T. Madhura Meenakshi v. T. Kamalam, Kunjumadhavi, and T. Sulochana

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **THURSDAY, THE 30[TH] DAY OF NOVEMBER 2023 / 9TH AGRAHAYANA, 1945** **RSA NO. 107 OF 2017** **AGAINST THE DECREE AND JUDGMENT DATED 20.03.2012 IN OS 120/2011 OF PRINCIPAL MUNSIFF COURT, PALAKKAD** **AGAINST THE DECREE AND JUDGMENT DATED 27.06.2016 IN AS 143/2012 OF I ADDITIONAL DISTRICT COURT, PALAKKAD** ## **APPELLANT/APPELLANT/2nd DEFENDANT:** **T.MADHURA MEENAKSHI, AGED 53 YEARS D/O. THEETHI, RESIDING AT MUNDAYAMPADAM VEEDU, PERUVEMBU, KODUVAYUR POST, PALAKKAD DISTRICT . BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD** ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS/1ST DEFENDANT:** - **1 T.KAMALAM, D/O. THEETHI, RESIDING AT NADUVINCHIRA VEEDU, PUDUNAGARAM POST, PALAKKAD - 678 503.** - **2 KUNJUMADHAVI, D/O. THEETHI, RESIDING AT SHEEBA NIVAS, CHEMBOTTUKULAMBU, KODUVAYUR POST, CHITTUR TALUK,PALAKKAD - 678 501.** - **3 T. SULOCHANA, D/O. THEETHI, RESIDING AT KANDATHKALAM HOUSE, THIRUVAKKAD, KANNADI POST, PALAKKAD - 678 701.** **BY ADVS. SRI.LIJU. M.P FOR R1 & R2 SRI.JACOB SEBASTIAN FOR R3 SRI.SAJAN VARGHESE K. FOR R1 & R2** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON** ## **30.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA NO. 107 OF 2017** **2** ## **CR** ## **JUDGMENT** Dated this the 30[th] day of November, 2023 This regular second appeal has been filed under Section 100 read with Order XLII Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC, for short), challenging judgment and decree dated 27.06.2016 in A.S.No.143/2012 on the files of the District Court, Palakkad, arose out of judgment and decree dated 20.03.2012 in O.S.No.120/2011 on the files of the Principal Munsiff's Court, Palakkad. The appellant herein is the 2[nd] defendant in the above suit and the respondents are the plaintiffs and the first defendant. 2. Heard the learned counsel for the appellant as well as the learned counsel appearing for the respondents. 3. I shall refer the parties in this regular second appeal as 'plaintiffs' and 'defendant No.1' and 'defendant No.2' for convenience. **RSA NO. 107 OF 2017** **3** 4. In this matter, suit was filed by the plaintiffs seeking partition of the plaint schedule property by metes and bounds on the assertion that plaintiff Nos.1 and 2 and defendant Nos.1 and 2 are entitled to get 1/4[th] share each in the plaint schedule property. 5. Defendant No.2 raised contention before the trial court that she had spent Rs.1,00,000/- (Rupees one lakh only) for the repair works of the dwelling house and the dwelling house was constructed by her father. Accordingly, defendant No.2 prayed for allotting the dwelling house in her favour independently. 6. On perusal of the evidence, the trial court granted decree as under: “In the result, the suit decreed. A preliminary decree for partition is passed as follows: a) Plaintiffs 1 and 2, defendants 1 and 2 are declared entitled to 1/4[th] share each over the plaint schedule property. b) The dwelling house in plaint schedule property shall be allowed to the share of the 2[nd] defendant. But **RSA NO. 107 OF 2017** **4** the dwelling house is liable for valuation and distribution among all the co-owners. c) Other equities, mesne profits and reservations are ordered to be adjudicated in the final decree proceedings. d) The cost of litigation is to be borne from the estate. e) Any of the co-owners is entitled to apply for passing final judgment. The allotment to the defendants is subject to payment of court fee.” 7. Although A.S.No.143/2012 was filed before the District Court, Palakkad, the District Judge, on reappreciation of evidence, confirmed the finding of the trial court and accordingly, the appeal was dismissed. 8. While admitting this appeal, my learned predecessor, as per order dated 08.03.2017, formulated the following substantial questions of law: - _“i) Whether the courts below are right in relegating the claim of reservation in respect of a dwelling house in the plaint schedule property to be determined in the final decree proceedings?_ _ii) Whether the court below erred in not reserving the dwelling house in favour of the appellant in the light of the evidence available in the case?”_ **RSA NO. 107 OF 2017** **5** 9. While arguing the case, the learned counsel for defendant No.2 submitted that defendant No.2 is aggrieved in the matter whereby the trial court, after allotting the house in favour of defendant No.2, held that the dwelling house also is liable for valuation and distribution among all the coowners. It is submitted by the learned counsel for defendant No.2 that in the decision in **Subhadra Amma v. Viswanatha Bose Asan,** reported in **(1971 KHC 368)** , this Court considered the claim by defendants 43 and 44 in the building, situated in B schedule item No.1 therein, and held in paragraph No.11 that, _in a suit for partition, equitable considerations could weigh with the court in allotting the building to the member who had put up the building without reckoning the value of the building as a common asset._ 10. Therefore, it is argued that in this case, admittedly, the 2[nd] defendant has been residing in the dwelling house and has been maintaining the same. Therefore, the dwelling house should be allotted in favour of defendant No.2, without **RSA NO. 107 OF 2017** **6** including the same for partition in any manner. 