K.V. Dhananjayan v. Kamalakshmi and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **WEDNESDAY, THE 25TH DAY OF SEPTEMBER 2013/3RD ASWINA, 1935** ## **RSA.No. 1559 of 2012 ()** **-----------------------AS 77/2012 of SUB COURT, KANNUR FDIA No.3436/2007 IN OS 71/2007 of ADDL. MUNSIFF COURT, KANNUR** **-----------------** **APPELLANT/APPELLANT/2ND DEFENDANT :-** **---------------------------------------** **K.V.DHANANJAYAN, AGED 74 YEARS, S/O.KORAN, K.V.HOUSE, PANNENPARA, KANNUR - 14.** **BY ADVS.SRI.K.JAJU BABU** **SMT.M.U.VIJAYALAKSHMI** **SRI.T.S.SHYAM PRASANTH** **SMT.M.J.POURNIMA** **RESPONDENTS/RESPONDENTS/PLAINTIFFS/DEFENDANTS 1, 3 AND 4 :-** **------------------------------------------------------------** **1. SMT.KAMALAKSHMI, W/O.LATE K.V.BHASKARAN, RESIDING AT KODOTHUMKANDY HOUSE, P.O.CHIRAKKAL KANNUR II, KANNUR TALUK, PIN - 670 011.** **2. K.HARISH, S/O.LATE BHASKARAN, RESIDING AT KODOTHUMKANDY HOUSE, P.O.CHIRAKKAL, KANNUR II, KANNUR TALUK, PIN 670 011.** **3. K.GIRISH, S/O.LATE BHASKARAN, RESIDING AT KODOTHUMKANDY HOUSE, P.O.CHIRAKKAL, KANNUR II, KANNUR TALUK,PIN 670 011.** **4. K.PREETHA, D/O.LATE BHASKARAN, RESIDING AT KODOTHUMKANDY HOUSE, P.O.CHIRAKKAL, KANNUR II, KANNUR TALUK, PIN 670 011** **5. K.SREEJA, D/O.LATE BHASKARAN, RESIDING AT KODOTHUMKANDY HOUSE, P.O.CHIRAKKAL, KANNUR II, KANNUR TALUK, PIN 670 011** **6. SMT.K.V.SHYLAJA, D/O.KORAN, RESIDING AT JAYASHYLAM, ARAMKOTTAM, ALAVIL, KANNUR - 6, PIN - 670008.** **7. O.M.VIJAYALAKSHMI, D/O.NARAYANI, RESIDING AT MATHUMMAL HOUSE, TALAP, KANNUR - 6, PIN - 670 002.** **8. O.K.HEMANTH KUMAR, S/O.VIJAYALAKSHMI, RESIDING AT MATHUMMAL HOUSE, TALAP, KANNUR, PIN 670002.** ## **RSA.No. 1559 of 2012** **9. O.K.SANAL KUMAR, S/O.VIYALALAKSHMI, RESIDING AT MATHUMMAL HOUSE, TALAP, KANNUR, PIN 670002.** **10. O.K.NAVEEN, S/O.VIJAYALAKSHMI, RESIDING AT MATHUMMAL HOUSE TALAP, KANNUR, PIN 670002.** **11. L.K.HARSHA, D/O.VIJAYALAKSHMI, RESIDING AT MATHUMMAL HOUSE TALAP, KANNUR, PIN 670002.** **12. K.V.JAYANDAN (DIED, LRs RECORDED), S/O.KORAN, 'SREYAS ', M.R.LANE, JEPPU, BAPPAL MANGALORE - 575001.** **13. SMT.K.V.MYTHILI (DIED, LRs RECORDED), D/O.KORAN, C/O.M.RADHAKRISHNAN, HARIKRIPA. KANNUR - 670 004.** **R12 AND R13 EXPIRED. R19 TO R21 ARE RECORDED AS LRs OF R12 AND R15 TO R18 ARE RECORDED AS LRs OF R13 AS PER ORDER DT.18.6.2013 IN MEMO DT 10.6.2013 VIDE CF 3733/13.** **14. K.V.SHANTHA KUMAR, S/O.KORAN, DWC 1221A, HUTHA COLONY BJADRAVATHY 14577 - 30, KARNATAKA 577302** **15. GEETHA, D/O.LATE MYTHILY RESIDING IN 'HARIKRIPA ', KANNUR 670 004, KANNUR TALUK.** **16. PRASANTHI, D/O.LATE MYTHILY, EMPLOYED IN AVISHINS, C/O.N.GOPALAN & SONS, BALMATTA MANGALORE, SOUTH KANARA - 575 002.** **17. LATHEESH, S/O.LATE MYTHILY, NO OCCUPATION, C/O.N.GOPALAN AND SONS, BALMATTA, MANGALORE SOUTH KANARA - 575 002.** **18. DINESH, S/O.LATE MYTHILY, NO OCCUPATION, C/O.N.GOPALAN AND SONS, DALMATTA, MANGALORE, SOUTH KARNATAKA - 575001.** **19. MEERA JAYANANDAN, W/O. LATE JAYANANDAN, RTD BANK OFFICIAL RESIDING IN "SREYAS", M.R.LANE, JEPPU BAPPAL, MANGALORE 575 001.** **20. SHANITHA RAM, D/O.LATE JAYANANDAN, OCCUPATION NOT KNOWN RESIDING IN "SREYAS", M.R.LANE, JEPPU BAPPAL, MANGALORE - 575 001.** **21. NITHIN K.V., S/O.LATE JAYANANDAN, OCCUPATION NOT KNOWN RESIDING AT "SREYAS", M.R.LANE, JEPPU BAPPAL, MANGALORE - 575 001.** **22. DIVYA PRAVEEN, S/O.LATE JAYANANDAN, OCCUPATION NOT KNOWN, RESIDING IN "SREYAS", M.R.LANE, JEPPU BAPPAL, MANGALORE 575 001.** **RSA.No. 1559 of 2012** **23. SASANK SUVARNA, D/O.DEEPIKA ASHOK, STUDENT, "SREYAS" M.K.LANE, JEPPU, BAPPAL, MANGALORE - 575 001.** **BY ADV. SRI.M.RAMESH CHANDER (SR.) SRI.ANEESH JOSEPH** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25-09-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **jvt** ## **N.K.BALAKRISHNAN, J. -------------------------------R.S.A. No.1559 of 2012** ## **--------------------------------Dated this the 25[th] day of September 2013** ## **J U D G M E N T** The 2[nd] defendant in a final decree application for partition has filed this RSA challenging the final decree passed by the trial court which was confirmed by the lower appellate court. The preliminary decree directs division of the plaint schedule property into seven equal shares and to allot three such shares to the plaintiffs and three such shares to defendants 1, 3 and 4 and the remaining one share to the 2[nd] defendant, who is the appellant herein. A commission was issued for effecting division in terms of the preliminary decree. The Advocate Commissioner found that the total extent of the property available for division was 38.40 cents. He prepared two plans (Exts.C2 and C3). 