RFA No. 378 of 2007 (Vilasini.K. v. T.K.Rajagopalan and Others)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE A.HARIPRASAD TUESDAY, THE 12TH DAY OF JANUARY 2016/22ND POUSHA, 1937 ## RFA.No. 378 of 2007 --------------------------AGAINST THE JUDGMENT IN OS 434/2001 of ADDL.SUB COURT, PALAKKAD DATED 31-08-2006 APPELLANT/2ND DEFENDANT:: ------------------------------------------ VILASINI.K., WIDOW OF T.K.SIVARAMAKRISHNAN, RESIDING AT THACHAMOOCHIKKAL HOUSE, VILAYANOOR, PALAKKAD. BY ADVS.SRI.T.C.SURESH MENON SRI.JIBU P THOMAS RESPONDENTS/PLAINTIFF/ DEFENDANTS 3 TO 5:: ------------------------------------------------------------------- 1. T.K.RAJAGOPALAN, S/O KRISHNAN, RESIDING AT THACHAMOOCHIKKAL , THENKURUSSI, VILAYANNUR ALATHUR TALUK, PALAKKAD DISTRICT. 2. KRISHNAPRASAD, - S/O.LATE T.K.SIVARAMAKRISHNAN, RESIDING AT FUTUREKINS COMPUTER, LEARNING CENTRE AL-ORUBAH PLAZA-4023, POST BOX 57967, RIYADH-11584 3. LASITHA.T.S., W/O.RAMESH, RESIDING AT THAZHATHU VEEDU, MANNOOR, PALAKKAD TALUK. 4. SYAMPRASAD.T.S, S/O.LATE T.K.SIVARAMAKRISHNAN, RESIDING AT THACHAMOOCHIKKAL HOUSE, VILAYANOOR, PALAKKAD TALUK. R,R.1 BY ADV. SRI.SAJAN VARGHEESE K. R,R.1 BY ADV. SRI.LIJU. M.P THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 12-01-2016, ALONG WITH RFA. 358/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **ANTONY DOMINIC & A.HARIPRASAD, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -** ## **R.F.A.Nos.358 & 378 of 2007** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12[th] day of January, 2016** ## **JUDGMENT** ## _**Hariprasad, J.**_ Feeling aggrieved by the judgment and decree in a suit for partition, both the plaintiff and the defendants have come up in separate appeals. 2. We heard the learned counsel appearing for the appellants and the respondents. 3. Averments in the pleadings in brief are as follows: For the sake of convenience, the parties hereinafter are referred to as the plaintiff and defendants. Plaintiff and deceased first defendant are brothers. Pending suit, the first defendant died and supplemental defendants 2 to 5 were impleaded. Plaintiff contended that the property involved in the suit was purchased as per Ext.A1 document in the year 1968. The total extent of the property is 7.66 acres. Subsequent to purchase of the property, an amicable arrangement was made between the plaintiff and the deceased first defendant whereby the 1.3 acres of paramba was R.F.A.Nos.358 & 378 of 2007 : 2 : taken possession of by the plaintiff and 63 cents of paramba was given to the deceased first defendant. It is the case of the plaintiff that he constructed a house of his own in 1971 in the portion given to him as per the amicable arrangement. He is residing with the family in the house. Deceased first defendant, who got 63 cents of property as per the said amicable arrangement, had also improved that portion of the land. Since the plaintiff did not wish to retain the property in joint ownership, he demanded partition, for which the deceased first defendant was not amenable. Hence the suit was filed. The plaintiff raised a feeble claim for reservation of the house to his share in the event of partition. 4. The contesting defendants filed written statement denying the derivation of title of the property shown in the plaint. According to the contesting defendants, the deceased first defendant purchased the property out of his own funds. As he apprehended that the property may go beyond his ceiling limits provided under the Kerala Land Reforms Act, he included the nature of the plaintiff as well in the R.F.A.Nos.358 & 378 of 2007 : 3 : document. According to the contesting respondent, plaintiff has no right in the property. It is also contended that the house where the plaintiff is residing was built by spending funds by the deceased first defendant. After death of the first defendant, the plaintiff trespassed into the house and reduced the same to his possession. Hence, the suit is liable to be dismissed. 5. PW1 is the son of the plaintiff. DW1 is the supplemental second defendant. Exts.A1 to A5 are the documents produced and marked on the side of the plaintiff. No document was produced by the defendant. 