11. Opposing this contention, the learned counsel for the plaintiffs submitted that in the decision in **Pathumma and Others v. Muhammed** reported in **(2015 (1) KHC 756 : 2015 (1) KLJ 650 : ILR 2015 (1) Ker. 941 : 2015 (1) KLT SN 161)** , this Court considered the parameters governing partition and held in paragraph No. 6 as under: “6. The concept of reservation of property involved in a suit for partition in favour of a sharer (or a co-owner, as the case may be) is to be understood clearly. It amounts to exclusion of certain property from the partible assets. In a partition suit, at the preliminary decree stage, the Court is called up to adjudicate the partibility of assets involved in the suit, the share of each of the parties, whether any of the parties is entitled to claim exclusion of any property from division etc. Normally, in order to claim exclusion of an item from partition the sharer/ co-owner claiming such a right will have to establish his exclusive right over the property. The law presumes that each coowner is the absolute owner in respect of each part and parcel of the land. Unless a co owner gets consent from other co-owners, he cannot effect improvements in the property so as to claim **RSA NO. 107 OF 2017** **7** reservation of the asset to him at the time of division. If he effects improvements in a co-ownership property, the law presumes that it is for the benefit of all and therefore, he cannot claim reservation of the same to the exclusion of others. So much so, the burden is purely on the person making a claim for reservation that he effected improvements in the coownership property with the consent of others, either expressly or impliedły, agreeing to reserve the same to him at the time of division. The Court adjudicating the rights of the parties will have to consider at the preliminary decree stage whether a particular property, over which one of the parties claim reservation, is available for partition or not. If a party claiming reservation of an item of property included in the suit proves that the property is not available for partition, the Court at the stage of preliminary decree will have to consider the plea and if it is found allowable, the item should be discounted from the list of partible property. The adjudication regarding reservation of an item in favour of a co-owner or in other words, the exclusion of a property from partition, is a matter based purely on legal principles. Merely on an equitable principle, such an adjudication cannot be done. If one sharer/ co owner raises a contention that a particular property or any structure thereon is to be allotted to him for his use and it is **RSA NO. 107 OF 2017** **8** unlikely to cause difficulties to other sharers, that plea is based on equity and the Court will have to consider whether the request of that party can be allowed without affecting the legal or equitable rights of other sharers / co-owners. Well settled is the principle that a Court dealing with a partition suit can decide not only legal rights arising in the case, but also equitable principles for doing complete justice between the parties. In a claim for reservation, the burden is on the person making the claim to establish that for valid reasons the property is to be excluded from the partible assets. The essential distinction between the claim for reservation and claim based on equity for allotting a particular portion of the property or a structure thereon to a sharer lies in the fact that if the claim for reservation is proved, it results in exclusion of the property from partition and the claim for working out equity will only result in allotment of the property in favour of that person, which will certainly be included in the partible assets. That apart, the claim for reservation shall be considered while passing a preliminary decree and the equities regarding allotment may be relegated to that final decree proceedings. Viewing from this angle, I am of the view that the observation by the Trial Court and the lower Appellate Court that the respondent is entitled to reservation of the house in dispute is **RSA NO. 107 OF 2017** **9** legally not correct and proper. At the most, he can only claim an equitable relief of allotting that portion of the land along with the house to his share after valuing the entire assets.” 