UMMER KUNHI v. KALLUKETTIYA PEEDIKAYIL KURUKKAN PADINHAREPURAYIL HAMED

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH TUESDAY, THE 25TH DAY OF SEPTEMBER 2012/3RD ASWINA 1934 RSA.No. 923 of 2012 () ---------------------AS.104/2009 of DISTRICT COURT,THALASSERY IA NO.1640/1991 IN OS.73/1949 of ADDL.SUB COURT, THALASSERY APPELLANT(S)/APPELLANT NO.2/RESPONDENT 13: ----------------------------------------- UMMER KUNHI, AGED 63 YEARS, RETIRED TEACHER, RESIDING AT AZHIKODE AMSOM, DESOM, KANNUR TALUK & DISTRICT. BY ADVS.SRI.B.KRISHNAN SRI.R.PARTHASARATHY SRI.RAJESH V.NAIR RESPONDENT(S)/RESPONDENTS/PETITIONERS: -------------------------------------- ## **KALLUKETTIYA PEEDIKAYIL KURUKKAN PADINHAREPURAYIL HAMED, (P1) (DIED)** 1. KALLUKETTIYA PEEDIKAYIL KURUKKAN PADINHAREPURAYIL KUNHALIYUMMA D/O.MAMMAD, AGED 63 YEARS, NO OCCUPATION AZHIKODE AMSOM AND DESOM, KANNUR TALUK & DISTRICT - 670009. 2. BROTHER -DO- MAMMED KUNHI,, AGED 43 YEARS TRADER, RESDING AT -DO- -DO- 3. BROTHER -DO- ABDULLAKUNHI, AGED 40 YEARS TRADER, RESIDING AT -DO- -DO- 4. BROTHER -DO- ABDUL JABBAR,, AGED 40 YEARS - -DO- -DO- ## **P.P.RUKHIYA, (P6) (DIED)** 5. P.P. HAMSU, S/O.RUKHIYA,AGED 44 YEARS, BUSINESS, RESIDING AT AZHIKODE AMSOM, DESOM-670009. 6. BROTEHR MUHAMMED ASHRAF, AGED 40 YEARS BUSINESS, -DO- -DO- 7. SISTER SAFOORA,, AGED 37 YEARS NO OCCUPATION, -DO -DO- RSA.No. 923 of 2012 2 8. BROTHER SHAFEEQUE,, AGED 35 YEARS COMPANY EMPLOYEE, -DO- -DO- 9. SISTER SAINABA, AGED 34 YEARS NO OCCUPATION, -DO- -DO- 10. BROTHER MUHAMMED KASIM,, AGED 27 YEARS BUSINESS, -DO- -DO- ## **K.P.MOIDU @ MOIDEENKUTTY, (R1) (DIED) K.P.AAMU, (R2) (DIED)** 11. BROTHER ABDUL KHADER,, AGED 91 YEARS, BUSINESS, RESIDING AT AZHIKODE AMSOM, DESOM, KANNUR-670009. ## **K.P.MARIYAM, (R4) (DIED)** 12. K.P. MAMMED KUNHI, S/O.AYISU,, AGED 58 YEARS, NO OCCUPATION, AZHIKODE AMSOM AND DESOM, KANNUR.670009. ## **K.P.SAYINAVA, D/O.AYISU, (DIED) (R6)** 13. SISTER, - -DO- KATHEESUMMA, AGED 54 YEARS NO OCCUPATION AZHIKODE AMSOM, DESOM, KANNUR.670009. 14. SISTER, - -DO- KUNHIPATHU, AGED 52 YEARS, -DO- -DO- 15. SISTER, - -DO- KUNHAMINA, AGED 50 YEARS, -DO- -DO- ## **16. K.P.SHAHUL HAMEED, (DIED)** 17. SISTER, K.P.KADIJA, AGED 57 YEARS, NO OCCUPATION, AZHIKODE A0MSOM AND DESOM, KANNUR - 670009. ## **K.P.NAFEESSU, (R14) (DIED)** 18. K.P.SAYINAVA, D/O.KUNHIPATHU, AGED 78 YEARS, NO OCCUPATION, AZHIKODE AMSOM AND DESOM, KANNUR-670009. ## **K.P.KATHEESUMMA, (R16) (DIED)** 19. K.P.KUNHAMSU, S/O.SAINAVA, AGED 60 YEARS, BUSINESS, RESIDING AT AZHIKODE AMSOM, DESOM-670009. 20. SISTER K.P.MARIYAM, AGED 58 YEARS, NO OCCUPATION, RESIDING AT -DO- -DO- 21. SISTER K.P.RABI AGED 48 YEARS, - -DO- -DO- RSA.No. 923 of 2012 3 22. SISTER K.P.KUNHAISSU, AGED 54 YEARS, - -DO- -DO- 23. BROTHER, K.P.UMMER KUNHI, AGED 69 YEARS, SUPERINTENDENT OF POLICE, -DO- -DO- 24. SISTER K.P.KUNHAMINA, AGED 51 YEARS, NO OCCUPATION, RESIDING AT -DO- -DO- 25. SISTER K.P.ASSIMA, AGED 49 YEARS, -DO- -DO- 26. BROTHER - K.P.EBRAHIM KUNHI, AGED 47 YEARS,-DO- -DO- 27. BROTHER K.P.MAMMAD KUNHI AGED 45 YEARS, -DO- ## **K.P.ISMAIL (R26) (DIED)** 28. POOVSAN KULATHIL HAMEED, S/O.MARIYUMMA, AGED 54 YEARS, TRADER, AZHIKODE AMSOM, DESOM, KANNUR -670009. 