Janardhanan Pillai B. v. R. Raji and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **THURSDAY, THE 27TH DAY OF JUNE 2013/6TH ASHADHA, 1935** **SA.No. 239 of 2003 ( ) ----------------------AS 1/2000 of ADDL.DISTRICT COURT, ALAPPUZHA OS 255/1996 of PRINCIPAL SUB COURT, ALAPPUZHA** **--------------** **APPELLANT(S)/1ST RESPONDENT/1ST DEFENDANT :-** **-----------------------------------------------** **JANARDHANAN PILLAI.B., S/O.P.R.PILLAI AGED 56, MADAPARAMBIL HOUSE, MUNICIPAL OFFICE WARD, ALAPPUZHA MURI, ALAPPUZHA VILLAGE.** - **BY ADVS.SRI.V.RAJENDRAN (PERUMBAVOOR)** **SRI.GEORGE VARGHESE KIZHAKKAMBALAM** **RESPONDENTS 1 TO 3/APPELLANTS 1 TO 3/PLAINTIFFS 1 TO 3/ 4TH RESPONDENT/2ND RESPONDENT/2ND DEFENDANT/RESPONDENTS 5 TO 7/RESPONDENTS 3 TO 5/DEFENDANTS 3 TO 5 :-** **--------------------------------------------------------------** **1. R.RAJI, D/O.SADASIVAN, RAMA MANDIRAM, THEKKANARAYADU MURI, ARYADU THEKKU VILLAGE, ALAPPUZHA.** **2. ARUN, S/O.SADASIVAN, RAMA MANDIRAM, THEKKAKARAYADU MURI, ARYADU THEKKU VILLAGE, ALAPPUZHA.** **3. SANGI @ SASIKUMAR, S/O.RAMANKUTTY, LAILA BHAVAN, PUTHENANGADY WARD, ALAPPUZHA MURI, ALAPPUZHA VILLAGE.** **4. ANANTHA SHENOY GOPALA SHENOY, PUTHEN MADOM, KIZHAKKE NADA, ANANTHA NARAYANAPURAM, ALAPPUZHA.** **5. ANANTHA SHENOY LAKSHMANA SHENOY, PUTHEN MADOM, KIZHAKKE NADA, ANANTHANARAYANAPURAM, ALAPPUZHA.** **6. SANKARI AMMAL @ RUGMINI AMMAL (DIED, LRs RECORDED), W/O.ANANTHA SHENOY, PUTHEN MADOM, KIZHAKKE NADA, ANANTHANARAYANAPURAM, ALAPPUZHA.** ## **SA.No. 239 of 2003** **7. GIRIRAMA SHENOY ANANTHA SHENOY, PUTHEN MADOM, KIZHAKKE NADA, ANANTHANARAYANAPURAM, ALAPPUZHA.** **IT IS RECORDED THAT R6 IS DIED AND R4, R5 AND R7 ARE HER LEGAL HEIRS AS PER ORDER DATED 28.2.2013 IN I.A.No.667/2013 AND MEMO DATED 20.9.2011.** **R1-R3 BY ADV. SRI.R.AZAD BABU** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 2706-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **jvt** ## **N.K.BALAKRISHNAN, J. --------------------------------** ## **S. A. No.239 of 2003** ## **-----------------------------Dated this the 27[th] day of June 2013** ## **J U D G M E N T** This Second Appeal is filed by the first defendant. The suit was to set aside the sale so far as it relates to the undivided ¼ share of the plaintiff. It was found in the earlier suit that the plaintiff in the present suit was totally exonerated and so, his share in the property, which was subsequently put up for sale for realisation of the money decreed in the earlier suit could not have been sold. Though an application was filed by the plaintiffs to set aside the sale on the ground that they have got fractional right in the said property, that petition was dismissed. Hence, the present suit was filed to set aside the sale. 2. The appellant herein had entered into a sale agreement in respect of the plaint schedule property measuring 2.2 Ares which is roughly 5½ cents. Rs.35,000/was stated to have been paid as part of the consideration. The sale did not materialise. Suit was filed for return of S. A. No.239 of 2003 -: 2 :- money. That suit was decreed. For realisation of the amount, the plaint schedule property was brought to sale. Plaintiff purchased the property in the court auction. Thereafter a suit for declaration was filed as O.S.289/1983. It was later found that though the entire property including the undivided share of the 5[th] defendant was put up for sale and the sale was effected, in fact the 5[th] defendant was not liable to pay any amount and so, the sale so far as it relates to the right of the 5[th] defendant was found to be not legal. Therefore, the undivided 1/5 share of the 5[th] defendant was not sold. A suit was filed by the defendants including the 5[th] defendant contending that the sale and execution of the decree is void, illegal etc. That contention was resisted by the plaintiff in O.S.289/1983, who is the first defendant in the present suit, that is; O.S.255/1996. After trial, the trial court found that the declaration sought for by the plaintiffs in O.S.255/96 cannot be granted but at the same time since the auction purchaser had obtained only 3/4 share. Since 1/4 share of the 5[th] defendant remained unsold, a