Sumiyath vs Muthubeevi, Saidali Koya Thangal and Hannath (RFA.No.513 of 2016)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **FRIDAY, THE 28TH DAY OF JUNE 2019 / 7TH ASHADHA, 1941** # **RFA.No.513 of 2016** **AGAINST THE ORDER IN FDIA 222/2015 IN OS 196/2012 of SUB COURT, VADAKARA DATED 23-05-2016** ## **APPELLANT/PLAINTIFF:** **SUMIYATH AGED 35 YEARS, W/O MOHAMMED KOYA THANGAL, NO JOB, AL ABRAR, AYANCHERI POST, VIA PONMERI, PIN – 673541, AYANCHERI AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, REPRESENTED BY POWER OF ATTORNEY HOLDER, KUNHISEETHI, S/O KUNHIKOYA, AGED 54 YEARS, ERAVATH HOUSE, AYANCHERI POST, THIRUVALLOOR VIA, VATAKARA TALUK, KOZHIKODE DISTRICT.** **BY ADVS. SRI.K.GOPALAKRISHNA KURUP (SR.) SMT.DEEPTHI S.MENON SRI.K.SURESH** ## **RESPONDENTS/DEFENDANTS:** > 1 **MUTHUBEEVI, D/O KUNHIKOYA THANGAL, AGED 59 YEARS, NO JOB, OTHAYOTH HOUSE, AYANCHERI POST, THIRUVALLOOR VIA, VATAKARA TALUK, KOZHIKODE DISTRICT 673 541.** 2. **SAIDALI KOYA THANGAL, S/O POOKOYA THANGAL, AGED 69 YEARS, NO JOB, OTHAYOTH HOUSE, AYANCHERI POST, THIRUVALLOOR VIA, VATAKARA TALUK, KOZHIKODE DISTRICT 673 541.** 3. **HANNATH, D/O MUHAMMED KOYA THANGAL, OTHAYOTH HOUSE, AUYANCHERI POST, THIRUVALLOOR VIA, VATAKARA TALUK, KOZHIKODE DISTRICT 673 541. BY ADVS. SRI.B.KRISHNAN SRI.R.PARTHASARATHY** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 28.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RFA.No.513 of 2016** **2** ## **JUDGMENT** This appeal is at the instance of the plaintiff, challenging a final decree for partition. 2. The plaint schedule property is 20 and odd cents with a residential building thereon. The plaintiff is the second wife of one Muhammed Koya Thangal. His first wife, Sainaba died on 01.11.2003. It is thereafter that Thangal married the plaintiff on 28.12.2003. The third defendant is the daughter born to Thangal and Sainaba. Defendants 1 and 2 are the parents of Sainaba. The land was acquired jointly by Thangal and Sainaba. Thereafter a residential building was constructed therein. In the year 2009, Thangal assigned his rights over the property in favour of the plaintiff. It is for partition of the said share that the suit is laid. 3. As per the preliminary decree, the following are the shares allotments: **RFA.No.513 of 2016** **3** Plaintiff – 32/52 shares Defendants 1 and 2 - 8/52 shares 3[rd] defendant – 12/52 shares 4. The trial court deputed a Commissioner who as requested by the rival sides filed a report with alternative suggestions, allotting the house to the plaintiff and another allotting the house to third defendant. Final decree was passed allotting the house in favour of the third defendant. Aggrieved, the plaintiff is in appeal. 5. Heard learned senior counsel Sri.K.Gopalakrishna Kurup on behalf of appellant– plaintiff and Sri.B.Krishnan, learned counsel for the respondents-defendants. 6. It is not in dispute between the parties that in-specie division of the plaint schedule property is not practicable. Before the trial court the plaintiff file I.A No.855 of 2015 seeking permission to purchase the shares of the defendants. Treating the said application to be one filed under Section 2 of the **RFA.No.513 of 2016** **4** Partition Act, the third defendant filed I.A No.966 of 2015 under Section 3 of the Partition Act seeking leave to buy the share of the plaintiff. The trial court dismissed both the applications and applying Section 4 of the Partition Act directed allotment of the property to the defendants on payment of owelty to the plaintiff. 7. A reading of the prayer in I.A No.855 of 2015 shows that no request for sale of the property and distribution of the proceeds. Evidently the application cannot be considered as one under Section 2 of the Partition Act. Since I.A No.855 of 2015 is not one under Section 2, I.A No.966 of 2015 filed under Section 3 of the Partition Act is not maintainable. Suffice to notice that Sections 2 and 3 of Partition Act does not come into play. 8. While allotting the property with the house to the third defendant, the trial court applied the provisions of Section 4 of the Partition Act. Section 4(1) of the Partition Act reads thus: **RFA.No.513 of 2016** **5** “4. Partition suit by transferee of share in dwelling-house.- (1) Where a share of a dwelling-house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition, the Court shall, if any member of the family being a shareholder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder, and may give all necessary and proper directions in that behalf.” 