29. YOUNGER BROTHER, UMMER KUNHI, AGED 51 YEARS, - -DO- -DO- 30. YOUNGER SISTER, SAINAVA, AGED 48 YEARS, - -D0- -DO- ## **BAPIRAMPATH KUNHIPATHU (R31) (DIED)** 31. SON EBRAHIM KUTTY, AGED 41 YEARS, TRADER, AZHIKODE AMSOM, DESOM, KANNUR-670009. 32. YOUNGER BROTHER KUNHAMU, , AGED 39 YEARS, - -DO -DO- 33. SISTER ASMABI, , AGED 41 YEARS, NO OCCUPATION, -DO -DO- 34. BROTHER, SHAHUL HAMEED, AGED 39 YEARS, TRADER, -DO -DO- 35. BROTHER MUSTHAFA, AGED 30 YEARS, TRADER -DO -DO- 36. YOUNGER BROTHER RASHEED, AGED 28 YEARS, TRADER -DO -DO- 37. SISTER SUBAIDA, AGED 28 YEARS, NO OCCUPATION, -DO -DO- RSA.No. 923 of 2012 4 38. NADUVILEKANDY PUTHIYAPURAYIL ASMABI, - D/O HUSSAIN KUNHI, AGED 60 YEARS, PALLIKUNNU AMSOM, CHALAD DESOM, KANNUR. 39. SON, ABDUL SALAM, AGED 48 YEARS, - TRADER, -DO -DO- 40. YOUNGER, BROTHER, HAMEED, AGED 46 YEARS, TRADER, -DO -DO- 41. YOUNGER BROTHER, EASSA, AGED 43 YEARS, TRADER, -DO -DO- 42. SISTER SAIBU , AGED 51 YEARS, NO OCCUPATION, -DO -DO- 43. SISTER JAMEELA,, AGED 39 YEARS, NO OCCUPATION, -DO -DO- 44. SISTER RAZIA, AGED 42 YEARS, NO OCCUPATION, RESIDING AT PALLIKUNNU AMSOM, CHALAD DESOM, KANNUR. 45. MADATHILE PEEDIKAYIL PARAKANDY KUNHAMINA, W/O CHERIYA ABDULLA, AGED 58 YEARS, AZHIKODE AMSOM, DESOM, KANNUR-670009. 46. SON -DO- HAMEED, AGED 38 YEARS, TRADER, -DO -DO- 47. BROTHER -DO- UMMER, AGED 36 YEARS, TRADER, -DO -DO- 48. SISTER -DO- AYISSU, AGED 42 YEARS - -DO- -DO- 49. PARAPRATH KOTTAKKEN VALAPPIL KUNHAMINA, AGED 48 YEARS, NO OCCUPATION,AZHIKODE AMSOM,DESOM, KANNUR-670009. 50. SON -DO- ABDULLA, AGED 28 YEARS, TRADER, -DO- -DO- 51. BROTHER -DO- RAFI, AGED 26 YEARS, TRADER, -DO- -DO- 52. BROTHER ISMAIL, AGED 22 YEARS, TRADER, -DO- -DO- 53. BAPPIREMBETH SAINABA, - W/O.ABOOBACKER, AGED 53 YEARS, NEAR PANCHAYATH OFFICE, - PAYYANNUR-670307. RSA.No. 923 of 2012 5 54. SON,RAFEEQUE, AGED 40 YEARS TRADER, -DO- -DO- 55. SISTER RAHIYANATH, AGED 38 YEARS - -DO- -DO- 56. BROTHER,-DO- KUNHAMSA, AGED 37 YEARS - -DO- -DO- 57. SISTER, -DO-FATHIMA,NO OCCUPATION, -DO- -DO- 58. BROTHER, ABDUL, AGED 33 YEARS TRADER,-DO- -DO- 59. P.SUBEER, S/O.KAMMU, AGED 43 YEARS, EMPLOYEE K.S.R.T.C., -DO- 60. KELOTH KATHIJA, D/O.SUBEER, AGED 58 YEARS, NEAR GOVERNMENT HOSPITAL,KANNUR-670001. 61. SON,NEJIMU,, AGED 35 YEARS, TRADER,-DO- -DO- 62. BROTHER,-DO- ASHFRAF, AGED 33 YEARS, TRADER, -DO- -DO- 63. BROTHER, -DO- MOHAMMED HASHIM, AGED 31 YEARS, DO. DO. 64. BROTHER, - DO- MUHAMMED MUSTHAFA, AGED 29 YEARS, DO. DO. 65. BROTHER, - DO- NAZER, AGED 27 YEARS, TRADER, DO. DO. 66. YOUNGER BROTHER, RAFI, AGED 25 YEARS, TRADER, DO. DO. 67. BAPPIREMBETH RASHEED, D/O.KUNHIPATHU, AGED 28 YEARS, NO OCCUPATION, POOTHAPARA, AZHIKODE AMSOM AND DESOM, KANNUR-670009. 68. PARAPPRETH KOTTAKKEN NABEESU, W/O.LATE MOIDU @ MOIDEEN KUTTY, AGED 68 YEARS, DO. DO. 69. SON, DR.ABDUL KHADER, AGED 47 YEARS, DOCTOR, DO. DO. 70. SISTER SAIBUNNEESA, AGED 41 YEARS, NO OCCUPATION, RESIDING AT DO. DO. 71. BROTHER, ABOOBACKER, AGED 43 YEARS, BUSINESS, DO. DO. RSA.No. 923 of 2012 6 72. SISTER SOUDHA, AGED 39 YEARS, NO OCCUPATION, DO. DO. 73. SISTER ZEENATH, AGED 37 YEARS, DO. DO. 74. V.P.SAIBUNNISSA, W/O.ABDUL SALAM, AGED 33 YEARS, VAYARAN PUTHAMPURAYIL HOUSE NEAR G.T.H.SCHOOL, KANNUR-670001. 