RSA Nos. 962 of 2018, 338 of 2019 and 652 of 2019, High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **THURSDAY, THE 21ST DAY OF NOVEMBER 2019 / 30TH KARTHIKA, 1941** ## **RSA.No.962 OF 2018** **APPEAL AGAINST THE JUDGMENT OF THE ADDITIONAL DISTRICT & SESSIONS JUDGE, VATAKARA DATED 23.06.2018 IN AS 92/2016 ARISING FROM THE ORDER OF THE SUB COURT, VADAKARA DATED 30.09.2014 IN FD IA 1747/1988 IN OS 94/1986** **-----** ## **APPELLANT/APPELLANT/9TH RESPONDENT:** **V.P.INDIRA DEVI D/O. DEVAKI, AGED 58 YEARS, KALYAN, IRINGAL AMSOM, PAYYOLI AMSOM, KOTTAKKAL P.O, KOLAVIPALAM, KOZHIKODE 673521.** **BY ADVS. SRI.BIJU ABRAHAM SRI.B.G.BHASKAR SRI.E.V.LIJEESH** **RESPONDENT/RESPONDENTS/PETITIONERS & RESPONDENTS 1,3,4 & 6 TO 8 & RESPONDENTS 10 TO 19:** - **1 P.KAMALAM, D/O. DEVAKI, AGED 75 YEARS, 184, KARUPPAKKAL COLONY, NR. AVANASI ROAD FLY OVER, COIMBATORE 641018, TAMIL NADU.** **2 K.SUDARSHANAN, S/O. KAMALAM, AGED 55 YEARS,184, KARUPPAKKAL COLONY, NR. AVANASI ROAD FLY OVER, COIMBATORE 641018, TAMIL NADU.** **3 K.INDULEKHA VIDHYA, D/O. KAMALAM, AGED 53 YEARS, DOOR NO.9/7,MARABOYAN STREET, RATHNAIPURA, COIMBATORE, TAMIL NADU-641027.** **4 V.P.RAJENDRAN, S/O. DEVAKI, AGED 66 YEARS, MADALLITHAZHE AMSOM, PUTHUR DESOM, NEAR VISHNU TEMPLE, NUT STREET, VADAKARA-673104.** **RSA.No.962 OF 2018 -2-** - **5 V.P.VASANTHAKUMARI, D/O. DEVAKI, AGED 64 YEARS, BASAND, NEAR MSUP SCHOOL, MUTTUNGAL AMSOM DESOM, MUTTUNGAL WEST, VADAKARA -673106.** - **6 BINDU, D/O.VASANTHAKUMARI, AGED 44 YEARS, BASAND, NEAR MSUP SCHOOL, MUTTUNGAL AMSOM DESOM, MUTTUNGAL WEST, VADAKARA -673106.** - **7 SANDEEP, S/O.VASANTHAKUMARI, AGED 42 YEARS, BASAND, NEAR MSUP SCHOOL, MUTTUNGAL AMSOM DESOM, MUTTUNGAL WEST, VADAKARA -673106.** - **8 V.P. REMA, D/O. DEVAKI, AGED 63 YEARS, GANGA,VADAKARA AMSOM DESOM, PAZHANKAVU, VADAKARA-673104.** - **9 P.DIVAKARAN, S/O. DEVAKI, AGED 69 YEARS, 27/8, PILLAYAR KOIL STREET, RESIDING AT TAMBARAM WEST STREET, TAMBARAM WEST, CHENNAI-600045.** - **10 V.P. RAJAMOHAN, D/O. DEVAKI, AGED 56 YEARS, VAYAPARAMABATH, NADAKKUTHAZHA AMSOM, PUTHUR DESOM, NR,VISHNU TEMPLE, NUT STREET, VADAKARA-673104.** - **11 V.P. JAGANATHAN, S/O. DEVAKI, AGED 52 YEARS, K.D.PACKERS BUILDING, 4TH FLOOR, BEHIND ROYAL PARK HOTEL, NAGAR ROAD, VAVOLI, PUNE-412207,MAHARASHTRA.** - **12 P.K.SRINIVASAN, S/O. POKKAN, AGED 75 YEARS, PALLINDE KEEZHIL, PUDUPPANAM DESOM, NADKKUTHAZHA AMSOM, KOTTAKKADAVU (VIA), PUTHUPPANAM,VADAKARA-673105.** - **13 ARUN KUMAR, S/O. SRINIVASAN, AGED 38 YEARS,PALLINDE KEEZHIL, PUDUPPANAM DESOM, NADKKUTHAZHA AMSOM, KOTTAKKADAVU VIA, PUTHUPPANAM,VADAKARA-673105.** - **14 ARCHANA SRINIVASAN, W/O. SHAJI, AGED 33 YEARS, PULIKKOOL PARAMBATH, THANAKOTTUR P.O, PARAKKADAVU VIA, KOZHIKODE-673509.** **RSA.No.962 OF 2018 -3-** **15 SOUMYA, W/O. SUSHIL KUMAR, AGED 47 YEARS, VARUN VIDEO LAND, OM GANESH NAGAR, EAST VADAVOLLI, 5TH CROSS, COIMABTORE-641041,TAMIL NADU.** **16 AISWARYA, D/O. SUSHIL KUMAR, AGED 24 YEARS,VARUN VIDEO LAND, OM GANESH NAGAR, EAST VADAVOLLI, 5TH CROSS, COIMABTORE-641041,TAMIL NADU.