R.S.A. No. 65 of 2013 (Raju Villentavida v. Devi Villentavida and others)

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 31ST DAY OF MAY 2013/10TH JYAISHTA 1935 RSA.No. 65 of 2013 () ------------------ Against the Judgment in AS 7/2010 of Sub Court, Vadakara Against the judgment in FDIA 461/2008 in OS 28/2007 of Munsiff Court, Vatakara ## APPELLANT(S): ----------- RAJU VILLENTAVIDA , AGED 50 YEARS S/O.KANARI, COPRA WORK MUTTUNGAL, KAINATTY MUTTUNGAL AMSOM DESOM VATAKARA TALUK P.O MUTTUNGAL WEST ## BY ADV. SRI.ZUBAIR PULIKKOOL RESPONDENT(S): ------------- ## 1. DEVI VILLENTAVIDA, AGED 46 YEARS D/O.KANARI, SWASTHAM RAJEESH NIVAS RESIDING AT PALLIPARAMBATH KALLAMALA, AZHIYUR AMSOM CHOMBAI DESOM, VATAKARA TALUK , P.O CHOMBALA KOZHIKODE DISTRICT - PIN 673 108 2. GEETHA VILLENTAVIDA, AGED 41 YEARS D/O.KANARI, SWASTHAM , RAJEESH NIVAS RESIDING AT PADINJARE GOTHAMBINTAVIDA MUTTUNGAL AMSOM DESOM , VATAKARA TALUK P.O MUTTUNGAL WEST KOZHIKODE DISTRICT - PIN 673 102 RSA.No. 65 of 2013 () -2- 3. PREETHA VILLENTAVIDA, AGED 38 YEARS D/O.KANARI, SWASTHAM, MUTUNGAL, KAINATTY, MUTTUNGAL AMSOM DESOM, VATAKARA TALUK P.O MUTTUNGAL WEST PIN 673102 - 4.RAJILA VILLENTAVIDA, AGED 30 YEARS - D/O.RAJAN & LATE NIRMALA SWASTHAM RESIDING AT PADINHARE KUNNUVAYALLIL MUTTUNGAL AMSOM RAYARANGOTH DESOM VATAKARA TALUK P.O RAYARANGOTH - PIN 673 103 ## 5. SUJITLA VILLENTAVIDA, AGED 28 YEARS - D/O.RAJAN & LATE NIRMALA SWASTHAMM RESIDING AT KOTTAKUNNU CHARUPARAMBATH, IRINGAL AMSOM DESOM KOYILANDY TALUK P.O IRINGAL - PIN 673525 ## 6. PRAJILA VILLENTAVIDA, AGED 26 YEARS - D/O.RAJAN & LATE NIRMALA, SWASTHAM MUTTUNGAL, KAINATTY, MUTTUNGAL AMSOM DESOM VATAKARA TALUK P.O MUTTUNGAL WEST PIN 673 102 ## 7. SHAJILA VILLENTIVIDA, AGED 24 YEARS D/O RAJAN & LATE NIRMALA, SWASTHAM, RESIDING AT KELOTH THAZHAKUNIYIL KUNNUMMAKKARA AMSOM DESOM, VATAKARA TALUK P.O CHOMBALA, KOZHIKODE DISTRICT - PIN 673 108 ADVS. M/S. SRI.K.RAKESH ROSHAN & SMT.THUSHARA.V THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 31-05-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## N.K. Balakrishnan, J. ................................................. R.S.A. No.65 of 2013 ..................................................... Dated: 31-05-2013 ## JUDGMENT Being aggrieved by the final decree passed by the courts below, the first defendant in a suit for partition has filed this appeal challenging the allotment made by the courts below. The preliminary decree directs division of the plaint schedule property measuring about 12 cents into 20 equal shares and to allot 4 such shares to the first defendant (the appellant herein) and the remaining 12 such shares to respondents 2 to 7 in the final decree application. In the final decree proceedings Advocate Commissioner was deputed to effect division of the property. Since rival contentions were raised by the parties before the Advocate Commissioner, two modes were suggested by the Advocate Commissioner and reports were filed. Reports and plans R.S.A. No.65 of 2013 **2** were marked as Exts. C1 to C7 (a). The appellant herein was examined as RW1 and the third respondent in this R.S.A. was examined as RW2. The trial court found that the second suggestion made by the Advocate Commissioner is more feasible, reasonable and acceptable and as such that mode was accepted and a final decree was passed directing allotment of plot A in Ext. C2 plan to the plaintiff and plot B in Ext. C2 plan to the appellant herein. Plot C and D in that plan were allotted to respondents 2 to 7 (defendants 2 to 7). Directions are made to respondents 2 to 7 to pay certain amounts to the plaintiff and also to the appellant herein for equalisation of shares. 