75. DAUGHTER, V.P.SABEENA, AGED 21 YEARS, DO. DO. 76. SISTER, V.P.SAJNA, (MINOR AGED 15 YEARS). 77. BROTHER, V.P.SAJIR, (MINOR AGED 13 YEARS). ## **P.K.RABI, (R79) (DIED)** 78. P.K.MUHAMOOD, S/O.RABI, AGED 63 YEARS, PARAPRATH KOTTAKKAN HOUSE, CHEMMARASSERI PARA, AZHIKODE AMSOM, DESOM KANNUR-67000 9 79. BROTHER P.K.ABOOBACKER, , AGED 61 YEARS, - -DO- -DO- 80. BEOTHER ,P.K.UMMERKUNHI, AGED 57 YEARS - -DO- -DO- 81. BROTHER,P.K.HAMEED,, AGED 55 YEARS, PROPRIETOR, DELIGHT BINDING,KANNUR-670001. 82. P.K.MOIDU, AGED 53 YEARS, PARAPRATH KOTTAKAN HOUSE, CHEMMARASSERI PARA, AZHIKODE-670009. 83. BROTHER , P.K.IBRAHIM KUTTY,, AGED 51 YEARS, - -DO- -DO- 84. BROTHER P.K.ABDUL RAHIMAN, , AGED 47 YEARS, - -DO--DO- 85. SISTER,P.K.NABEESUTHUL MISIRIA, , AGED 45 YEARS, - -DO--DO- 86. SISTER, P.K.ASMABI, AGED 43 YEARS, -DO--DO- 87. SISTER P.K.SAINABA, , AGED 38 YEARS, - -DO- -DO- RSA.No. 923 of 2012 7 88. BROTHER P.K.MUSTHAFA, AGED 38 YEARS, -DO- -DO- ## **K.P.HASHIM (R91) (DIED)** 89. P.K.MARIYUMMA, D/O.ABDULKHADER, AGED 41 YEARS, PARAPRATH KOTTAKKAN HOUSE, CHEMMARASSERI PARA, AZHIKODE AMSOM, DESOM, KANNUR -670009. 90. BROTHER, P.K.MAMMU, AGED 38 YEARS, TRADER, -DO- -DO- 91. BROTHER, P.K.HAMSU, AGED 42 YEARS, ELECTRICIAN,-DO- -DO- 92. SISTER, P.K.RABI, , AGED 35 YEARS, NO OCCUPATION, -DO- -DO- 93. BROTHER, P.K.SATHAR, AGED 33 YEARS, - -DO- -DO- 94. SISTER P.K.JAMEELA, , AGED 33 YEARS, - -DO- -DO- 95. SISTER P.K.ALEEMA, AGED 31 YEARS - -DO 96. BROTHER P.K.SHEFEEQUE, AGED 23 YEARS, - -DO- -DO- 97. SISTER P.K.RASHEEDA , AGED 24 YEARS, - -DO- -DO- 98. THAYATH PEEDIKAYIL SHAREEFA, W/O/LATE ISMAIL, AGED 46 YEARS, NO OCCUPATION NEAR KALLADATHUKKA MAJID, PUZHATHI AMSOM, DESOM KANNUR-670706. 99. SON , T.R.RIYAS, AGED 28 YEARS, BUSINESS, -DO- -DO- 100. BROTHER, T.P.NAHEEM, , AGED 23 YEARS, -DO- -DO101. T.P.SHAKEENA, AGED 23 YEARS, -DO- -DO102. SISTER, T.P.SAJNA, AGED 22 YEARS, -DO- -DO103. BROTHER, T.P.ILLIYAS, AGED 19 YEARS, -DO- -DO- RSA.No. 923 of 2012 8 104. VATTAKANDY SHAHIDA, W/O. LATE K.P. HASHIM,AGED 43 YEARS, NO OCCUPATION, A.P.NIVAS, KASANAKOTTA, THAYATHERU, KANNUR-670002. 105. M.SAIBUNNEESA, W/O. HASSANKUTTY,AGED 41 YEARS, RESIDING AT SANUBIYAS, KURUVA, KANNUR -670001. 106. DAUGHTER, M.SANUBIYA, AGED 18 YEARS, -DO- -DO- 107. BROTHER, M.AMEEN, AGED 10 YEARS, (MINOR), -DO- -DO(MINORS 105 & 106 THROUGH GUARDIAN, MOTHER SAIBUNNISSA). 108. K.P.THAJUDDIN, S/O. MUSTHAFA, AGED 38 YEARS, COOLIE, AZHIKODE AMSOM, DESOM, KANNUR-670009. 109. BROTHER, K.P.SAKEER HUSSAIN, -DO- -DO- 110. BROTHER, K.P.SADIQUE, AGED 36 YEARS, AUTO DRIVER, AZHIKODE AMSOM, DESOM, KANNUR-670009. 111. SISTER, K.P.HAIRUNNISSA, AGED 33 YEARS, -DO- -DO- 112. K.P.MUHAMMED ALI, S/O. KUNHIPATHU,AGED 48 YEARS, NO OCCUPATION, RESIDING AT SIYAD MANZIL, POOTHAPARA, AZHIKODE, KANNUR-670009. 