Parakandiyil Thamasikum Thacharkandiyil Ramath Leela Amma and 3 others v. Sankaran Nambiar (deceased) and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **FRIDAY, THE 6[TH] DAY OF OCTOBER 2023 / 14TH ASWINA, 1945** **RFA NO. 412 OF 2003 (F)** **AGAINST THE ORDER DTD 30/7/2003 IN FDIA NO.1078/1994 IN OS** **177/1993 ON THE FILE OF SUBORDINATE JUDGE'S COURT, VADAKARA** ## **APPELLANTS/F.D.PETITIONERS/PLAINTIFFS:** - **1 PARAKANDIYIL THAMASIKUM THACHARKANDIYIL RAMATH LEELA AMMA,** - **W/O SANKARAN ADIYODI, NO OCCUPATION, MANDARATHUR AMSOM, MUDAPPILAVIL DESOM, VADAKARA TALUK.** - **2 DAUGHTER, PARAKANDIYIL THAMASIKUM THACHARKANDIYIL RAMATH VEETTIL BINDU, W/O.SREEDHARAN, NO OCCUPATION, MANDARATHUR AMSOM, MUDAPPILAVIL DESOM, VADAKARA TALUK.** - **3 SISTER MANGALATH PARKUM THACHARKANDIYIL RAMATH SINDHU, NO OCCUPATION, KOZHUKKALLUR AMSOM DESOM, KOYILANDY TALUK.** - **4 SISTER THACHARKANDIYIL RAMATH BEENA, NO OCCUPATION, MANDARATHUR AMSOM, MUDAPPILAVIL DESOM, VADAKARA TALUK.** - **BY ADVS.SRI.K.V.SOHAN SRI.B.PREMNATH SMT.SREEJA SOHAN K.** ## **RESPONDENTS/L.RS OF DEFENDANT/SUPPL.RESPONDENTS 2 & 3:** - **1 THACHARKANDIYIL SANKARAN NAMBIAR(DIED), S/O AMMALU AMMA, S.I. OF POLICE, PUTHUPPANAM AMSOM DESOM, VATAKARA TALUK.** - **2 T.K.GANGADHARAN NAMBIAR, S/O.NARAYANI AMMA, “KAILAS” PUTHUPPANAM, VATAKARA.** - **3 ADDL. R3.MEENAKSHI AMMA, W/O LATE SANKARAN NAMBIAR, VIDHI COTTAGE, PAYYADIMEETHAL, KOZHIKODE, PIN-673019.** - **4 ADDL.R4.PRAMOD, S/O. LATE SANKARAN NAMBIAR, VIDHI COTTAGE, PAYYADIMEETHAL, KOZHIKODE, PIN-673019.** - **5 ADDL R5. VINEETH, S/O. LATE SANKARAN NAMBIAR, VIDHI COTTAGE, PAYYADIMEETHAL, KOZHIKODE, PIN-673019.** 2 ## **R.F.A.No.412 of 2003** **LEGAL HEIR OF DECEASED R1 ARE IMPLEADED AS ADDITIONAL RESPONDENTS 3 TO 5 AS PER ORDER DATED 17.08.2016 IN I.A.3290/2008.** **BY ADVS.SRI.B.KRISHNAN, R3 TO R5 SRI.R.PARTHASARATHY, R3 TO R5 SRI.P.SUJITH KUMAR, R3 TO R5** **THIS REGULAR FIRST APPEAL HAVING COME UP FOR FINAL HEARING ON 29.09.2023, THE COURT ON 06.10.2023 DELIVERED THE FOLLOWING:** **R.F.A.No.412 of 2003** 3 ## **C.S.SUDHA, J.** **-------------------------------------R.F.A.No.412 of 2003 ---------------------------------------------------Dated this the 6[th] day of October, 2023** ## **J U D G M E N T** This appeal under Order XLI Rule 1 CPC has been filed by the petitioners in the final decree application/plaintiffs against the order dated 30/07/2003 in F.D.I.A.No.1078/1994 in O.S.No.177/1993 on the file of the Subordinate Judge's Court, Vadakara. The respondents herein are the legal representatives of the original sole defendant. The parties will be referred to as described in the suit. 2. As per the preliminary decree, the decree schedule property having an extent of 10.78 cents and a building therein was ordered to be partitioned by which 16/18 shares was allotted to the plaintiffs and the remaining 2/18 to the deceased defendant. The question of allotment of the residential building in the property was left open to be decided in the final decree proceedings. During the pendency of the final decree proceedings, the sole defendant passed away and her legal representatives have been 4 ## **R.F.A.No.412 of 2003** impleaded as additional defendants 2 and 3. As per the final decree, the decree schedule property with the house therein has been allotted to additional defendants 2 and 3 who as per the preliminary decree, are stated to have obtained the 2/18 share allotted to the original first defendant. The additional defendants 2 and 3 have been directed to pay an amount of ₹2,01,048/- to the plaintiffs towards the value of their share in the decree schedule property. Aggrieved by the allotment of the residential house and the property to the minor sharer ignoring their claim, the plaintiffs have come up in appeal. 3. The only point that arises for consideration in this appeal is whether there is any infirmity in the findings of the trial court calling for an interference by this Court. 4. Heard both sides. 5. The preliminary decree admittedly has become final as per which the plaintiffs have been allotted 16/18 share and 2/18 share to the original sole defendant. Therefore the defendant was, no doubt, a minor sharer. As pointed out by the learned counsel for the additional defendants, relying on the dictum in **Badri Narain Prasad Choudhary v. Nil Ratan Sarkar, AIR 1978 SC 845** , there is no illegality or bar in allotting the 5 ## **R.F.A.No.412 of 2003** residential house in the property to a minor sharer. However, that was a case in which the defendant/sharer therein, the minor sharer, was in possession of the property and using the property as his shop-cum-residence. In such circumstances, it was held by the Apex Court that equity requires that he should be given a preferential right to retain the whole of the property on payment of compensation being the just equivalent of the value of the plaintiff's share to them. 6. In the case on hand, both sides claimed to be in possession of the property and claimed residence also in the property. In the plaint the case of the plaintiffs is that the original defendant, with the help of her children had broke open the lock of the residential building in the property, trespassed into the same and started residence therein. The original defendant on the other hand contended that she was born and brought-up in the said property and that she had been residing all along in the residential building therein