SAINA MARIYAM BABY
SRI.N.NANDAKUMARA MENON (SR.)
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
05.06.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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SATHISH NINAN & P. KRISHNA KUMAR, JJ.
= = = = = = = = = = = = = = = = = =
R.F.A.No.259 of 2024
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Dated this the 5th day of June, 2025
JUDGMENT
Sathish Ninan, J.
The final decree in a suit for partition is under
challenge by the 1st defendant.
2. The challenge in this appeal is against the
acceptability of the Commissioner's report and plan. The
final decree is passed in accordance with such report
and plan.
3. We have heard Sri.M.V. Anandan, the learned
counsel on behalf of the appellant and Sri.Nandakumara
Menon, the learned Senior Counsel on behalf of the
respondents.
4. The appellant's challenge to the
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Commissioner's report and plan are two fold; (i) that the
Commissioner did not take stock of the assets and
liabilities of the deceased parents before making
allotments; and (ii) the extent of the property to be
excluded from partition, that is, the property belonging
to the 2nd defendant is not correctly identified and
demarcated.
5. The preliminary decree passed on 16.06.2014
reads thus;
"That the suit be and the same is hereby ordered and decreed
preliminarily as follows;
That the property scheduled in plaint schedule No.2
property be partitioned into 3 shares and one such share
be allotted to each plaintiffs separately.
That the movable properties found mentioned in Exts.B20
and B21 documents be also partitioned into 3 equal
shares and one such share be allotted to the plaintiffs
separately.
That the timber found mentioned in Ext.C2 Commission
report be also partitioned into 3 and one. Such share each
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be allotted to the respective plaintiffs.
That the equities and reservations be decided in the final
decree stage.
That the plaintiffs or any of them be at liberty to file final
decree application for actually effecting partition.
That in deciding the area available for partition, the
property, if any, actually found vested with the second
defendant be exempted.
That the cost of effecting partition including present cost
of this suit come out of estate in proportion i.e. , plaintiffs
cost Rs.1,13,505/- [Rupees one lakh thirteen thousand
five hundred and five only).
That the suit be adjourned sine die."
Evidently, there is no direction in the preliminary
decree to ascertain the assets and liabilities of the
parents and include the same also while making division.
Hence, such contention was rightly turned down by the
trial court.
6. With regard to the property belonging to the
2nd defendant, which is to be excluded from partition,
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the relevant clause in the preliminary decree reads
thus;
"That in deciding the area available for partition, the property, if
any, actually found vested with the second defendant be exempted."
7. The 2nd defendant remained ex parte. He is
allegedly an auction purchaser, who had purchased a
portion of the entire property in discharge of a
liability of the predecessors. No documents relating to
the sale, including the sale certificate or other
related documents were produced so as to enable
demarcation and exclusion of the same. In the
Commissioner's plan, he has marked plots A1, B1 and C1
having a total extent of 55.5 cents as the property of
the 2nd defendant. Both sides are in unison that the
commissioner excluded such extent noticing indications
of separate possession, suggesting possession by the
second defendant. However, since the second defendant
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did not appear and make available any documents, the
commissioner has proceeded to make provisional allotment
of the same also to the parties.
8. The learned counsel for the appellant
submitted that the actual extent of the property
purchased by the 2nd defendant in the auction was only
47¼ cents and that, in its place, the Commissioner has
in fact allotted a larger extent of 55.5 cents. The
trial court noticed that, in the absence of any records
relating to the auction, the Commissioner was justified
in making allotments in the manner as shown in the plan.
The court has also noticed that the allotment has been
made in such a manner that, in the event of any future
disputes with the 2nd defendant, that could be settled
"swiftly and amicably". Such observation has been made
taking into consideration of the manner of allotment
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made. As noticed above, the preliminary decree directs
that "The property actually found vested with the 2 nd
defendant be exempted". Therefore we find the present
allotment made to be just and equitable.
9. If any excess land has been allotted to the 2 nd
defendant, it shall be open for the plaintiffs or the
1st defendant to have it recovered from the 2 nd defendant
in accordance with law. Needless to say that such
extent, if any recovered, shall enure to the benefit of
the plaintiffs and the 1 st defendant in the proportion
as declared in the preliminary decree. As noticed by the
trial court, since the 2 nd defendant has chosen not the
appear in the proceedings, this is the only practical
way in which the final decree could be passed with
regard to the property. We do not find any merits in the
appeal.
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Resultantly, the appeal fails and is dismissed. No
costs.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P. KRISHNA KUMAR
JUDGE
yd
