Premkumar v. Ramachandran and Haridasan

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` THURSDAY, THE 8[TH] DAY OF FEBRUARY 2024 / 19TH MAGHA, 1945 ``` ## **`RSA NO. 208 OF 2023`** ``` AGAINST THE DECREE AND JUDGMENT DATED 30.01.2020 IN A.S.NO.42/2016 ON THE ``` ``` FILES OF THE SUBORDINATE COURT, TIRUR AROSE FROM THE ORDER DATED 22.03.2016 IN FDIA NO.645/2013 IN O.S.NO.44/2011 ON THE FILES OF THE ``` ## **`COURT OF THE MUNSIFF-MAGISTRATE, PONNANI`** ## **`APPELLANT/1ST RESPONDENT/PETITIONER:`** ``` PREMAKUMAR AGED 54 YEARS S/O KORU, MUNDAN VALAPPIL HOUSE, EZHUVATHIRUTHY AMSOM DESOM PONNANI TALUK, MALAPPURAM DISTRICT, PIN - 679577 BY ADVS. JAMSHEED HAFIZ K.K.NESNA T.S.SREEKUTTY ``` ## **`RESPONDENTS/2ND RESPONDENT & APPELLANT/RESPONDENTS:`** ``` 1RAMACHANDRAN AGED 66 YEARS S/O KORU, MUNDANVALAPPIL HOUSE, EXHUVATHIRUTHY AMSOM DESOM PONNANI TALUK, MALAPPURAM DISTRICT, PIN - 679577 2HARIDASAN AGED 63 YEARS S/O KORU, MUNDAN VALAPPIL HOUSE, EZHUVATHIRUTHY AMSOM DESOM PONNANI TALUK, MALAPPURAM DISTRICT, PIN - 679577 BY ADVS. FOR R1 - T.ANCY FOR R2 – T.KRISHNANUNNI MINI M.R. VINOD RAVINDRANATH(K/001479/1999) MEENA.A.(K/001814/1995) K.C.KIRAN(K/621/2006) M.DEVESH(K/1253/2012) ASHWIN SATHYANATH(K/001035/2016) ANISH ANTONY(K/1100/2013) THAREEQ ANVER K.(K/000942/2018) ``` ## **`THIS REGULAR SECOND APPEAL HAVING COME UP FOR JUDGMENT ON`** ``` 08.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` R.S.A. No. 208 of 2023 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 8[th] day of February, 2024** This regular second appeal has been filed under order XLII Rule 1 read with Section 100 of the Code of Civil Procedure (“CPC” hereinafter) challenging the decree and judgment in A.S. No.42 of 2016 dated 30.01.2020 on the files of the Court of the Subordinate Judge, Tirur whereby the learned Subordinate Judge set aside the order in F.D.I.A. No.645 of 2013 in O.S. No.44 of 2011 dated 22.03.2016 on the files of the Court of the MunsiffMagistrate, Ponnani. The appellant herein is the petitioner and respondents are respondents in the final decree proceedings. 2. Heard the learned counsel for the appellant as well as the learned senior counsel appearing for the respondents. Perused the verdicts under challenge. 3. I shall refer the parties in this appeal by their names viz. “Sri.Premkumar, Sri.Ramachandran and Sri.Haridasan”. ``` R.S.A. No. 208 of 2023 ``` ``` 3 ``` 4. As per the order dated 09.08.2023, my learned predecessor admitted this appeal by formulating the following substantial question of law: “Having held that the 1[st] respondent is not entitled for reservation, was the first appellate court right in having directed that the house be allotted to the 1[st] respondent?” 5. Coming to the facts of this case, Sri.Premkumar filed suit for partition and claimed 1/3[rd] right over the plaint schedule property. Preliminary decree was passed as such allotting 1/3[rd] share to each of the parties viz. Sri.Premkumar, Sri.Haridasan and Sri.Ramachandran. Thereafter, F.D.I.A. No.645/2013 was filed by the plaintiff, Sri.Premkumar. A Commissioner was deputed for effecting partition and the Commissioner filed Exts.C1 to C4 reports. The specific contention raised by the 1[st] respondent, Sri.Haridasan in the final decree proceedings is that he had constructed the house situated in the plaint schedule property and he had spent Rs.2 Lakh for the same. Moreover, he has been living in the house ever since it was constructed and he being an autorickshaw driver, is not ``` R.S.A. No. 208 of 2023 ``` ``` 4 ``` financially sound to construct another house. Therefore, he claimed reservation over the house. 6. The trial court adjudicated the dispute. Ext.A1 marked on the side of the petitioner/plaintiff. RW1 examined and Ext.B1 marked on the side of the respondents/defendants. Exts.C1 to C4 marked as court exhibits. 7. Finally, the trial court found that the Commissioner deputed in this case reported that, the total extent of property is 7.5 cents and the building in the property overlaps almost major portion of the land. Therefore, it is impossible to divide the property physically into three equal shares. Thereafter, the trial court adjudicated the claim of the 1[st] respondent, Sri.Haridasan regarding the expenses incurred by him for the purpose of construction of the house therein and other contentions. In paragraph No.6 of the order of the trial court, the trial court found that Sri.Haridasan did not succeed in his attempt to adduce any documentary evidence or any believable oral testimony to prove his claims before the trial court. ``` R.S.A. No. 208 of 2023 ``` ``` 5 ``` 8. Accordingly, the trial court passed the final decree as under: “In the result, the property shall be auctioned among the sharers and highest bidder will auction it to himself and out of the proceeds Rs.2,00,000/- will be given the 1[st] respondent being the equity and the balance amount will be divided among the 3 sharers equally. In the circumstances, of the case there is no order as to costs.” 