and therefore equity demands that she be allotted the property. Now the original defendant is no more. Additional defendants 2 and 3 claim that the right of the original defendant have devolved on them on the basis of a Will which has neither been brought in evidence nor proved. A Will whether denied or not, or even if admitted, has to be proved **R.F.A.No.412 of 2003** 6 as contemplated under Section 68 of the Evidence Act. It is settled law that no documents which is required in law to be attested, can be used as evidence until one attesting witness atleast, has been called for the purpose of proving the execution as contemplated under Section 68 of the Evidence Act. In other words, if any party to the suit were to putforth an attested document as evidence in support of his claim, the court cannot accept the said document as evidence unless and until an attesting witness has been examined to prove the execution of the Will. It is of no consequence in law, whether the execution of the Will is admitted or not. As and when a Will is propounded, the law cast an obligation on the propounder of the Will to prove its execution in the manner prescribed by law. ( **Sarada v. Radhamani, 2017(2) KHC 527** ). 7. Admittedly in the case on hand, the additional defendants have not chosen to prove the execution of the Will by examining the attesting witnesses. In such circumstances, the trial court ought not have relied on the Will on the basis of which the property has been allotted to additional defendants 2 and 3. In the final decree it is stated that as per the Will dated 18/03/1996, the first defendant has bequeathed her right to additional defendants 2 and 3 and that it was her desire that additional defendants 2 and 7 ## **R.F.A.No.412 of 2003** 3 should reside in the house and that since the second defendant has no separate house, he is to be allotted the decree schedule property though he is entitled only to 2/18 share in the property. The additional defendants claim that it was the wish of their mother that they be allotted the house in the decree schedule property. Admittedly, the plaintiffs are co-sharers of the house and therefore the original defendant who was entitled to only to 2/18 share, could not have executed a Will relating to the entire property. If at all she could have executed one, it could only be relating to her share in the property. The defendants have not proved their case based on the Will claimed by them. Therefore relying on the said Will, the trial court ought not to have allotted the property in favour of additional defendants 2 and 3. Had the original defendant been alive, probably the case of equity could have been considered. Now as the first defendant is no more, the question of equity does not arise. In such circumstances, the plaintiffs being entitled to 16/18 share, are entitled to be allotted the property and the building therein and the additional defendants can be awarded the value of the share to which the original defendant was entitled to. 8. As per the commission report, the value of the property and the residential building is stated to be ₹2 lakhs. Both sides admit that the **R.F.A.No.412 of 2003** 8 property has been grossly undervalued. The additional 2[nd] defendant examined as RW1 in his chief examination states that the value of the property in 2003 was ₹8 lakhs. 20 years have elapsed since then. No material has been produced by both sides to show its present value. A remand to the trial court for considering this point, would be a travesty of justice as the suit is of the year 1993. 30 years have elapsed since the filing of the suit. Parties are still awaiting justice. Even going by the admission of RW1, the value of the property was ₹8 lakhs in the year 2003. Had the said amount been deposited as fixed deposit, it would have fetched interest of at least @ 6% p.a. Calculated so, the interest for one year on ₹8 lakhs would be ₹48,000/-. If that be so, for 20 years the interest would be ₹9,60,000/- which added with the principal amount of ₹8 lakhs would come to ₹17,60,000/-. I adopt this method for arriving at the value of the property, as there are no other materials before me to do so. Therefore in such circumstances, I think ₹17 lakhs would be a reasonable amount to be fixed as the value of the property. RW1 is apparently not residing in the building in the decree schedule property as claimed by him as he admits in his crossexamination that he is staying in a house owned by his wife. As the plaintiffs are entitled to 16/18 share in the property, equity demands that they be allotted the property with the house therein and hence the final 9 ## **R.F.A.No.412 of 2003** decree passed by the trial court needs to be set aside. In the result, the appeal is allowed and a final decree is passed in the following terms - (i) The decree schedule property along with the building therein is allotted to the share of the plaintiffs who are entitled to 16/18 share in the property. (ii) The plaintiffs shall pay the value of 2/18 share of the property, that is, ₹1,88,888/- (2/18 of ₹17,00,000/-), to additional defendants 2 and 3. (iii) The amount due from the plaintiffs to additional defendants 2 and 3 shall be a charge on the property allotted to the plaintiffs. (iv) The costs of the proceedings shall come out of the estate. Interlocutory applications, if any pending, shall stand closed. Sd/- **C.S.SUDHA** **JUDGE** ami/