113. K.P.SUBAIDA, D/O. KUNHIPATHU, AGED 45 YEARS, -DO- -DO114. K.P.AYISHABI, D/O. KUNHIPATHU, AGED 41 YEARS, -DO- -DO115. K.P.JALEEL, S/O. KUNHIPATHU, AGED 41 YEARS, -DO- -DO116. K.P.ASIYABI, D/O. KUNHIPATHU, AGED 37 YEARS, -DO- -DO117. K.P.ASMABI, D/O. KUNHIPATHU, AGED 35 YEARS, -DO- -DO118. K.P.USMAN, S/O. KUNHIPATHU,AGED 33 YEARS, -DO- -DO- RSA.No. 923 of 2012 9 119. K.P.RIYAS, S/O. KUNHIPATHU,AGED 32 YEARS, -DO- -DO- 120. P.T.ABDURAHIMAN, S/O.ABOOBACKER,AGED 77 YEARS, -DO- -DO- ## **SUPPL.RESPONDENT OF DECEASED R16:-** 121. C.O.T.ASMA,D/O.P.P.KUNHI, AGED 69 YEARS, NO OCCUPATION, RESIDING AT THAZHATH HOUSE, KAYYATH ROAD THALASSERY-670101. 122. C.O.T.SHADULI, AGED 45 YEARS BUSINESS, -DO- -DO- 123. C.O.T.SIRAJ, AGED 43 YEARS, BUSINESS, -DO- -DO- 124. C.O.T.VAHIDA, AGED 39 YEARS, TEACHER, -DO- -DO- 125. C.O.T.NASEEBA,, AGED 39 YEARS, NO OCCUPATION, -DO- -DO- 126. C.O.T.SHAMEENA,, AGED 34 YEARS, ATTENDER, -DO- -DO- SUPPL.RESPONDENTS 121 TO 126 ARE THE LRS OF DECEASED R16, IMPLEADED AS PER ORDER IN IA. NO.249/2010 AND AMENDED AS PER ORDER IN IA NO.250/2010 DATED 10.02.2010. ## **CHILDREN OF LATE SAFIYA:** 127. THARAYIL PEEDIKAYIL KUNHAMINA, AGED 61 YEARS, NO OCCUPATION, RESIDING AT AZHIKODE AMSOM AND DESOM, KANNUR TALUK AND DISTRICT-670009. 128. K.P.SUHARABHI, AGED 68 YEARS, NO OCCPATION, RESIDING AT AZHIKODE AMSOM AND DESOM, KANNUR TALUK & DISTRICT - 670009. ## **LRS. OF DECEASED NABEESU:** 129. M.P.HAMEED, AGED 71 YEARS, H/O.NABEESU, NO OCCUPATION, -DO- -DO- ## **CHILDREN** : 130. K.P.RASIA, AGED 43 YEARS, NO OCCUPATION, -DO- -DO- RSA.No. 923 of 2012 10 131. K.P.SABIRA, AGED 41 YEARS, NO OCCUPATION, -DO- -DO- 132. K.P.MUNEER, AGED 38 YEARS, BUSINESS, -DO- -DO- 133. K.P.SHAFFI, AGED 36 YEARS, CLERK, -DO- -DO- 134. K.P.SAMEERA, AGED 33 YEARS, NO OCCUPATION, -DO- -DO- 135. K.P.SUHAIBA, AGED 30 YEARS, NO OCCUPATION, -DO- -DO- ADV. SRI.M.RAMESH CHANDER - FOR R1 ADV. SRI.V.TEKCHAND - FOR R100 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **THOMAS P.JOSEPH, J.** **==================================== R.S.A. No. 923 of 2012 ==================================== Dated this the 25[th] day of September, 2012 J U D G M E N T** A litigation that commenced well over six decades back has not so far concluded as is revealed by this Second Appeal arising from the final decree passed by the learned Additional Sub Judge, Thalassery in O.S. No.73 of 1949 (as per order on I.A. No.1640 of 1991) and confirmed by the learned Additional District Judge, Thalssery in A.S. No.104 of 2009. This time, the challenge is at the instance of the 21[st] defendant who, along with defendants 18 to 20 and 22 represent the estate of the deceased 9[th] defendant as her legal heirs. 2. A preliminary judgment and decree for partition was passed on 24.09.1954, confirmed in A.S. No.69 of 1955 and S.A. No.1014 of 1964 of this Court. The preliminary decree directed partition of item Nos.1 to 31, 34, 52 to 54 and 58 to 61, 71, 74, 89 and 91 and the undivided share in the half right in item Nos.32 and 34 and 1/4[th] right in item No35, 36 and 87 and 88. In paragraph 95 of the preliminary judgment, certain directions were ## **R.S.A. No.923 of 2012** ## -: 2 :- made as to the claim for reservation of improvements (allegedly) effected by the female members (deceased 9[th] defendant falls in that group). 