** - **17 AJAY,** **S/O. SUSHIL KUMAR, AGED 19 YEARS, VARUN VIDEO LAND, OM GANESH NAGAR, EAST VADAVOLLI, 5TH CROSS, COIMABTORE-641041,TAMIL NADU.** **R2 BY ADV. N.L KRISHNAMOORTHY, BY ADV. K.LAKSHMINARAYANAN(CAVEATOR) R5-7 BY ADV. SRI.B.KRISHNAN** **R5-7 BY ADV. SRI.R.PARTHASARATHY R9 BY ADV. SRI.P.B.SAHASRANAMAN R9 BY ADV. SRI.T.S.HARIKUMAR R18 BY ADV. R.BINDU (SASTHAMANGALAM)** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20.11.2019, ALONG WITH RSA.338/2019 & RSA.652/2019, THE COURT ON 21.11.2019 DELIVERED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **THURSDAY, THE 21ST DAY OF NOVEMBER 2019 / 30TH KARTHIKA, 1941** ## **RSA.No.338 OF 2019** **AGAINST THE JUDGMENT OF THE ADDL. DISTRICT AND SESSIONS COURT, VATAKARA DATED 23.06.2018 IN AS 144/2015 ARISING FROM THE ORDER OF THE SUB COURT, VATAKARA DATED 30.09.2014 IN FDIA 1747/1988 IN OS 94/1986 OF SUB COURT, VATAKARA** ## **-----** ## **APPELLANT/11TH RESPONDENT/9TH RESPONDENT:** **V.P. INDIRA DEVI, AGED 58 YEARS, D/O. DEVAKI, KALYAN, IRINGAL AMSOM PAYYOLI AMSOM, KOTTAKKAL P.O., KOLAVIPALAM, KOZHIKODE-673521.** **BY ADVS.** **SRI.BIJU ABRAHAM SRI.B.G.BHASKAR SRI.E.V.LIJEESH** **RESPONDENTS/APPELLANT & RESPONDENTS 1, 3, 4, 6 TO 10, 12 TO 19/PETITIONERS 1, 3 & 4 & RESPONDENTS 1 TO 8 & 10 TO 14:** **1 P.DIVAKARAN, S/O. DEVAKI, AGED 69 YEARS, 27/8, PILLAYAR KOIL STREET, RESIDING AT TAMBARAM WEST STREET, TAMBARAM WEST, CHENNAI-600045.** **2 P. KAMALAM, D/O. DEVAKI, AGED 75 YEARS, 184, KARUPPAKKAL COLONY, NR. AVANASI ROAD FLY OVER, COIMBATORE-641018, TAMIL NADU.** **3 K. SUDARSHANAN, S/O. KAMALAM, AGED 55 YEARS, 184, KARUPPAKKAL COLONY, NR. AVANASI ROAD FLY OVER, COIMBATORE-641018, TAMIL NADU.** **4 K. INDULEKHA VIDHYA, D/O. KAMALAM, AGED 53 YEARS, DOOR NO.9/7, MARABOYAN STREET, RATHAIPURA, COIMBATORE, TAMIL NADU-641027.** **RSA.No.338 OF 2019 -2-** - **5 V.P. RAJENDRAN, S/O. DEVAKI, AGED 66 YEARS, MADALLITHAZHE AMSOM PUTHUR DESOM, NEAR VISHNU TEMPLE, NUT STREET, VADAKARA-673104.** - **6 V.P. VASANTHAKUMARI, D/O. DEVAKI, AGED 62 YEARS, BASAND, NEAR MSUP SCHOOL, MUTTUNGAL AMSOM DESOM, MUTTUNGAL WEST, VADAKARA-673106.** - **7 BINDU, D/O. VASANTHAKUMARI, AGED 44 YEARS, BASAND, NEAR MSUP SCHOOL, MUTTUNGAL AMSOM DESOM, MUTTUNGAL WEST, VADAKARA-673106.** - **8 SANDEEP, S/O. VASANTHAKUMARI, AGED 42 YEARS, BASAND, NEAR MSUP SCHOOL, MUTTUNGAL AMSOM DESOM, MUTTUNGAL WEST, VADAKARA-673106.** - **9 V.P. REMA, D/O. DEVAKI, AGED 63 YEARS, GANGA, VADAKARA AMSOM DESOM, PAZHANKAVU, VADAKARA-673104.** - **10 V.P. RAJAMOHAN, D/O. DEVAKI, AGED 56 YEARS, VAYAPARAMBATH, NADAKKUTHAZHA AMSOM PUTHUR DESOM, NR. VISHNU TEMPLE, NUT STREET, VADAKARA-673104.** - **11 V.P. JAGANATHAN, S/O. DEVAKI, AGED 52 YEARS, K.D. PACKERS BUILDING, 4TH FLOOR, BEHIND ROYAL PARK HOTEL, NAGAR ROAD, VAVOLI, PUNE-412207, MAHARASHTRA.** - **12 P.K. SRINIVASAN, S/O. POKKAN, AGED 73 YEARS, PALLINDE KEEZIL, PUDUPPANAM DESOM, NADKKUTHAZHA AMSOM, KOTTAKKADAVU (VIA), PUTHUPPANAM, VADAKARA-673105.** - **13 ARUN KUMAR,** - **S/O. SRINIVASAN, AGED 38 YEARS, PALLINDE KEEZIL, PDUPPANAM DESOM, NADAKKUTHAZHA AMSOM, KOTTAKKADAVU (VIA), PUTHUPPANAM, VADAKARA-673105.