Chandrika v. V. Radhakrishnan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE A.M.BABU** **TUESDAY ,THE 22ND DAY OF JANUARY 2019 / 2ND MAGHA, 1940** **Mat.Appeal.No. 503 of 2014** **OS 360/2000 of FAMILY COURT,THIRUVANANTHAPURAM** ## **APPELLANT/DEFENDANT** **CHANDRIKA AGED 45 YEARS D/O.CHINTHAMANI,T C 46/932,S.M LACK, POONTHURA,THIRUVANANTHAPURAM** **BY ADVS. SRI.MVS.NAMBOOTHIRY SMT.KAVERY S THAMPI** ## **RESPONDENT/PLAINTIFF** **V. RADHAKRISHNAN, AGED 52 YEARS, S/O.VELAYUDHAN, RESIDING AT PARAPPACHANVILA MUDUMBIL VEEDU,KALADY,KARAMANA PO, PIN 695 002 THIRUVANANTHAPURAM** **BY ADVS. SRI.T.K.SASIKUMAR SRI.N.VIMALAN** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 22.01.2019, ALONG WITH Mat.Appeal.949/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.A.503/14 & 949/17** 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE A.M.BABU TUESDAY ,THE 22ND DAY OF JANUARY 2019 / 2ND MAGHA, 1940** **Mat.Appeal.No. 949 of 2017** **OS 360/2000 of FAMILY COURT,THIRUVANANTHAPURAM** ## **APPELLANT/COUNTER PETITIONER** **CHANDRIKA AGED 54 YEARS,D/O CHINTHAMANI, T.C.46/932,S.M.LACK,POONITHURA, THIRUVANANTHAPURAM.** **BY ADVS. SRI.MVS.NAMBOOTHIRY SMT.KAVERY S THAMPI** ## **RESPONDENT/PETITIONER** **V. RADHAKRISHNAN, S/O VELAYUDHAN,RESIDING AT PARAPPACHANVILA MUDUMBIL VEEDU, KALADY, KARAMANA (P.O.), THIRUVANANTHAPURAM. 695002.** **BY ADV. SRI.N.VIMALAN** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 22.01.2019, ALONG WITH Mat.Appeal.503/2014 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.A.503/14 & 949/17** 3 ## JUDGMENT Shaffique, J. - 1.Mat.Appeal 503/2014 has been filed against O.S.360/2000, a Suit for partition, before the Family Court, Thiruvananthapuram. The defendant is the appellant. The same appellant has filed an I.A.2577/2013 in O.S.360/2000 being the final decree passed by the same Court. 2.The short facts in the case are as under :- The parties to the Suit got married on 6.11.1988. Two children were born in the wedlock. Matrimonial issues had arisen between the parties. The Suit was filed by the husband seeking partition of a property which was purchased in the joint names of the petitioner and the defendant. A house was also constructed in the property. The wife/appellant took up a contention that the money spent for purchasing the property was mobilised by selling her gold ornaments and therefore she is entitled for the **M.A.503/14 & 949/17** 4 entire property and that the property is not partible. 3.She had also filed O.P.261/2006 seeking return of gold ornaments and the money which was given to her as her parental share. O.P.568/1999 was filed by the husband for divorce. All the cases were jointly filed. The husband was examined as PW1, wife was examined as RW1 and the brother of her husband was examined as RW2. Exts.A1 to A9, B1 to B3 and C1 and C3 are the documents that were marked in the case. The Family Court after evaluating the contentions of the parties and the evidence adduced in the matter, arrived at a finding that there is no evidence to prove that the entire amount for purchasing the property was expended by the appellant and accordingly granted a decree for partition of the property. Before this Court the learned counsel for the appellant reiterated the contention that her gold ornaments were sold for the purpose of purchasing the property. The husband had no income during the relevant time. **M.A.503/14 & 949/17** 5 He got money only in the year 1987. The property was purchased by spending an amount of Rs 60,000/- and he did not adduce any evidence to prove that he was in possession of such an amount at the relevant point of time. 4.In evidence PW1 deposed that the entire amount spent for purchasing the property was from his earnings. The aforesaid evidence was attempted to be controverted by the appellant by examining RW2, the brother of her husband. He supported the appellant. However, the Family Court after considering the entire evidence, disbelieved the version of the appellant and arrived at a finding that there is no material to indicate that the appellant was in possession of such quantity of gold ornaments which was utilized for the purpose of purchasing the property. That apart, O.P.261/2006 filed for return of gold ornaments was also dismissed by the trial Court on a finding that the appellant was unable to prove that she had such quantity of gold ornaments. **M.A.503/14 & 949/17** 6 This was basically on the premise that she filed a complaint before the Women's Commission as Ext.A9 wherein she only stated that she was having 35 sovereigns of gold ornaments and Rs 50,000/- was paid, whereas in O.P.261/2006 she took up a contention that she was given 40 sovereigns of gold ornaments and Rs 1,00,000/was paid as her parental share. The Court below therefore disbelieved the version of the appellant. 5.Having regard to the fact that the appellant had taken contradictory stand before the Womens' Commission and later before Court, the Family Court disbelieved the version of the appellant. With reference to the aforesaid finding, we do not think that the Family Court had committed any error. The Family Court was justified in concluding that the property was purchased with the funds belonging to both the parties and finally in the absence of any proof to show that the entire amount was expended by the wife, the petition for partition was **M.A.503/14 & 949/17** 7 ## allowed as prayed for by the petitioner. 