# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE T.R.RAVI**
**MONDAY, THE 21[ST] DAY OF AUGUST 2023 / 30TH SRAVANA, 1945**
**RSA NO. 477 OF 2023**
**AGAINST THE DECREE AND JUDGMENT DATED 24.02.2023 IN AS 85/2020 OF**
**ADDITIONAL DISTRICT COURT - V, KOZHIKODE**
**AGAINST THE DECREE AND JUDGMENT DATED 29.05.2020 IN OS 619/2016 OF**
**ADDITIONAL MUNSIFF COURT-II, KOZHIKODE**
## **APPELLANT/APPELLANT/DEFENDANT NO.11:**
**K.M. PREMAN, AGED 68 YEARS S/O K.M. KANDANKUTTY, KUNNUMMAL MANDODY HOUSE, CHERUVANNUR AMSOM DESOM, NEAR T.P. HOSPITAL, CHERUVANNUR P.O. KOZHIKODE- 673 631**
**BY ADVS. V.T.RAGHUNATH C.V.RAJALAKSHMI MANJU RAJAN**
## **RESPONDENTS/RESPONDENTS/PLAINTIFF AND DEFENDANT 1 TO 10:**
- **1 M.RAJAN AGED 74 YEARS, S/O K.M. KANDANKUTTY, BEYPORE AMSOM DESOM, KALA NIVAS, CHEMBAKA COLONY - II, BEYPORE ROAD, KOZHIKODE 673 015.**
**2 M.VIJAYAN AGED 76 YEARS, S/O K.M. KANDANKUTTY, EDAKKAT MEETHAL HOUSE, NELLIKKOD AMSOM, UMMALATHUR DESOM, UMMALATHUR THAZHAM, MEDICAL COLLEGE P.O, KOZHIKODE, 673 008**
**3 K.M SOMAN, AGED 66 YEARS, S/O K.M. KANDANKUTTY, MANDODY, BEYPORE AMSOM DESOM, NEAR CHEMBAKA HOUSING COLONY, B C. ROAD, KOZHIKODE- 673 015.**
**4 K. M . SOBHANA AGED 64 YEARS, D/O K.M. KANDANKUTTY, KALATHILTHODY HOUSE, PUTHIYANGADI AMSOM DESOM, ATHANIKKAL, WEST HILL P.O, KOZHIKODE- 673 005**
**RSA NO. 477 OF 2023**
**2**
|**5**|**K.T GANGADHARAN**|
|---|---|
||**AGED 84 YEARS, H/O LATE RAMANI, KUNNATH HOUSE,**|
||**BEYPORE AMSOM DESOM, B C. ROAD,**|
||**KOZHIKODE- PIN – 673 015**|
|**6**|**K. T. NISHANTH**|
||**AGED 45 YEARS**|
||**S/O LATE RAMANI, KUNNATH HOUSE,**|
||**BEYPORE AMSOM DESOM, B C. ROAD, BEYPORE,**|
||**KOZHIKODE, PIN – 673 015**|
|**7**|**K.T.NIDHIN**|
||**AGED 38 YEARS**|
||**S/O LATE RAMANI, KUNNATH HOUSE,**|
||**BEYPORE AMSOM DESOM, B C. ROAD, BEYPORE,**|
||**KOZHIKODE, PIN – 673 015**|
|**8**|**K.T.NAMITHA**|
||**AGED 41 YEARS**|
||**D/O LATE RAMANI, KUNNATH HOUSE,**|
||**BEYPORE AMSOM DESOM, B C. ROAD, BEYPORE,**|
||**KOZHIKODE, PIN – 673 015**|
|**9**|**V GIREESH**|
||**AGED 50 YEARS, S/O LATE BABY, VALIYADATH HOUSE,**|
||**PANNIYANKARA AMSOM DESOM, 21/309 C,**|
||**KALLAYI, KOZHIKODE, PIN – 673 003**|
|**10**|**V RAJESH**|
||**AGED 46 YEARS**|
||**S/O LATE BABY, ACE SILVER SPRINGS, ROYAL COURT - 4/3A,**|
||**CHALIYIL ROAD, VALAYANAD AMSOM DESOM,**|
||**MANKAV P.O, KOZHIKODE, PIN – 673 007**|
|**11**|**V. REJEENA**|
||**AGED 49 YEARS**|
||**D/O LATE BABY, VALIYADATH HOUSE,**|
||**PANNIYANKARA AMSOM DESOM, 21/309 C, KALLAYI,**|
||**KOZHIKODE, PIN – 673 003**|
## **BY ADV K.P.BALASUBRAMANYAN**
**THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON**
**21.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**RSA NO. 477 OF 2023**
**3**
## **`T.R.RAVI, J.`**
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RSA No.477 of 2023
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Dated this the 21[st]day of August, 2023
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## **`JUDGMENT`**
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The defendant No.11 in a suit for partition has filed
this appeal. Even though the appellant had approached the
first appellate Court, the said appeal was dismissed. The
only question raised is whether the Courts below were
right in refusing to grant reservation even without framing
an issue on the aspect.