** - **14 ARCHANA SRINIVASAN, W/O. SHAJI, AGED 33 YEARS, PULIKKOOL PARAMBATH, THANAKOTTUR P.O., PARAKKADAVU VIA, KOZHIKODE-673509.** **RSA.No.338 OF 2019 -3-** **15 SOUMYA, W/O. SUSHIL KUMAR, AGED 47 YEARS, VARUN VIDEO LAND, OM GANESH NAGAR, EAST VADAVOLLI, 5TH CROSS, COIMBATORE-641041, TAMILNADU.** - **16 AISWARYA,** - **D/O. SUSHIL KUMAR, AGED 24 YEARS, VARUN VIDEO LAND, OM GANESH NAGAR, EAST VADAVOLLI, 5TH CROSS, COIMBATORE-641041, TAMILNADU.** - **17 AJAY, S/O. SUSHIL KUMAR, AGED 19 YEARS, VARUN VIDEO LAND, OM GANESH NAGAR, EAST VADAVOLLI, 5TH CROSS, COIMBATORE-641041, TAMILNADU.** **R2 BY ADV. SRI.K.LAKSHMINARAYANAN R2 BY ADV. SMT.SATHYASHREE PRIYA ESWARAN R3 BY ADV. K.LAKSHMINARAYANAN, BY ADV. SATHYASHREE PRIYA(CAVEATOR)** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 20.11.2019, ALONG WITH RSA.962/2018 & RSA.652/2019, THE COURT ON 21.11.2019 DELIVERED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **THURSDAY, THE 21ST DAY OF NOVEMBER 2019 / 30TH KARTHIKA, 1941** ## **RSA.No.652 OF 2019** **AGAINST THE JUDGMENT AND DECREE IN AS 144/2015 OF THE ADDL. DISTRICT & SESSIONS COURT, VATAKARA, DATED 23.06.2018 AND THE ORDER IN FDIA NO.1747 OF 1988 IN OS 94/1986 DATED 30.09.2014 AND THE ORDER IN REVIEW IA 1157/2014 OF SUB COURT, VATAKARA, DATED 03.06.2015** **-----** ## **APPELLANT/APPELLANT/2ND RESPONDENT:** **P. DIVAKARAN, AGED 69 YEARS, S/O. DEVAKI, 27/8, PILLAYAR KOIL STREET, RESIDING AT TAMBARAM WEST STREET, TAMBARAM WEST, CHENNAI-600045, TAMIL NADU.** **BY ADVS. SRI.P.B.SAHASRANAMAN SRI.T.S.HARIKUMAR** ## **RESPONDENTS/RESPONDENTS/PETITIONER AND RESPONDENTS 1, 3 TO 19:** **1 P. KAMALAM, AGED 73 YEARS,** **D/O DEVAKI, 184, KARUPPAKKAL COLONY, NEAR AVANASI ROAD FLY OVER, COIMBATORE-641018, TAMIL NADU.** **2 MADHUKUMAR, S/O. KAMALAM, 184, KARUPPAKKAL COLONY, NEAR AVANASI ROAD FLY OVER, COIMBATORE-641 018, TAMIL NADU.** **3 K. SUDARSHANAN, AGED 53 YEARS,** **S/O KAMALAM, 184, KARUPPAKKAL COLONY, NEAR AVANASI ROAD FLY OVER, COIMBATORE-641018, TAMIL NADU.** **4 K.INDULEKHA VIDHYA, AGED 51 YEARS, D/O. KAMALAM, DOOR NO.9/7, MARABOYAN STREET, RATHNAIPURA, COIMBATORE, TAMIL NADU-641 018.** |**RSA.No.652**|**OF**|**2019**<br> **-2-**| |---|---|---| |**5**||**SUSIL KUMAR**| |||**AGED 49 YEARS**| |||**S/O. KAMALAM (DIED), VARUN VIDEO LAND, 287 CROSS CUT**| |||**STREET, NEAR S.R.JEWELLERY, PARANAIDU STREET,**| |||**COIMBATORE-641 012.**| |**6**||**V.P.RAJENDRAN,**| |||**AGED 63 YEARS,**| |||**S/O. DEVAKI, MADALLITHAZHE AMSOM, PUTHUR DESOM, NEAR**| |||**VISHNU TEMPLE, NUT STREET, VADAKARA-673104.**| |**7**||**V.P.VASANTHAKUMARI,**| |||**AGED 62 YEARS,**| |||**D/O. DEVAKI, 'BASAND', NEAR MSUP SCHOOL, MUTTUNGAL**| |||**AMSOM DESOM, MUTTUNGAL WEST, VADAKARA-683 104.**| |**8**||**BINDU,**| |||**AGED 42 YEARS,**| |||**D/O. VASANTHAKUMARI, 'BASAND', NEAR MSUP SCHOOL,**| |||**MUTTUNGAL AMSOM DESOM, MUTTUNGAL WEST,**| |||**VADAKARA-673 106.**| |**9**||**SANDEEP,**| |||**AGED 40 YEARS,**| |||**S/O. VASANTHAKUMARI, 'BASAND', NEAR MSUP SCHOOL,**| |||**MUTTUNGAL AMSOM DESOM, MUTTUNGAL WEST,**| |||**VADAKARA-673 106.