2. The appellant herein contended that he has been residing in the house situated in the suit property and so, in equity the land where the house is situated has to be allotted to him. Accordingly, the Advocate Commissioner prepared R.S.A. No.1559 of 2012 -: 2 :- two plans - Exts.C2 and C3. The trial court accepted Ext.C3 plan as per which plot B shown therein, the extent of which is 5.50 cents, was allotted to the share of the 2[nd] defendant/appellant. The entire remaining land with the house situated therein was allotted to the share of the respondents (plaintiffs 1 to 3 and defendants 1, 3 and 4). The allotment made by the trial court as per the final decree was challenged by the appellant. The appellate court concurred with the judgment of the trial court and dismissed the appeal. 3. Learned counsel for the appellant would submit that the trial court did not allot the area where the house is situated to the appellant only for the reason that the appellant had chosen to file objection to the commissioner's report with regard to the valuation of the house. The Advocate Commissioner estimated the value of the house at `3,75,906/-. But it was pointed out that it is not feasible to allot the area where the house is situated to the share of the appellant who was having only 1/7 share in the whole of the property since if the house is allotted to his share, the total extent of the land which may have to be allotted to the share of the appellant R.S.A. No.1559 of 2012 -: 3 :- would come to 13.90 cents whereas the appellant is entitled to get only 5.50 cents. 4. It is vehemently argued by the learned counsel for the appellant that the appellant has given evidence as RW1 with regard to the allotment of the house but the respondents herein did not adduce any evidence to counter those allegations. But the learned counsel for the respondents would submit that merely because the appellant has deposed before court that the house has to be allotted to him, the court is not obliged to allot the house when it would work out injustice to the other sharers. Since the total extent of the land is only 38.40 cents, the appellant cannot ask for allotment of plot B shown in Ext.C2 plan, the extent of which would come to 13.90 cents. 5. The learned counsel now submits that the matter may be remanded to the trial court so as to find the feasibility of allotting the house to the appellant towards his share. I do not find any justification in ordering remand. The Advocate Commissioner who was deputed to effect division of the property in terms of the preliminary decree has produced R.S.A. No.1559 of 2012 -: 4 :- Exts.C2 and C3 plans. Since the respondents are entitled to get 6/7 shares, the contention that the site of the building and the surrounding land should be allotted to the share of the appellant cannot be sustained. The trial court found that allotment of plot B shown in Ext.C3 plan will certainly suffice the requirements so far as the appellant is concerned. The appellant contends that since he has been residing in the house it has to be allotted to him. But in view of the fact that the respondents are entitled to get 6/7 shares, the request so made by the appellant cannot be sustained. 6. It is not a case where the property is incapable of division in terms of the preliminary decree. Only because the house cannot be allotted to the share of the appellant, it cannot be said that it is not feasible to have a proper division of the property. Plot B marked in Ext.C3 which is the property allotted to the appellant is abutting the road. If the appellant wants to put up a house then certainly he can construct a house in plot B shown in Ext.C3 plan. It has come out in evidence that the appellant has got right and possession over an extent of 50 cents of land situated in R.S.A. No.1559 of 2012 -: 5 :- Kannur District where this property is situated. Besides, he is stated to be having property in Kasaragod District also. 7. It is vehemently argued by the learned counsel for the appellant that since he is residing in the house, he has carried out