preliminary decree for partition was passed. That was challenged before the learned S. A. No.239 of 2003 -: 3 :- District Judge. The appellate court found that the lower court was justified in moulding the relief in allowing partition and separate possession of 1/4 share of the plaintiffs/respondents herein over the suit item. But, ultimately the lower appellate court, in order to meet the ends of justice, directed the appellants therein to pay an additional sum of Rs.50,000/- to the respondent therein (the appellant herein), over and above the decree amount and interest as decreed in O.S.No.289/1983. This decree is now under challenge in this Second Appeal. 3. The learned counsel for the appellant would submit that a sum of Rs.35,000/- was paid by the appellant in 1983 in order to purchase the entire plaint schedule property and that only because the Predecessor-in-interest of the respondents was in occupation of the building the sale did not materialise and that had Rs.35,000/- in 1983 been invested in some other land, the value of the same would have now become worth several lakhs if not a Crore. 4. It is vehemently argued by the learned counsel for the appellant that though the Subordinate Judge was justified ## S. A. No.239 of 2003 -: 4 :- in moulding the relief ordering partition of the plaint schedule property into four equal shares and to allow 3/4 shares to the appellant herein and the remaining 1/4 share to the 5[th] defendant, the lower appellate court was not justified in holding that it would do justice if the appellant is permitted to realise the decree amount with interest and costs plus a further sum of Rs.50,000/- which is only a paltry amount as it stands today. 5. The following substantial questions of law has ben re-framed for consideration : - (i) Is the lower appellate court justified in allowing allotment of the entire property to the respondents ordering only Rs.50,000/- in lieu of the appellant's ¾ share in the plaint schedule property ? - (ii)Did the lower appellate court go wrong in applying the principle laid down by the Honourable Supreme Court in **Ghanshyamdas and another** v. **Om Prakash and another** [AIR 1994 SC 1292] ? 6. The learned appellate Judge has relied upon the decision of the Supreme Court in **Ghanshyamdas and another** v. **Om Prakash and another** [AIR 1994 SC 1292]. S. A. No.239 of 2003 -: 5 :- That was a case where the Honourable Supreme Court directed payment of Rs.50,000/- in lieu of the share of the other party so as to direct recovery of possession thereof. Therefore, according to the lower appellate court applying the same principle equity can be worked out by directing the respondents herein to pay to the appellant an additional sum of Rs.50,000/- over and above the decree amount, costs, interest etc. as decreed in O.S.289/1983. 7. The learned counsel for the appellant would submit that the fact that the money (Rs.35,000/-) was paid in 1983 for purchase of the property should not have been overlooked by the lower appellate court. In 1983 Rs.35,000/- was paid for purchasing the plaint schedule property measuring about 5½ cents and the building situated thereon and as such, it would be clear as to the money value as it stood then. But the lower appellate court has simply allowed an additional sum of Rs.50,000/- to compensate the appellant. It is submitted that grave injustice has been done to the appellant. The learned counsel for the respondents would submit that even in 1983 when the agreement was entered into by the appellant for the S. A. No.239 of 2003 -: 6 :- purchase of the property, Sadasivan, the father of the first plaintiff was in occupation of the building situated in that property and that was why the appellant did not venture to obtain the sale deed in respect of the said property. Therefore, according to the respondents it is a case where the appellant was well aware of the fact that the building situated in the plaint schedule property was in the occupation of deceased Sadasivan and so, it cannot be said that the appellant has suffered loss since it was because the appellant herein did not proceed to get the sale deed executed, he thought of getting back the amount paid by him as advance. The further fact that the right of the entire sharers was not put up for sale also should not have been overlooked by the appellant. 