**| |**10**||**V.P.REMA,**| |||**AGED 61 YEARS,**| |||**D/O. DEVAKI, 'GANGA', VADAKARA AMSOM DESOM,**| |||**PAZHANKAVU, VADAKARA-673 104.**| |**11**||**V.P. INDIRA DEVI,**| |||**AGED 56 YEARS,**| |||**D/O. DEVAKI, 'KALYAN', IRINGAL AMSOM PAYYOLI AMSOM,**| |||**KOTTAKKAL P.O., KOLAVIPALAM, KOZHIKODE-673 521.**| |**12**||**V.P.RAJAMOHAN,**| |||**AGED 54 YEARS,**| |||**S/O. DEVAKI, VAYAPARAMBATH, MADAKKUTHAZHA AMSOM**| |||**PUTHUR DESOM, NEAR VISHNU TEMPLE, NUT STREET,**| |||**VADAKARA-673 104.**| |**13**||**V.P.JAGANATHAN,**| |||**AGED 50 YEARS,**| |||**S/O. DEVAKI, K.D.PACKERS BUILDING, 4TH FLOOR, BEHIND**| |||**ROYAL PARK HOTEL, NAGAR ROAD, VAVOLI, PUNE-412207,**| |||**MAHARASHTRA.**| ## **RSA.No.652 OF 2019 -3-** - **14 P.K.SRINIVASAN, AGED 73 YEARS, S/O. POKKAN, PALLINDE KEEZIL, PUDUPPANAM DESOM, NADKKUTHAZHA AMSOM, KOTAKKADAVU VIA, PUTHUPPANAM, VADAKARA-673 105.** **15 ARUN KUMAR, AGED 36 YEARS, S/O. SRINIVASAN, PALLINDE KEEZIL, PUDUPPANAM DESOM, NADKKUTHAZHA AMSOM, KOTTAKKADAVU VIA, PUTHUPPANAM, VADAKARA-673 105. 16 ARCHANA SRINIVASAN, AGED 31 YEARS, W/O SHAJI, PULIKKOOL PARAMBATH, THANAKOTTUR P.O., PARAKKADAVU VIA, KOZHIKODE-673509. 17 SOUMYA, AGED 46 YEARS, W/O SUSHIL KUMAR, VARUN VIDEO LAND, OM GANESH NAGAR, EAST VADAVOLLI, 5TH CROSS, COIMBATORE-641 041, TAMIL NADU. 18 AISWARYA, AGED 23 YEARS, D/O. SUSHIL KUMAR, VARUN VIDEO LAND, OM GANESH NAGAR, EAST VADAVOLLI, 5TH CROSS, COIMBATORE-641 041, TAMIL NADU. 19 AJAY, AGED 18 YEARS, S/O. SUSHIL KUMAR, VARUN VIDEO LAND, OM GANESH NAGAR, EAST VADAVOLLI, 5TH CROSS, COIMBATORE-641 041, TAMIL NADU.** **R1, R3-4, R17-19 BY ADV. SRI.N.L.KRISHNAMOORTHY R1, R3-4, R17-19 BY ADV. SRI.K.LAKSHMINARAYANAN R1, R3-4, R17-19 BY ADV. SMT.SATHYASHREE PRIYA ESWARAN R7-9 BY ADV. SRI.B.KRISHNAN R7-9 BY ADV. SRI.R.PARTHASARATHY R11 BY ADV. SRI.BIJU ABRAHAM R11 BY ADV. SRI.E.V.LIJEESH** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 20.11.2019, ALONG WITH RSA.962/2018 & RSA.338/2019, THE COURT ON 21.11.2019 DELIVERED THE FOLLOWING:** ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = RSA Nos.962 of 2018, 338 & 652 of 2019 = = = = = = = = = = = = = = = = = = Dated this the 21[st] day of November, 2019** ## **JUDGMENT** The final decree in a suit for partition is assailed by defendants 6 and 13, who are respondents 2 and 9 in the final decree application. The first appeals preferred by them were dismissed, affirming the judgment of the trial court. 2. Heard learned counsel Sri.B.G.Bhaskar and Sri.T.S.Harikumar on behalf of the appellants and Sri.B.Krishnan, Sri.K.Lakshminarayanan and Sri.R.Bindu Sasthamangalam learned counsel on behalf of the respondents on the following substantial questions of law:- “(a) When a sharer is being deprived of in specie allotment of property and the share is equalized by payment of owelty, is not the sharer entitled to have the value of the properties RSA Nos.962 of 2018, 338 & 652 of 2019 :- 2 :- ## fixed at the market value? **==> picture [251 x 14] intentionally omitted <==** made by the courts below depriving in specie allotment to the appellants sustainable?” 