9. According to the trial court, the plaintiffassignee of share, is not a member of the family and since the third defendant who is a member of the family has sought for allotment of the property, is **RFA.No.513 of 2016** **6** entitled to the same. 10. The marriage between the plaintiff and Thangal was on 28.12.2003. The assignment of the rights of Thangal in favour of the plaintiff was only in the year 2009. In **Khirode Chandra v. Saroda Prosad, 7 Ind Cas 436(Cal)** Sir Ashutosh Mukherjee made a classical exposition of the meaning of the term 'family' as follows: “The word “family”, as used in the Partition Act ought to be given a liberal and comprehensive meaning, and it does include a group of persons related in blood, who live in one house or under one head or management. There is nothing in the Partition Act to support the suggestion that the term “family” was intended to be used in a very narrow and restricted sense, namely, a body of persons who trace their descent **RFA.No.513 of 2016** **7** from a common ancestor.” 11. This was followed in **Latifannessa Bibi v. Abdul Rahman (AIR 1934 Cal 202), Mahomed Sulaiman Khan v. Mt.Amir Jan (AIR 1941 All 281), Paluni Dei v. Rathi Mallick and others (AIR 1965 Orissa 111)** . In **Aley Hassan v. Toorab Hussain and others (AIR 1958 Patna 232)** it was held that the expression 'family' in Section 4 of the Partition Act must be construed in a very wide sense and is not to be restricted to persons tracing their descend from a common ancestor. It was observed that the principle underlying the section appears to be maintain the integrity of a body of people knit together by the tie of common residence. I am in respectful agreement with th eview expressed by the learned judges. Sir Mulla in his treatise on Mohammedan law, has authored thus: “265. Effects of valid (sahih) marriage.- A valid marriage confers upon the wife the right to dower, maintenance and residence in her husband's house, **RFA.No.513 of 2016** **8** impose on her the obligation to be faithful and obedient to him, to admit him to sexual intercourse, and to observe the _iddat_ . It creates between the parties prohibited degrees of relation and reciprocal rights of inheritance.” 12. Therefore, it needs no further deliberation to hold that the plaintiff on her marriage with Thangal becomes a member of his family. The transfer of the rights of Thangal in favour of the plaintiff was while she is a member of such family. The purport of the second part of Section 44 of the Transfer of Property Act dealing with member of family, is also similar, and hence needs no separate discussion. I am unable to agree with the finding of the trial court that the plaintiff is not a member of the family and hence not entitled to allotment of the dwelling house. The trial court was not right in having dis-entitled the plaintiff for allotment of the property on the said **RFA.No.513 of 2016** **9** ground. 13. The learned counsel Sri.B.Krishnan would submit that, at any rate, the plaintiff could not be treated as a member of the family of the 3[rd] defendant. The 3[rd] defendant was a minor at the time of the assignment and even at the time of the suit. She is only a member of the family of Thangal. On marriage, the plaintiff-assignee also became a member of that family. Therefore, the contention of the learned counsel can only be turned down. 14. The allotment and division of properties in the final decree proceedings mainly falls within the realm of equity. Though either sides had raised various claims under the head of equity seeking allotment of the property, the trial court has not considered the same. Though the same were adverted to, it was only to find that as of now both the plaintiff and the 3[rd] defendant are residing in that house. I notice that there is no challenge by either of the parties as against the valuation fixed by the **RFA.No.513 of 2016** **10** Commissioner. Therefore, the trial court need to consider as to under equity who is entitled to allotment of the property. The learned counsel for the appellant submits that there may an auction among the sharers. These are all matters open to be raised before the trial court. 15. In the result, this appeal is allowed. The judgment and decree of the trial court are set aside. The matter is remanded back to the trial court for disposal denovo but subject to the finding regarding the applicability of Section 4 of the Partition Act as held supra. Both sides shall be afforded opportunity to adduce further evidence, if sought for. The trial court shall make every endeavour to have the final decree passed within a period of 3 months from the date of receipt of a copy of this judgment. No costs. **Sd/- SATHISH NINAN** **JUDGE** vdv