8. Be that as it may, the fact remains that the appellant has got 3/4 share in the entire land and building whereas the respondents, the legal heirs of Sadasivan have got only 1/4 share. The learned counsel for the appellant would submit that the Commissioner had inspected the property and found out a way as to how the building also can S. A. No.239 of 2003 -: 7 :- be divided and one portion can be allotted to the share of the respondents and so, there is no impracticability in causing division of the property so as to allot 1/4 share as the share of the respondents. But, the learned counsel for the respondents would submit it is a case where the respondents and their predecessor were in possession of the building and conducting printing business therein and so, if the building is caused to be divided in such a way as to allot only one and odd cent as the 1/4 share of the respondents that would work grave injustice and that it cannot be compensated in terms of money at all. It is in this connection, the learned counsel for the respondents submits that the lower appellate court has exercised the discretion correctly allotting the entire property and building to the respondents so as to avoid unnecessary controversies. 9. The decision in **Ghanshyamdas and another** v. **Om Prakash and another** [AIR 1994 SC 1292] was relied upon by the lower appellate court. It was a case where a money decree was obtained against one Balkishan and Lakshminarayan and in execution of that decree the suit S. A. No.239 of 2003 -: 8 :- house was attached and sold in court auction. Gian Chand purchased the said property for Rs.6,771/- and he executed a gift of the same in favour of respondents 1 and 2 in that case. Since Ghanshyamdas and Gokuldas (the original defendants) were relations they were permitted to occupy the southern side of the suit house. It was found that Ghanshyamdas was not a party to the civil suit and no decree was passed against him. The execution of the said decree resulting in court auction sale in favour of Gian Chand was not binding and therefore, with respect to his 1/2 share, no title did pass in favour of Gian Chand. It was also found that Gian Chand was only an ostensible purchaser, the sale consideration having been furnished by the judgment debtor Balkishan himself. Ultimately it was held by the Apex Court that, notwithstanding the fact that Jamnadas was not a party to the civil suit yet what came to be sold was the entire suit house as described in the sale proclamation. Gian Chand purchased the entire suit house for Rs.6,771/-. The sale certificate was issued. It was found that admittedly Jamnadas was the owner of half share, he being the joint purchaser along with S. A. No.239 of 2003 -: 9 :- Balkishan and Lakshminarayan, half share of the suit house came to be decreed in favour of Jamnadas. It was also found that the half share which belonged to Jamnadas could not have been sold in execution of a decree to which he was not a party. Thus taking note of the entire aspects, it was found that ends of justice would be met by directing payment of a sum of Rs.50,000/- by the appellant to the respondents in lieu of recovery of possession of the southern half share and that it would be in addition to the damages which have come to be awarded in favour of the respondents. Thus, the learned counsel for the respondents would submit that, that was a case where the appellant had only half share in the said property whereas the remaining half share was in the possession of the respondents. Though here, the appellant had 3/4 share in the property the fact that all through out late Sivadasan was in possession of the said property with the building thereon and that after the death of Sivadasan, the respondents are in possession of the same cannot be ignored. It is true that the appellant had spent Rs.35,000/- in 1983 itself at a time when he could have purchased a substantial S. A. No.239 of 2003 -: 10 :- landed property or building. But the learned counsel for the respondents would submit that late Sivadasan was in possession and that after his death the respondents are in possession of the same doing business for their livelihood and so that also may be taken into consideration to show equitable consideration towards the respondents. 