3. According to the learned counsel for the appellants they are only allotted lesser extent than they are entitled to as per the preliminary decree and the deficit in value is directed to be equalized by way of payment of owelty. In specie division is the rule and equalization by owelty is the exception. Secondly it is contended that, the value of the property fixed is lower than the fair value fixed by the Government. This prejudicially affects their interests. 4. Relying on the decision of the Apex Court in Lal Chand v. Union of India [AIR 2010 SC 170] and a Division Bench of this Court in State of Kerala v. Thomas and Anr. [2016 (1) KHC 400] , it is contended that the Commissioner went wrong in not adopting the fair value as fixed by the Government, to fix the market value of the property. It is seen that RSA Nos.962 of 2018, 338 & 652 of 2019 :- 3 :- the value adopted by the Commissioner is less than the fair value. No doubt when a co-sharer is being deprived of property or a portion thereof and is being compensated by payment of owelty, he is entitled to receive the market value of the property. Of course, it may not be necessary to have the value fixed at the fair value fixed by the Government. But, in the absence of any evidence to the contrary, it could only be taken that the same represents the market value. As noticed supra, a person who is being deprived of property in the allotment and is compelled to accept owelty, is entitled to get the market value of the property. The value fixed presently is below the fair value. No specific reason is attributed for the same. Therefore the valuation of the properties need a re-look by the trial court. Substantial question of law no.(a) is thus answered in favour of the appellants. 5. The learned counsel for the appellants contend that in decrees for partition, in specie division is the rule and payment of owelty is an RSA Nos.962 of 2018, 338 & 652 of 2019 :- 4 :- exception. As far as possible, payment of owelty should have been avoided and the appellants should have been allotted sufficient extent of immovable property. The allotment made is not proper, is the contention. 6. The sixth defendant filed objections to the Commissioner's Report whereas the 13[th] defendant did not. Sri.B.G.Bhaskar, the learned counsel for the appellant would contend that he is entitled to challenge the Commissioner's Report even though no objections were filed to the same. Of course, a party may be entitled to substantiate before the court or even the court is entitled to look into the correctness or otherwise of the Commissioner's Report. Be that as it may, sixth defendant having filed objections to the Commissioner's Report much deliberation on the same is not necessary. 