9. The matter was taken up in appeal and the Appellate Court addressed the contentions of the 1[st] respondent and also referred decisions of the Apex court reported in **[1978 KHC 561 : 1978 (9) SCC 30 : AIR 1978 SC 845], Badri Narain Prasad Choudhary v. Nil Ratan Sarkar** and the decision reported in **[2012 (1) KHC 23], Rajan P.C. v. P.C. John and another** . Accordingly, it was found that a cumulative reading of the evidence would reveal that there was nothing adduced by the 1[st] respondent, Sri.Haridasan to the effect that he had spent money substantially for constructing or renovating the house in the plaint schedule property to get reservation ``` R.S.A. No. 208 of 2023 ``` ``` 6 ``` over the said house. Hence, the claim of reservation raised by Sri.Haridasan for allotment of the house, without valuing the same as such was found unsustainable. Thus, the Appellate Court set aside the trial court’s order in the final decree application, directing payment of Rs.2 Lakh to the 1[st] respondent, Sri.Haridasan as reservation. Finally, the Appellate Court in paragraph No.22, while allowing appeal and cross-objection held as under: 22. For the above purpose, the trial court is hereby directed to depute an Advocate Commissioner for assessing the market value of the plaint schedule property along with the house therein and thereafter to determine the market value of the plaint schedule property along with house therein on hearing both parties. On so determining the market value of the plaint schedule property by the trial court, the 1[st] respondent is to be allotted the plaint schedule property with the house therein subject to the payment of market value of 1/3[rd] share each of the petitioner, 1[st] respondent over the plaint schedule property, within three months therefrom or further period as may be granted by the ``` R.S.A. No. 208 of 2023 ``` ``` 7 ``` trial court. In the event of failure on the part of the 1[st] respondent to pay the amount equivalent to the 1/3[rd] share of the petitioner, 2[nd] respondent as above mentioned, within the stipulated period, the petition schedule property shall be put in auction as between the sharers, and the sharer who offers the highest bid shall be allotted the plaint schedule property along with house therein and out of the sale proceeds, amount equivalent to 1/3 share each of the remaining sharers shall be paid. With the above directions to the trial court, the appeal and the cross objection are allowed.” 10. The learned counsel for the appellant, Sri.Premkumar, submitted that the ratio in **Badri Narain Prasad Choudhary’s** case (supra) cannot be applied to the facts of this case, where all parties are having equal shares and no reservation found by the courts below. The Apex Court in **Badri Narain Prasad Choudhary’s** case (supra) given reservation to the defendant, where the defendant was found to be a person who had smaller share in the building and where the plaintiffs owned major share ``` 8 ``` ``` R.S.A. No. 208 of 2023 ``` and have unlimited resources to outbid the defendant during auction. 11. Whereas the learned senior counsel appearing for the respondents, Sri.Haridasan and Sri.Ramachandran, vehemently relied on the decision in **Badri Narain Prasad** **Choudhary** ’s case (supra) with reference to paragraph Nos. 20 and 21 of the decision. For clarity, the same are extracted hereunder: “20. The suit property, being incapable of division in specie, there is no alternative but to resort to the process called owelty, according to which, the rights and interests of the parties in the property will be separated, only by allowing one of them to retain the whole of the suit property on payment of just compensation to the other. As rightly pointed out by K. Subba Rao, C. J. (speaking for a Division Bench of Andhra High Court in AIR 1958 Andh Pra 647), in cases not covered by S.2 and 3 of the Partition Act, the power of the Court to partition property by any equitable method is not affected by the said Act. 21. Now in the present case, the defendant is the smaller cosharer and he is ``` R.S.A. No. 208 of 2023 ``` ``` 9 ``` using the property as a shop-cum-residence. Equity requires that he should be given a preferential right to retain the whole of the suit property on payment of compensation being the just equivalent of the value