3. Pursuant to the confirmation of the preliminary decree, the 1[st] respondent-1[st] plaintiff and others filed I.A. No.1640 of 1991. After crossing several hurdles the trial court passed the final decree on 18.12.2008. That was challenged in A.S. No.104 of 2009 but without success. 4. The learned counsel for the appellant-21[st] defendant contended that allotment of shares by the trial court in the final decree and confirmed by the first appellate court is erroneous. It is contended that shares are allotted to even deceased defendants. Further contention is that though the preliminary decree directed that reservation claimed by the female members who have possession of the properties under Sthreedhanam grant could be considered by the court while passing final decree and such reservation is accepted with respect to item Nos.4, 10, 11, 30 and 74, so far as item No.29 which according to the appellant was in the possession of the deceased 9[th] defendant is concerned, no such reservation is granted. It is contended that the Advocate Commissioner who has taken pains ## **R.S.A. No.923 of 2012** ## -: 3 :- to accept the claim for reservation so far as item Nos.4, 10,11, 30 and 74 has not stated any reason why a similar reservation was not granted with respect to item No.29 which was in the possession of the deceased 9[th] defendant. Therefore it is contended that the final decree is not in tune with the directions contained in paragraph 95 of the preliminary judgment and that involved a substantial question of law. 5. The learned counsel who took notice for the 1[st] plaintiff contended that though there is some clerical error in mentioning the rank of the defendants in the share list, substantially there is no defect in the final decree. It is contended that so far as reservation claimed by the legal representatives of the deceased 9[th] defendant is concerned, that claim cannot arise in view of the direction contained in paragraph 95 of the preliminary judgment as explained by this Court in C.R.P. No.784 of 2007 and the report of the Advocate Commissioner. Learned counsel submitted that no substantial question of law is involved. 6. So far as allotment of share Nos.4 to 8 in the share list is concerned, learned counsel for the 1[st] plaintiff has also submitted that there is some mistake committed by the trial ## **R.S.A. No.923 of 2012** ## -: 4 :- court in mentioning the rank number of the defendants in the share list. For instance, so far as share No.4 is concerned, it is seen allotted to the 4[th] defendant while according to the learned counsel for the 1[st] plaintiff, it should have been to the 3[rd] defendant. So far as item No.5 is concerned, it should have been allotted to the 4[th] defendant and not to the 5[th] defendant. Share No.6 should have been allotted to the 5[th] defendant and not to the 6[th] defendant. 