maintenance, for which he had spent money from his own pocket and so, if the house is not allotted to him, that will work out injustice to him. No reservation was granted in the preliminary decree. What was to be considered was only the claim of equity. Since it is not feasible to have a division of the property in such a way as to allot the house to the appellant without causing detriment to the interest of the other sharers, the request for allotment of the house cannot be countenanced. Since plot B which is abutting the road and is reported to be fit for construction of a house, there cannot be any grievance for the appellant. No request or application was made by the appellant for sale of the house to him. 8. It was held by the Apex Court in **Rani Aloka Dudhoria and Others** v. **Goutam dudhoria and Others** [AIR 2010 SC 53] that the court has no power to direct auction sale de hors the provisions of Partition Act. R.S.A. No.1559 of 2012 -: 6 :- 9. Learned counsel for the respondents would submit that in fact the valuation of the house suggested by the Advocate Commissioner was objected to by the appellant stating that the valuation is excessive and that itself will indicate that at that point of time, the appellant did not intend to have allotment of the house in his favour. The Scheme of Secs.2 and 3 of the Partition Act is that if the nature of the property is such or the number of share holders is so many or if there is any other special circumstance and a division of the property cannot reasonably or conveniently be made the court has in its discretion, on the request of any of the share holders interested individually or collectively to the extent of one moiety or upwards, direct a sale of the property and distribute the proceeds among the share holders (see the decision in **K. Ramamurthi Iyer** v. **Raja V. Rajeswara Rao** [AIR 1973 SC 643]). In fact Sec.3 does not make it obligatory to the court to give a positive finding that the property is incapable of division by metes and bounds. So far as the case on hand is concerned, that question actually does not arise for consideration since plot B, which measures 5.50 cents R.S.A. No.1559 of 2012 -: 7 :- abutting the road has been allotted to the appellant being his 1/7 share. Therefore, it cannot be said that the lower appellate court should be directed to conduct auction of the house among the sharers. Since even according to the appellant, the value of the house determined by the Advocate Commissioner is excessive there could be no legitimate grievance for the appellant that if the house is allotted to the respondents, it will work out injustice to the appellant. The house is not situated abutting the road but far inside the suit property so that it is not feasible to have allotment of the house and the appurtenant land to the appellant. It can be seen from Ext.C2 plan, that if that plot is allotted, the total extent of the land would be 13.90 cents as against 5.50 cents which alone is the share which the appellant is entitled to. Therefore, the contention that the matter may have to be remanded to the trial court for causing proper division of the property cannot be sustained. 10. Though the request as aforesaid made on behalf of the appellant cannot be sustained, I find that, in order to do complete justice to the parties, the appellant may have to be R.S.A. No.1559 of 2012 -: 8 :- given some more amount. The appellant may have to shift his residence. Some amount might have been spent by the appellant for periodical repairs. Of course, it might have been done as he was residing in the house. However, considering all the aspects, I find that the respondents are to pay a total sum of `24,000/- (at the rate of `4,000/- per share) to the appellant over and above the sum fixed by the trial court. In the result, the final decree passed by the trial court and confirmed by the appellate court will stand modified directing the respondents (plaintiffs 1 to 3 and defendants 1, 3 and 4) together to pay a sum of `24,000/- (Rupees Twenty Four Thousand only) to the appellant, which will also be a charge on the property allotted to the respondents. In all other respects, the final decree passed by the courts below stand confirmed and to that extent, this RSA stands dismissed. **Sd/N.K.BALAKRISHNAN, JUDGE.** //True Copy// P.A. To Judge Jvt