of the plaintiffs' share to them. The valuation of Rs.9,000/- fixed by the High Court was certainly not a fair compensation for the plaintiffs' 13/16 share. This was the price at which the plaintiffs had purchased their share on April 27, 1957. But in 1958, more than one year before this suit, which was instituted in August, 1959, a plan or scheme for converting this locality into a market had been approved by the authorities. This must have led to an immediate spurt in the value of the land in the locality. In this connection it is pertinent to note that when in 1963, this property was, in execution of the decree of the Trial Court, put to auction, the highest bid fetched by it was Rs.50,000/-. It was therefore, highly unfair to the plaintiffs to fix the value of their share at Rupees 9,000/-, even on March 20, 1967 when the High Court's judgment was pronounced. Although the value of the property could be fixed by auction between the two parties, we feel that this method would be unsatisfactory in this case as the plaintiffs who own the major ``` R.S.A. No. 208 of 2023 ``` ``` 10 ``` share and have unlimited resources, would outbid the defendant. In the circumstances, we think that the more equitable method would be to take the value of the property as Rs. 50,000/- in 1963 and allow a reasonable increase for the rise in price since 1963 to this date, taking into account the rise in price in the locality, and give the defendant the first option to retain the whole property on payment of 13/16 share of that valuation (including the increase) to the plaintiffs within a period of three months or such further period that may be granted by the Court of first instance, failing which the plaintiffs will be entitled to be allotted and put in possession of the whole of the suit property, on payment to the defendant of 3/16 share of the value of the property determined by the Subordinate Judge, Patna in the manner aforesaid.” 12. Equity is a rule to be followed while effecting partition by metes and bounds and equity does not mean favoring one person and negating another. In partition suits principles of equity and owelty invariably would apply to effectuate equi-distribution of shares. The word "equity" is derived from the Latin word "acquitas" which means ``` R.S.A. No. 208 of 2023 ``` ``` 11 ``` 'leveling'. Equity encompasses the set of rules that traditionally supplemented the common law where the application of the common law would have operated too often. Principles of equity envisages the principles of natural justice, fairness and reasonableness. 13. Tracing the history of equity as a source of Law, equity traces through Roman law, scholastic theology, the Magisterial reformation and the English Court of Chancery. In Chancery Courts, where the Chancellor sat as the "Keeper of the King's conscience" to give relief to the King's domains in cases of hardship, by the application of the principles of morality or conscience. But equity is not identical with morality. Rather it is synonymous to justice. 14. Literally equity means right as founded on the laws of nature, fairness, justice. According to Aristotle, "equity is the correction of the law where it is defective on account of its generality". Blackstone defines equity, in its true and genuine meaning, is the soul and spirit of all law; positive law is construed and natural law is made by it. In this way, equity is synonymous with justice, in that, it is the true and sound interpretation of the rule. ``` R.S.A. No. 208 of 2023 ``` ``` 12 ``` 15. Truly, essence to be given more importance than the form of a legal provision and the essence of equity as defined by the maxim is "equity will not suffer a wrong to be without a remedy". 16. The Indian law recognizes equity under Hindu Law, in case of a conflict between the rules of **Smritis** , either may be followed, as reasonings on the principles of equity i.e. ‘Yuktivichar’. The latter **Smritikaras** , namely, **Narada** and **Brihaspati,** the ancient vedic scriptures of Hinduism acknowledged the importance of equitable principles. According to Brihaspati "decisions should not be based merely on scriptures. There would be failure of justice if the principles based on reasons are not followed." Chanakya @ Vishnugupta advocated that principles of equity would prevail over reasons. 17. The Mohammedan law also recognizes the principles of equity. The principle is known as **istihsan** or juristic discretion or equity as per the ‘Hanafi maddhab’. ‘Maliki maddhab’ propounds **istilah** i.e. ‘common good’ akin to equity. 