7. In the case at hand, there are several items of properties, all of which are of different value. The objections filed to the Commissioner's Report by the 6[th] defendant was considered in detail by the trial court. The trial court found no merit in the RSA Nos.962 of 2018, 338 & 652 of 2019 :- 5 :- contentions and dismissed the application. The same was challenged before this Court in OP 2130/14. As per judgment dated 22.09.2014 this Court dismissed the original petition and upheld the order of the trial court. This Court held thus:- “As regards the valuation of the plots the commissioner has in his report stated how he arrived at the value. He had probably divided the plots into three sets of plots namely ABC. The court below has noticed that in the light of facts and circumstances of the case it is only possible method that could be adopted and no prejudice has been caused for the said act committed by the commissioner. It is interesting to note that except for saying that the commissioner has not complied with the order, there is no averment in the original petition as to what exactly is the prejudice caused to the petitioner by accepting the report filed by the commissioner. It will be possible always to find out some error or other in the commission report filed before the court. There cannot be a perfect report. Under such circumstances it is for the petitioner to show that substantial prejudice is RSA Nos.962 of 2018, 338 & 652 of 2019 :- 6 :- caused to him due to the acceptance of the report. Even in the objection filed, there is no mention of any particular injury caused or loss sustained.” 8. The lower appellate court appreciated the Commissioner's Report, the evidence of the Commissioner as PW1 and also that of the sixth defendant as PW2, which was recorded on the application to set aside the Commissioner's Report. The lower appellate court took note of the fact that, the Commissioner made the allotments considering the importance of the locality, proximity to the road, lie of the properties etc. Though item no.1 abuts a road, it is not the main road. Item nos.2 and 3 abut the Vadakara - Lokanarkavu public road. Plaint 'B' also abuts a tarred public road. The properties are valued differently on the above basis. It is taking note of the above factors that the division was made by the Commissioner. The varying locational importance of the properties were taken into consideration by the Commissioner. In view of the difference in the RSA Nos.962 of 2018, 338 & 652 of 2019 :- 7 :- potential of the properties, parties cannot insist for allotment of equal extent. The lower appellate court noticed the fact that the properties allotted to appellants are in item nos.2 and 3 of 'A' schedule which have more importance since it abuts the Vadakara-Lokanarkavu public road. Considering the commercial importance of the property allotted to the appellants they could not have any grievance that the mode of allotment made by the Commissioner is not correct and that only a lesser extent of property is allotted to them. It cannot be found that the allotment made suffers from any vice or perversity or failure to take note of any material aspects. The lower appellate court has also found allotment to be just and equitable. The challenge against the impugned decree and judgment on the ground of mode of allotment, fails. Substantial question of law no.