6.Coming to the final decree proceedings which is the subject matter of Mat.Appeal.949/2017, the contention of the appellant is that there is a disproportion in the partition of the property. According to her, she has constructed a building in the property and therefore she should not be mulcted with the liability. During the final decree proceedings, an Advocate Commissioner was deputed. Ext.C1 is the report and Ext.C1(a) is the plan. The Advocate Commissioner in the report observed that though in the preliminary decree the property is scheduled as 15 cents, on measurement it comes to only 11.66 cents. No equity or reservation has been made in the preliminary decree as far as the appellant is concerned. In fact as held by this Court in Pathumma and Others v. Muhammed (2015 (1) KHC 756), the appellant had not sought for any reservation in respect of the building whereas she claimed the entire property as such. When **M.A.503/14 & 949/17** 8 the said contention is negatived by preliminary decree proceedings, it was not open for the appellant to claim any reservation during final decree. Paragraph 6 of the judgment is relevant which reads as under : “The concept of reservation of property involved in a suit for partition in favour of a sharer ( or a co-owner, as the case may be) is to be understood clearly. It amounts to exclusion of certain property from the partible assets. In a partition suit, at the preliminary decree stage, the court is called up to adjudicate the partibility of 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 an item from partition, the sharer/co-owner claiming such a right will have to establish his exclusive right over the property. 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 gets consent from other co-owners, he cannot effect improvements in the property so as to claim reservation of the asset to him at the time of division. If he effects improvements in a co-ownership property, the law presumes that it is for the benefit of all and therefore, he cannot claim reservation of the same to the exclusion of others. So much so, the burden is purely on the person making a claim for reservation that he effected improvements in the coownership property with the consent of others, either expressly or impliedly, agreeing to reserve the same to him at the time of division. The court adjudicating the rights of the parties will have to consider at the preliminary decree stage whether a particular property, over which one of the parties claim reservation, is **M.A.503/14 & 949/17** 9 available for partition or not. If a party claiming reservation of an item of property included in the suit proves that the property is not available for partition, the court at the stage of preliminary decree will have to consider the plea and if it is found allowable, the item should be discounted from the list of partible property. The adjudication regarding reservation of an item in favour of a co-owner or in other words, the exclusion of a property from partition, is a matter based purely on legal principles. Merely on an equitable principle, such an adjudication cannot be done. If one sharer/co-owner raises a contention that a particular property or any structure thereon is to be allotted to him for his use and it is unlikely to cause difficulties to other sharers, that plea is based on equity and the court will have to consider whether the request of that party can be allowed without affecting the legal or equitable rights of other sharers/co-owners. Well settled is the principle that a court dealing with a partition suit can decide not only legal rights arising in the case, but also equitable principles for doing complete justice between the parties. In a claim for reservation, the burden is on the person making the claim to establish that for valid reasons the property is to be excluded from the partible assets. The essential distinction between the claim for reservation and claim based on equity for allotting a particular portion of the property or a structure thereon to a sharer lies in the fact that if the claim for reservation is proved, it results in exclusion of the property from partition and 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 assets. That apart, the claim for reservation shall be considered while passing a preliminary decree and the equities regarding allotment may be relegated to the final decree proceedings. Viewing from this angle, I am of the view that the observation by the trial court and the lower appellate court that the **M.A.503/14 & 949/17** 10 respondent is entitled to reservation of the house in dispute is legally not correct and proper. At the most, he can only claim an equitable relief of allotting that portion of the land along with the house to his share after valuing the entire assets. 7.The Advocate Commissioner therefore reported that the total value of the property available for partition would come to Rs 66,45,060/- and the value of the building as assessed by the Engineer is Rs 9,50,000/-. The value of one share was found to be Rs 37,97,530/-. The property was therefore divided into two plots. The value of Plot No.1 will come to Rs 38,00,000/- of which the land value will be Rs 28,50,000/- and the building value is Rs 9,50,000/-. The said plot is allotted to the appellant. The total value of the 2[nd] plot comes to Rs 37,95,060/-. It is stated that the person to whom plot No.1 was allotted has to pay Rs 2470/- to the other sharer. The Court below therefore found that plot No.1, in which the building is situated, can be allotted to the appellant. Accordingly final decree proceedings were closed. The learned counsel **M.A.503/14 & 949/17** 11 for the appellant submits that plot No.1 is having an extent of 2.02 Ares only (5 cents). Whereas plot No.2 which is not allotted to the respondent is having an extent of 2.70 Ares. This difference had arisen on account of the fact that plot No.1 was allotted to the share of the plaintiff and therefore in order to have an equal distribution of the assets, there is difference in the extent of property. We do not find any error being committed by the Family Court especially insofar as no reservation has been claimed by the appellant. We do not find any ground to interfere with the judgment of the Family Court. Mat.Appeal is accordingly dismissed. Sd/- A.M.SHAFFIQUE Judge Sd/- A.M.BABU Judge Mrcs/22.1.19 True copy P.S.To Judge