10. Sri.Azad Babu, the learned counsel for the respondents would submit that if this Court is of the view that the amount of Rs.50,000/- ordered by the appellate court is a grossly inadequate, this Court may fix any additional amount that may be payable by the respondents and that the respondents would certainly pay such further sum as may be directed to be paid by this Court. 11. From what could be gathered from the submissions made by the learned counsel for the respondents, it appears that the plaint schedule property is situated in a commercially important locality. One cent of land in that locality would fetch more than Rs.6 or 7 lakhs, it is submitted. Hence, considering all the aspects, to do complete justice, I find that instead of directing payment of Rs.50,000/- and the decree S. A. No.239 of 2003 -: 11 :- amount with interest thereon, inclusive of other amount due, the respondents can be directed to pay a total sum of Rs.20,00,000/- (Rupees Twenty Lakhs only) to the plaintiff/appellant in lieu of the plaintiff's/appellant's share in the plaint schedule property. In the result, this SA is disposed of as stated below :- The entire plaint schedule property would stand allotted to the share of the respondents on condition that the respondents should pay to the plaintiff a sum of Rs.20,00,000/- (Rupees Twenty Lakhs only) in lieu of the appellant's share in the plaint schedule property. On deposit of the said amount in court, a proper release deed shall be executed by the plaintiff/appellant in favour of the respondents. If the release deed is not executed, the same shall be got executed through court, the consideration whereof shall be the consideration amount as stated above. The respondents are granted three months time to deposit the amount. If the amount is not deposited within time (if extended, within the extended time) the decree for ## S. A. No.239 of 2003 -: 12 :- ## partition passed by the trial court will stand revived. The expense for preparation and execution of the release deed shall be borne by the parties equally. So far as the expenses to be borne by the appellant is concerned, the same shall be deducted from the amount deposited by the respondents, if the appellant so requests or the trial court finds it just and necessary. **Sd/N.K.BALAKRISHNAN, JUDGE.** Jvt The following corrections are made in the judgment dated 27.6.2013 in S.A.No.239/2003, vide order in I.A.No.2250/2013 in S.A.No.239/2013 : The word “respondents” occurring at 5 places in the operative portion of the judgment is corrected as “respondents 1 to 3”; The words “an additional sum of Rs.50,000/- to the respondent therein (the appellant herein), over and above” occurring in paragraph 2 at page 3 of the judgment are deleted. The words “plus a further sum of Rs.50,000/- which is only ## S. A. No.239 of 2003 -: 13 :- a paltry amount as it stands today” occurring in paragraph 4 at page 4 of the judgment are deleted. The words “an additional sum of Rs.50,000/- over and above” occurring in paragraph 6 at page 5 of the judgment are deleted. The words and figure “of Rs.50,000/-” occurring in paragraph 10 at page 10 of the judgment are deleted. The figure and word “Rs.50,000/- and“ occurring in paragraph 11 at page 10 of the judgment are deleted. The last sentence of the last paragraph of the judgment viz. “so far as the expenses to be borne by the appellant is concerned, the same shall be deducted from the amount deposited by the respondents, if the appellant so requests or the trial court finds it just and necessary” are deleted and substituted with the words “The amount deposited by the respondents 1 to 3 in O.S.No.289/1983 of Sub Court, Alappuzha pursuant to judgment dated 23.11.2002 in A.S.No.1 of 2000 of the Additional District Court, Alappuzha may be returned to respondents 1 to 3 herein. **Sd/Registrar (Judicial)**