7. So far as such discrepancy is concerned, I am not inclined to think that the 21[st] defendant is in any way affected. If at all any correction of the above said mistakes is required, it is open to the party concerned to seek correction before the appropriate court. 8. Yet another contention is that share No.30 is allotted to the 108[th] defendant but there is no such defendant as No.108. That obviously is a mistake since in the suit there are only 65 defendants. Consequent to the death of some of the defendants there were impleadments. In the application for passing the final decree, there are 131 respondents. Reference to the 108[th] defendant can therefore be to the 108[th] respondent in the application for passing final decree. However that is a matter ## **R.S.A. No.923 of 2012** ## -: 5 :- which the defendant concerned should seek clarification. 9. So far as the 21[st] defendant is concerned, the real concern is as regards not allowing the reservation claimed over item No.29. Question is whether finding of the trial court as confirmed by the first appellate court that the legal representatives of the 9[th] defendant are not entitled to any reservation with respect to item No.29 of the decree schedule involves any substantial question of law. 10. To understand that contention it is necessary to refer to paragraph 95 of the preliminary judgment. There, what is stated is that the female members (I stated the deceased 9[th] defendant is a female member) who have possession of Sthreedhana Parambas will be, ## “entitled to reservation of the improvements made by them in those parambas. They are entitled to reservation of only improvements made after they got possession actual or constructive after Sthreedhanam grant till the date of partition. What are the improvements to be reserved will be decided in the final decree after Commissioner's ## **R.S.A. No.923 of 2012** ## -: 6 :- report. There will be no reservation of the property in their favour. As far as possible properties for which reservation have been made will be allotted to those parties at the time of final decree”. 11. The trial court has referred to paragraph 95 of the preliminary judgment in paragraph 12 of the final judgment. There it is stated that the female members who have possession of parambas under Sthreedhanam grant shall be entitled to reservation of the improvements made by them in those parambas from the date of possession, actual or constructive till the date of partition which shall be decided in the final decree and as far as possible reservations have been claimed shall be allotted to those parties at the time of final decree proceedings. 