2. The learned counsel for the appellant submits that the house situated in the plaint schedule property which is in plot C should have been allotted to the share of the appellant herein. It was contended that he had spent huge amount for the family consisting of other sharers and also huge amount for repair and maintenance of the house . But the courts below were not R.S.A. No.65 of 2013 **3** convinced of the grounds so taken by the appellant. Though the appellant who was examined as RW1 has stated that he has no other land and he has no financial capacity to construct a building, that was found against. It was found that the appellant's wife was having a property and it was sold recently. Besides, appellant's two daughters were already given in marriage. His son who is a marble worker is also staying along with the appellant. The third respondent in the final decree petitioner who was examined as RW2 is admittedly a spinster. Comparared to the financial capacity of RW1 and RW2, it was found that RW1 was having financial capacity to construct a house in the plot allotted to him and that RW2 is a poor lady having no financial capacity to construct a house. 3. It is pertinent to note that respondents 2 to 7 in the final decree are entitled to get 12/20 shares. On actual measurement the total extent of land available was found to be 11.300 cents. Plot A was allotted to the plaintiff having an extent of 1.76 cents. R.S.A. No.65 of 2013 **4** Plot B is the plot allotted to the appellant herein which measures 2.44 cents. By arithmetical calculation the extent of land allotted to him is slightly more than what he is entitled to get towards his 4/20 shares. The contention that plot C should be allotted to him was rightly found against by the courts below. The learned counsel for the appellant has relied upon the decision of the Supreme Court in **Badri Narain v. Nil Ratan - AIR 1978 SC 845** in support of his submission that though the appellant is entitled to get only 4/20 shares and the extent of the land to be allotted to him is only 2 and odd cents since he was in occupation of the house, equity requires that he should be given a preferential right to retain that property on payment of compensation to the other sharers. Since the parties have not chosen to file application under the Partition Act, the courts below had to allot the property considering the equity and balance of convenience. The lower appellate have considered all those aspects and found that the second mode suggested by the Advocate Commissioner, R.S.A. No.65 of 2013 **5** which was accepted by the trial court, is quite reasonable. As such, I find no reason to interfere with the allottment of the plots made by the trial court, which was accepted by the lower appellate court. 4. In the course of the argument and discussion it could be found that after the proposed widening of the road the property in question would be abutting the highway and so one cent of land will fetch more than Rs. 5 lakhs. It was not disputed that the land value has gone up to a great extent. The land was allotted almost in proportion to the extent the sharers were entitled to get. However, in order to alleviate the grievance it would just and proper that the respondents 2 to 7 and the plaintiff are directed to pay some more amount to the appellant herein and to the plaintiff. 5. Considering all the aspects, I find no reason to interfere with the allotment of plots made by the courts below. But, however, in order to meet the ends of justice, I find that defendants 2 to 7 can be directed to pay Rs. 25,000/- (Rupees R.S.A. No.65 of 2013 **6** twenty five thousand only) and the plaintiff can be directed to pay Rs. 15,000/- ( Rupees fifteen thousand only) to the first defendant (appellant) herein. In the result, this R.S.A. is dismissed except to the extent that defendants 2 to 7 shall pay a sum of Rs. 25,000/- (Rupees twenty five thousand only) to the appellant (first defendant) and the plaintiff shall pay to the first defendant a sum of Rs. 15,000/(Rupees fifteen thousand only). The amount payable as aforesaid shall be in addition to the owelty payable as directed by the courts below. The amount ordered to be paid by this Court shall be a charge on the respective shares allotted to defendants 2 to 7 and the plaintiff. Sd/-N.K. Balakrishnan, Judge ani/ /true copy/ P.S. to Judge R.S.A. No.65 of 2013 **7**