18. The law commission during the British Rule ``` R.S.A. No. 208 of 2023 ``` ``` 13 ``` prepared a body of substantive law for India and recommended that the judges should decide these case for which there is no provision in law "in the manner they deem most consistent with the principles of justice, equity and good conscience". 19. Those judicial principles constituting the ultimate sources of equitable doctrines are commonly known as maxims of equity and some are as under: 1. Equity will not suffer a wrong to be without a remedy. 2. Equity will not allow a wrongdoer to profit by a wrong. 3. Equity follows the law. 4. Where equities are equal, the law shall prevail. 5. Equity does not punish. 6. One, who seeks equity, must do equity. 7. He, who comes into equity, must come with clean hands. 8. Equity delights to do justice and not by halves. 9. Equality is a sort of equity. 10. Equity looks to the intent, rather to the form. 11. Equity abhors a forfeiture. ``` R.S.A. No. 208 of 2023 ``` ``` 14 ``` 12. Equity imputes an intention to fulfill an obligation. 13. Equity will not complete an imperfect gift. 14. Equity does not require an idle gesture. 15. Equity will take jurisdiction to avoid multiplicity of suits. 16. Equity acts in **personam** (i.e. on persons rather than on objects). 17. Delay defeats Equity, or Equity aids the vigilant not the indolent. 18. Between equal equities the first in order of time shall prevail.” 20. Much reliance is given by the learned senior counsel for the respondents to the decision in **Badri Narain Prasad Choudhary** ’s case (supra) to justify the First Appellate Court’s judgment, where the Apex Court permitted the defendant therein, who got smaller co-share and was using the property as a shop-cum-residence, on the principles of equity, given the first option to retain the whole of the suit property on payment of 13/16 shares of that valuation to the plaintiffs, within a period of three months or such further period fixed by the court of first ``` R.S.A. No. 208 of 2023 ``` ``` 15 ``` instance. Where the Apex Court also given permission to the plaintiffs to do the said exercise if the defendant would fail to exercise his auction. So, the decision in **Badri Narain Prasad Choudhary** ’s case (supra) is based on the facts of the case that, if the properties sold in auction amongst the sharers, the plaintiffs who own major share would outbid the defendant during auction. 21. In the instant case, the trial court as well as the Appellate Court negatived the claim of reservation raised by the 1[st] defendant, Sri.Haridasan contending that he had spent money for construction of the house. In view of the said finding, which is found to be justifiable on the available materials, the status of the parties in this lis are equal and nobody would get any reservation as per law. It is true that the 1[st] defendant, Sri.Haridasan has been residing in the building, since the plaintiff and the 2[nd] defendant are living separately in other buildings, that alone is not a reason to allot the house to the 1[st] defendant as directed by the First Appellate Court. Therefore, the First Appellate Court went wrong in this regard, since the 1[st] ``` R.S.A. No. 208 of 2023 ``` ``` 16 ``` defendant not found entitled to get any reservation. Since the parties have equal rights over the property and the property is reported to be not partible into three equal shares, equity in the present case is to put the entire property on auction among the parties, with liberty to the highest bidder to retain the house after paying 1/3[rd] share each of the auction prize to the other parties. Viewing so, it is held that the decree and judgment of the First Appellate Court allotting the plaint schedule property with the house therein to the 1[st] defendant, after appointing an Advocate Commissioner for assessing the market value, so that the other sharers could get their shares out of the market value fixed by the Commissioner, is found to be unsustainable. 22. Accordingly, the decree and judgment of the the First Appellate Court as well as the final decree and judgment of the trial court are interfered and hereby set aside. 23. In the result, this appeal stands allowed. It is ordered that the plaint schedule properties shall be ``` R.S.A. No. 208 of 2023 ``` ``` 17 ``` auctioned among the parties to the lis and the highest bidder will get the same on payment of 1/3[rd] share out of the sale price each to the other parties. For exercising the said auction among the parties, the execution court shall proceed in accordance with law. Considering the nature of the dispute between the parties, cost to the parties shall come out of the estate. **==> picture [201 x 59] intentionally omitted <==** **Sd/A. BADHARUDEEN JUDGE** SK