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2. This Court had issued notice before admission to
the respondents and the respondents had entered
appearance through counsel. Heard the counsel on behalf
of the appellant and the counsel on behalf of the
respondents.
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`3. The plaintiffs filed the suit praying for partition of`
`plaint B schedule property, which originally belonged to`
**RSA NO. 477 OF 2023**
**4**
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one Kunnumal Mandodi Ichira and her sons Kandakutty
and Koru as per kanam deed No.13/1930 of Sub
Registrar's Office, Feroke. The property is stated to have
been transferred to Peravakutty, husband of Ichira by
document No.712/1951 and after the death of Ichira and
Peravakutty, the rights over the plaint B schedule property
devolved upon the legal heirs. It is further stated that the
legal heirs surrendered their rights to Kandakutty and his
wife Lakshmi by document Nos.2344/1979, 1191/1979,
971/1980, 4857/1994 and 4953/1994. The plaintiff and
defendants 1 to 3 and 11 are children of Kandakutty and
defendants 4 to 10 are the legal heirs of two daughters of
Kandakutty who had died by the time when the suit was
filed. Except the 11[th] defendant/appellant herein, all other
sharers seek partition. The 11[th] defendant submitted a
written statement admitting the genealogy as per the
schedule to the plaint. However, he denied the allegation
regarding the surrender of shares in favour of the plaintiff.
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**RSA NO. 477 OF 2023**
**5**
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According to the 11[th] defendant, he had been paying
building tax for the house in the suit property from 1984 to
2014 and it is the address of the said house that is
reflected in the identification records of the 11[th] defendant
and his family. According to the 11[th] defendant, he had
made improvements to the house and converted the tiled
roof building to a terraced one. It is also stated that he is
running a press in the said property, which is the sole
source of his income. He claimed that since he has been
residing in the house for last 37 years, his right over the
house should also be considered during the partition. The
trial Court found that the property is partible and
proceeded to pass preliminary decree. The Court also
found that if the 11[th] defendant has any claim of equitable
relief of allotting that portion of land along with the house
to his share, the same can be considered at the stage of
the final decree. Even though the 11[th] defendant had
claimed that an amount of Rs.1,70,000/- had been spent by
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**RSA NO. 477 OF 2023**
**6**
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him in the said property, the trial Court found that there is
no evidence before the Court to substantiate the said
claim. The Court found that there is no claim for the 11[th]
defendant that he had made improvements in the property
with the consent of the other co- sharers either expressly
or impliedly. The Court also found that 11[th] defendant has
not established any exclusive right over the house
warranting reservation. It is in these circumstances, the
Court found that the plea can only be based on equity.
Aggrieved by the refusal to grant reservation over the
house, the appellant preferred an appeal before the first
appellate Court. The first appellate Court dismissed the
appeal confirming the judgment of the trial Court.
Regarding the contentions of the 11[th] defendant that he
had spent huge sum of money for renovation and repair of
the building situated in the plaint B schedule property and
that the house situated in the property should be alloted to
his share, the first appellate Court found that the appellant
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**RSA NO. 477 OF 2023**
**7**
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failed to prove that the house and building situated in the
plaint B schedule property is not partible and that he had
exclusive right over the house and building. The Court also
found that no evidence is available before the Court to say
that the 11[th] defendant/appellant had spent money for
repair and renovation of the building. The Court placed
reliance on the judgment of this Court in Pathumma and
others v. Muhammed [2015 (1) KHC 756], wherein
this Court held that if improvements were made in a co-
ownership property, the law presumes that it is for the
benefit of all and the person who made improvements
cannot claim reservation to the exclusion of others. I do
not find any reason to take a different view from that
which is taken by the trial Court and the first appellate
Court. As far as the equities are concerned, the Court has
already reserved the said right to be considered at the
stage of final decree proceedings. Even though a request
was made by the counsel for the appellant that the parties
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**RSA NO. 477 OF 2023**
**8**
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may be permitted to arrive at a settlement through
mediation, the counsel for the respondents submitted that
it may not be possible to have a mediation at this stage
and that remedy is still available at the stage of final
decree proceedings. I find justification in the submission
made by the counsel for the respondents. No substantial
questions of law arise. The second appeal fails and is
dismissed.
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## **`Sd/-`**
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T.R.RAVI
JUDGE
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