(b) is thus answered against the appellants. 9. It is further contended that the 12[th] defendant and the plaintiff are no more and that a supplemental preliminary decree is to be passed re- RSA Nos.962 of 2018, 338 & 652 of 2019 :- 8 :- allotting the shares to the parties consequent to such demise and enlargement of shares. This requires a re-allocation of the properties in final decree. Therefore, the final decree is to be set aside and the trial court is to be directed to pass a supplemental preliminary decree and a fresh final decree, submits the learned counsel. The suit is of the year 1986. Preliminary decree was passed on 27.11.1987. The said decree though interfered with by the first appellate court was restored by this Court. The final decree application is of the year 1988. I do not think it just or equitable to deprive the parties of the fruits of the litigation any longer, harping on the subsequent enlargement of shares. This is especially so since it appears that there is dispute regarding devolution of the rights of the 12[th] defendant. Any interference with the allotments at this stage would in fact lead to travesty of justice to the parties who had been litigating since the year 1986 for separate allotment of their shares in the properties. It is brought to my notice that some of the sharers have RSA Nos.962 of 2018, 338 & 652 of 2019 :- 9 :- taken delivery and have even alienated portion of the property allotted. I decline to interfere with the decree and judgment of the courts below on the ground urged. However, I leave open the rights of the parties to seek for passing of supplemental preliminary and final decree in the present suit itself regarding the shares of the deceased 12[th] defendant and the plaintiff. 10. In the result, the appeals are allowed in part. The judgment and decree of the courts below are modified as hereunder:- - (i) The allotment of properties to the respective sharers by the courts below is upheld. - (ii) The valuation of the properties as adopted by the courts below is set aside. - (iii) The trial court shall redetermine the valuation of the properties and fix the owelty amounts payable, afresh and pass a decree accordingly. - (iv) The sharers shall be entitled to take delivery of the respective shares allotted RSA Nos.962 of 2018, 338 & 652 of 2019 :- 10 :- to them under the impugned final decree and deal with the same, the allotment of which is being confirmed in this judgment. - (v) Any of the parties shall be entitled to seek for passing of supplementary preliminary and final decree with respect to the devolution of shares consequent on the demise of the plaintiff and the 12[th] defendant. Trial court shall issue notice for appearance to the parties. I am sure that every endeavour will be made by the trial court to have the value refixed and decree passed in terms of clause (iii) above as expeditiously as possible, preferably within a period of three months from the date of receipt of a copy of this judgment. **Sd/SATHISH NINAN JUDGE** kns/- //TRUE COPY// P.S. TO JUDGE