12. He also placed another decision of this Court in **Santhosh Kumar v. Baby,** reported in **2007 (2) KLT 728** to re-iterate the said contention and in the said case, this Court held as under: “The plaint schedule property is having an extent of 14 cents. There is a house in the property. Even assuming that the second defendant had spent some amount for renovation of the house, he is not entitled to get reservation of the house in his favour. The second defendant has not proved that he has obtained express consent of the other sharers to make improvement. Moreover, improvement to an existing building is not a ground for claiming reservation of the entire house. At best, the second defendant could claim only an equitable consideration for the allotment of the house to his share after valuing the building. One co-sharer cannot build upon a common property in such a way as to defeat the legitimate rights of other co-sharers. When the extent of the property is small, such construction would make it impossible to partition the property in specie among **RSA NO. 107 OF 2017** **10** all the co-sharers. The law does not recognise any such right in one co-sharer to make improvement in co-ownership property without express consent granted by other co-owners. The entitlement to get a share in a co-ownership property is a very valuable right and it cannot be defeated by one co-owner by constructing a building in it without the consent of other co-owners. He cannot thereafter claim to allot the entire property including the building, without valuing the structure. Such unauthorised acts of a coowner in a co-ownership property would defeat the rights of other co-sharers who have equal share in the property. The situation would be grave if the extent of the property is small.” 13. In this case, defendant No.2 is claiming independent right/reservation over the dwelling house on the principles of equity and the basis for claiming such reservation is that defendant No.2 spent money for maintaining the house, including the fence. In the written statement, the contention was that she had spent Rs.1 lakh for the same. But the said contention not substantiated in evidence. **RSA NO. 107 OF 2017** **11** 14. In this context, it is relevant to hold that if there are improvements in a co-ownership property, the said construction shall be presumed for and on behalf of all the co-owners and deviation by way of reservation therefrom, applying the equity principles can be considered in an appropriate case, where positive evidence should have been adduced to hold that the reservation is sought for in relation to the house or an item which was constructed and maintained by the party claiming equitable right on reservation. In the instant case, even though defendant No.2, being a resident of the dwelling house, claimed that she had spent Rs.1 lakh for repairs of the dwelling house, her admitted case is that the house was one constructed by her father. Further no positive evidence adduced to prove the expenses as contended. In such a case, on the principles of equity and reservation, defendant No.2 could not succeed to get the dwelling house allotted to her, excluding the same for the purpose of valuation and distribution among all other co- **RSA NO. 107 OF 2017** **12** owners. 15. Answering the first substantial question of law, as to whether the courts below right in relegating the claim of reservation in respect of the dwelling house in the plaint schedule property to be determined in the final decree proceedings, on perusal of the preliminary decree passed by the trial court, in fact, the trial court did not reserve the right on the dwelling house in the plaint schedule property to be determined in the final decree proceedings. The trial court, in categorical terms, allotted the dwelling house in the plaint schedule property in favour of defendant No.2/appellant and it has been provided that “the dwelling house in the plaint schedule property shall be allotted to the share of defendant No.2”. But the learned Munsiff held further that the dwelling house is liable for valuation and distribution among all the coowners. 16. Coming to the second substantial question of law, as I have already pointed out, no evidence let in by **RSA NO. 107 OF 2017** **13** defendant No.2 to establish reservation or absolute right over the dwelling house, so as to exclude the same from the purview of partition and therefore, it could not be held that the courts below erred in not reserving the dwelling house in favour of the appellant segregating the same from the purview of partition. 17. In view of the above discussion, the finding of the trial court to the effect that the dwelling house to be allotted to the share of defendant No.2 shall be liable for valuation and distribution among all the co-owners is fully justified. The appellate court also concurred the said finding for the above reasons. 18. Holding so, this appeal is found to be meritless and is accordingly, dismissed, confirming the decree and judgment in A.S.No.143/2012 dated 27.06.2016 passed by the appellate court. 19. All interlocutory orders stand vacated and all interlocutory applications pending in this regular second **RSA NO. 107 OF 2017** **14** appeal stand dismissed. Registry shall inform this matter to the trial court as well as the appellate court, forthwith. Sd/- **A. BADHARUDEEN JUDGE** nkr **RSA NO. 107 OF 2017** **15** ## **APPENDIX OF RSA 107/2017** ## **RESPONDENT ANNEXURES** |**Annexure**|**1**|**TRUE PHOTOGRAPHS OF THE CONSTRUCTIONS**| |---|---|---| |||**IN THE PLIANT SCHEDULE PROPERTY.**| |**Annexure**|**2**|**ORIGINAL OF THE COMPLAINT DATED**| |||**02.07.23 ADDRESSED TO THE SUB**| |||**INSPECTOR OF POLICE, PUDUNAGARAM**| |||**POLICE STATION, PALAKKAD.**| |**Annexure**|**3**|**ORIGINAL OF THE RECEIPT DATED**| |||**02.07.23 ISSUED FROM PUDUNAGARAM**| |||**POLICE STATION, PALAKKAD.**|