6. Learned counsel for the plaintiff contended that the court below erred in negativing his contentions regarding reservation of the house where he resides. According to the learned counsel, the house bears the name 'Subhash Nivas' indicating that the plaintiff constructed the house and it is named after his son Subhash (PW1). Learned counsel for the contesting defendants would contend that there is no material, except the testimony of PW1, an incompetent R.F.A.Nos.358 & 378 of 2007 : 4 : witness, to show that the plaintiff constructed the house by using his own fund. It is pertinent to note that the plaintiff did not testify before the trial court. Factum of amicable arrangement is not challenged in the written statement. From the materials before us, it is discernible that the parties are in possession of two separate portions of the property for a long time. It probabilises the case of amicable arrangement between the parties. It is well settled that an amicable arrangement between the parties may last only till the actual partition by mets and bounds. However, it is trite that such an arrangement should be respected to the extent possible at the time of final division. 7. Regarding the plaintiffs contention about reservation of the house, there is no reliable material before us. That apart, there is no specific pleading in the plaint claiming a reservation. There is only a vague plea raised in paragraphs 3 and 4 of the plaint. According to the averments in the said paragraphs, the plaintiff had constructed the house in the plaint schedule property by himself. But no R.F.A.Nos.358 & 378 of 2007 : 5 : materials have been produced nor any reliable evidence adduced. That apart, in the prayer portion of the plaint no claim is made for reserving the house without valuation to his share. 8. The distinction between the concepts of reservation and equity is well settled. In the case of reservation, the party will have to plead and prove that the subject matter of reservation should be set apart to him without valuing or in other words excluding the same from partable assets. In the case of equity, what is required to be proved is that a person making the claim is entitled to get the property allotted to his share without causing injury or inconvenience to the other party. The distinction between the reservation and equity has been clearly held in Pathumma v. Mohammed (2015 (1) KHC 756). 9. The evidence adduced by PW1 coupled with Exts.A2 series will only probabilise the case that the plaintiff to the extent that he is residing in the house and he is in possession of the portion of land where the house is situated. Eventhough DW1 was examined to R.F.A.Nos.358 & 378 of 2007 : 6 : oppose the plaint claim, she is also found to be an incompetent witness as she has no direct knowledge about purchase of the property or construction of the house. Most of her depositions are without any foundation in the pleadings. Therefore, we are of the view that the court below correctly found that the entire property is available for partition. We cannot accept the plea of reservation claimed by the plaintiff in the absence of material pleadings and proof. Similarly, we are not able to accept the contention of the contesting defendants that the property is not available for partition as it exclusively belonged to her deceased husband. This contention is hit by the provisions of the Benami Transactions (Prohibition) Act, 1988. Tenor of Ext.A1 would show that the plaintiff and deceased first defendant admitted continuance of an amicable arrangement. Therefore, in the facts and circumstances, we confirm the decree passed by the court below that the plaintiff and contesting defendants each have half right over the property. R.F.A.Nos.358 & 378 of 2007 : 7 : 10. Insofar as the equities to be worked out between the parties, we make the following directions: Admittedly, the plaintiff is in possession of a portion of the land where the house is situated and defendant is in possession of 63 cents of land elsewhere. So the parties are permitted to take up appropriate claims regarding equities at the time of final decree proceedings. The trial court shall pass appropriate directions to allot the portions covered by the amicable arrangement, to the extent possible, to the share of the respective parties. With these observations, appeals are dismissed. _SD/-_ **ANTONY DOMINIC JUDGE** _SD/-_ **A.HARIPRASAD JUDGE** _jes_