12. Though in the latter part of paragraph 12 of the final judgment there is no mention that the reservation referred to therein is not over the property but over the improvements, it is clear from paragraph 95 of the preliminary judgment that the reservation granted is not of the paramba but of the improvements if any made by the female members and during the period stated in paragraph 95 of preliminary judgment. ## **R.S.A. No.923 of 2012** ## -: 7 :- 13. Though while considering the claim for fixity of tenure made by the deceased 9[th] defendant, this Court had occasion to refer to the above matter in C.R.P. No.784 of 2007 in paragraph 5 of the order (a copy of which is given to my the learned counsel for the 1[st] plaintiff for perusal) this Court stated that the female members are entitled only to reservation of improvements made after they got possession and that what is preserved and protected in paragraph 95 of the preliminary judgment is entitlement for improvements value especially when they are made by them after they got possession. This Court has specifically observed that the direction in paragraph 95 of the preliminary judgment negatives any reservation in favour of the female members (including the deceased 9[th] defendant) over the property possessed by them under Sthreedhanam grant. 14. Then the question is whether the trial court was right in denying reservation of improvements to the legal representatives of the deceased 9[th] defendant over item No.29 of the decree schedule? That, item Nos.4, 10, 11, 30 and 74 are (allegedly) allotted to the legal representatives of the deceased 7[th] defendant is no ground to allot item No.29 to the legal representatives of the deceased 9[th] defendant. ## **R.S.A. No.923 of 2012** -: 8 :- 15. So far as reservation regarding improvements allegedly effected by the deceased 9[th] defendant in item No.29 of the decree schedule is concerned, my attention is drawn to the report of the Advocate Commissioner. The Advocate Commissioner has stated that in the property regarding which reservation was claimed by the female members there was practically no yield in the improvements found there either due to its oldness or negligent handling and hence the said items are valued as per centage value. That report of the Advocate Commissioner is not shown to be incorrect so that, the appellant21[st] defendant could raise a grievance that no reservation of improvements was granted for the legal representatives of the deceased 9[th] defendant. 16. I must also notice the submission learned counsel for the plaintiff made that some of the sharers have already taken delivery of the respective shares allotted to them. I started this judgment by observing that the litigation started more than six decades back. I am inclined to think that it is high time that the parties should put an end to this litigation. 17. Three generations fought this legal battle for 63 years. I am reminded of the observation made by Lawton C.J., in ## **R.S.A. No.923 of 2012** -: 9 :- **Kennaway v. Thompson** ([1980] 3 All. E.R. 329) that the parties forgot the message, “live and let live”. Will the parties to this litigation hear that message? 18. Having heard the learned counsel for the appellant and the learned counsel who took notice for the 1[st] respondent, I am convinced that no substantial question of law is involved. Second Appeal is dismissed. All pending Interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv