Venkideswara Prabhu and others v. Janardhana Mallan and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **TUESDAY, THE 15TH DAY OF JULY 2014/24TH ASHADHA, 1936** ## **RFA.No. 562 of 2005 (C)** ## **------------------------** **AGAINST THE ORDER/JUDGMENT IN OS 35/1963( I.A.NO.1462/73 ) of ADDL.SUB COURT, IRINJALAKUDA DATED 20-12-2004** **APPELLANT(S)IN RFA /RESPONDENTS NOS.3,10 TO 21,23 & 24 IN IA.:** - **----------------------------------------------------------------------------------------------------------** **1. VENKIDESWARA PRABHU, S/O.NARAYANA PRABHU KIZHAKKE MADATHIL, KODUNGALLUR TALUK LOKAMALLESWARAM VILLAGE, KALAPURA KOVILAKAM.** **2. N. RENGANADHA PRABHU** - **(WRONGLY SHOWN AS V. RENGANADHA PRABHU IN THE ORDER & FINAL DECREE), S/O. LATE NARAYANA PRABHU KALAPPURA KOVILAKAM, LOKAMELLESWARAM, KODUNGALLUR.** **3. N. LAKSHMANA PRABHU, D/O. -DO- IN -DO- -DO-.** **4. N. GANESHA PRABHU,** - **S/O. -DO- IN -DO- -DO-.** **5. N. RAGHAVENDRA PRABHU,** - **S/O. -DO- IN -DO- -DO-.** **6. N. SIVARAMA PRABHU,** - **S/O. -DO- IN -DO- -DO-.** **7. N. VASANDHI R. PRABHU, /DO. -DO-., HOUSE NO.8/152, ALATHUKUTTY ROAD, KOCHI.** **8. SMT. SANTHA P., D/O. -DO-, KINIKKER ROAD, KOCHI.** **9. SMT. PREMA V. BUTT, D/O. -DO-, HOUSE NO.35/241, HARI NIVAS, THANIKKAL ELAMAKKARA, KOCHI.** ## **10. PRAMEELA N. PRABHU, D/O. -DO-, ALUNGAPARAMBIL HOUSE, KARANAKODAM, SOUTH JANATHA ROAD KOCHI.** **RFA 562 OF 2005** **-2-** ## **11. SASIKALA, D/O.LATE REGHUNADHA PRABHU, KRISHNALAYAM, SMC 26, VELIPARAMBIL HOUSE CHERTHALA.** ## **12. CHANDRAKALA, D/O. -DO-,** **LAKSHMISADANAM, NEAR BHAGAVATHI TEMPLE, CHERANELLUR KOCHI.** **13. SOMAKALA, D/O. -DO-, NADUKKAPARAMBIL, NEAR DURGA TEMPLE, VARAPPUZHA KOCHI.** ## **14. SREEKALA, D/O. LATE RAGHUNATHA PRABHU, HOUSE NO.8/333 F., GANESH PAI COMPOUND, KOCHI.** ## **15. NARAYANA PRABHU S/O. -DO-, KALAP0URA KOVILAKAM, KODUNGALLUR.** **BY ADVS.SRI.S.V.BALAKRISHNA IYER (SR.) SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN SRI.HARISH R. MENON SRI.R.SURAJ KUMAR** ## **RESPONDENT(S)IN RFA/PETITIONERS 6 TO 11 & RSPDTS.4 TO 9, 22 & 25 IN IA:** ## **--------------------------------------------------------------------------------------------------------------** ## *** 1. JANARDHANA MALLAN,** **S/O. VENKIDESWARA MALLAN, PARARATH PARAMBIL HOUSE LOKAMALLESWARAM VILLAGE, KODUNGALLUR TALUK. (DIED LRS IMPLEADED)** ## **2. GOPINADHA MALLAN, S/O. -DO-.** ## **3. RAVEENDRANADHAN, S/O. -DO-.** ## **4. RAJAN, S/O. -DO- -DO-.** ## **5. SADANANDAN, S/O.RAMANADAN, IN -DO-.** ## **6. K.V. UMANADHA PRABHU,** **S/O. V. SAROJINI & R.V. PRABHU, XV/143, MANKARA ROAD KOCHI.** ## **7. DWARAKANADHA PRABHU,** ## **S/O. R.V. PRABHU IN -DO- -DO-.** **8. MOHANAR PAI, S/O. V.GOVINDA PAI, AND SARASWATHY @ V. JAYANDHI BAI (DIED) SOUTH CHERAYI, KOCHI.** **RFA 562 OF 2005** **-3-** ## **9. G. MADHUKAR PAI, S/O. -DO- -DO-.** ## **10. JOTHIPRABHA, W/O. VINODHKUMAR, 35/2751, MAMANGALAM, KOCHI-24.** ## **11. VASUDEVA MALLAN,** **S/O. VENKIDESWARA MALLAN, PARARATHUPARAMBIL HOUSE -DO-.** **12. SNEHALATHA ALIAS V. SAROJINI, D/O. VENIKIDESWARA MALLAN IN -DO- -DO-.** **13. SARASWATHY ALIAS V.JAYANDHI BAI, 8/60, W/O. V. GOVINDA PAI, SOUTH CHERAI KOCHI-682 002.** **14. V. MRUDULABAI, W/O. C.N.KESAVA PRABHU, CHEMMOTHUPARAMBIL HOUSE, KIZHUMPURAM VILLAGE CHENNAMANGALAM.** - **15. V. VASANDHA, W/O. K.B. MANICKAM, AGENT, DHANALAKSHMI BANK, DARAPADI HARIPAD.(DIED LRS IMPLEADED)** **16. VALSALA, W/O. M.R. PAI, AKKATT HOUSE, ALUVA.** ## **17. INDUKALA, D/O. LATE RAGHUNATHA PRABHU, NEAR SREE KRISHNA TEMPLE, KODUNGALLUR.** ## **18. R. RADHAKRISHNA PRABHU,** - **S/O.LATE RAGHUNATHA PRABHU, KALAPURA KOVILAKAM SRINAGAPURAM, KODUNGALLUR. (PTNR.NO.5 & RSPDTS.1 & 2 IN THE INTERIOCUTORY APPLICATION DIED PENDING THE PROCEEDINGS BEFORET HE COURT BELOW AND THEIR LRS WERE BROUGHT ON RECORD)** **ADDL. R19 TO 24 IMPLEADED:** ## **R19: VIJAYA BAI, W/O LATE JANARDHANA MALLAN, RESIDING NEAR RAJAGOPALAKRISHNA TEMPLE, SRINGAPURAM, KODUNGALLUR.** - **R20: VIDYA LAKHMI, D/O DO. & W/O KUMAR PAI, “SANKAR NIVAS, OLD BAGAVATHI TEMPLE, ALAPPUZHA.** - **R21: JAYASHREE, D/O LATE JANARDHANA MALLAN, RESIDING NEAR RAJAGOPALAKRISHNA TEMPLE, SRINGAPURAM, KODUNGALLUR.** - **R22: MANOJ MALLAN, S/O DO. RESIDING IN DO. DO.** - **R23: RAJASHREE, D/O DO. RSIDING IN DO. DO.** - **R24: PRAVEEN MALLAN, S/O DO. RESIDING IN DO. DO.** **RFA NO.562/2005** **-4-** **THE LEGAL REPRESENTATIVES OF DECEASED R1 ARE IMPLEADED AS ADDL. RESPONDENTS 19 TO 24 VIDE ORDER DATED 13.08.2009 IN I.A.NO.4212/07.** **ADDL. R19 TO 24 IMPLEADED:** **ADDL. R25: SREEDEVI. K.M. D/O LATE VASANTHA P.V., KANGATH HOUSE, BROADWAY POST OFFICE LNK ROAD, ERNAKUAM, KOCHI-682 031.** **THE LEGAL REPRESENTATIVES OF DECEASED R15 ARE IMPLEADED AS ADDL. RESPONDENT 25 VIDE ORDER DATED 30.11.2010 IN I.A.NO.4423/10.** **R1 TO10 BY ADV. SRI.P.R.VENKETESH R17 & 18 BY ADV. SRI.K.RAMACHANDRAN R17 & 18 BY ADV. SMT.R.MEERA ADDL.R19 TO 24 BY ADV. SRI.P.R.VENKETESH** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON** **15-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **B.KEMAL PASHA, J.** ................................................................ R.F.A. No. 562 of 2005 ............................................................... Dated this the 15[th] day of July, 2014 ## **J U D G M E N T** Claiming 6/8[th] share over the decree scheduled property, the plaintiff filed O.S.No.35/1963 before the Subordinate Judge's Court, Irinjalakuda. It seems that thereafter, the case has a chequered career. The matter had, more than ones, went up to the Apex Court. 2. It seems that on 30.03.1967 the court below has passed a preliminary decree which was subjected to an appeal before this Court as A.S.No.80/1968. The appeal was ultimately dismissed on 10.07.1972. Thereafter, before the court below I.A.No.1462/1973 was filed by the plaintiffs in the suit for the passing of the final decree. In the mean R.F.A.562 of 2005 -: 2 :- time, the appellants had approached the Apex Court through Civil Appeal No.1197/74. Leave was granted, the matter was admitted, and the Civil Appeal was allowed by the Apex Court on 10.05.1996, and the matter was remanded to this Court. A.S.No.80/68 was once again revived and restored, and again after hearing, this Court dismissed the appeal subject to some modifications prescribed in paragraph 33 of the judgment of this Court. 3. Paragraph 33 of the judgment of this Court in A.S.No.80/68 has been extracted in paragraph No.3 of the appeal memorandum which reads: “33. …..... For improvements in the area which have to be normally surrendered to the plaintiffs on final decree, we are of pinion that value of improvements were normally assessed not on the basis of cost of improvements; but, value determined in accordance with the accepted principles. Therefore, 1[st] defendant will be entitled to the value of improvement on that portion of the property which has to be R.F.A.562 of 2005 ## -: 3 :- surrendered to the plaintiffs and not merely the cost of improvements. Except with regard to the above change, we affirm the judgment of the trial court.” 4. The matter did not stop there. Again the appellants went up to the Apex Court with Civil Appeal No.7733/1997. Again leave was granted, the matter was admitted, and ultimately the Apex Court dismissed the appeal with some observations to be considered by the court below in carrying out a partition in the final decree. The said observations are also extracted in paragraph 3 of the appeal memorandum which reads: “..... We, however, make it clear that in the final decree proceedings, it shall be open to the appellants to make application in accordance with law to adjust equities, including the direction whether the house build by them could be allotted to their share. We do not wish to express any opinion and it shall be open to the court dealing with the final decree R.F.A.562 of 2005 -: 4 :- proceedings to pass appropriate orders having due regard to equities as well.” 5. Thereafter, the proceedings in the final decree again resumed and the court below proceeded with I.A.No.1462/73. In the meantime, a Commissioner was appointed by the court below for carrying out the partition by metes and bounds. It seems that the Commissioner had filed Ext.C1 report with a plan appended with it on 08.12.1975. The court below has chosen to accept Ext.C1 Commissioner's report, based on which the court below has passed the impugned final decree on 20.12.2004 and the same is under challenge in this appeal. 6. Heard the learned counsel Sri.P.B.Krishnan for the appellants and Sri.K. Ramachandran and Sri.P.R. Venkatesh for the respondents. The learned counsel for the appellants is mainly attacking the impugned final judgment on the ground that, (1) additional respondents 17 and 18 were not even served notice at the time when the court R.F.A.562 of 2005 -: 5 :- below has chosen to pass the final decree, (2) the court below should not have relied on Ext.C1 report, in which a valuation as on 08.12.1975 was made, (3) the court below has ignored the modifications to be carried out as per the guidelines given by this Court in the judgment in A.S.80/68 after remand, (4) the court below has ignored the observations and guidelines contained in the judgment in Civil Appeal No.7733/97 passed by the Apex Court, and (5) the court below has dismissed the application filed by the appellants before the court below for the issuance of a fresh Commission. 7. It is an admitted fact that respondents 17 and 18 herein were not even served with notice before the court below at the time when the court below has chosen to pass the impugned final decree. Presently, respondents 17 and 18 are represented by the learned counsel Sri.K. Ramachandran before this Court. It seems that the court below was in a hurry to dispose of the matter, as it was an R.F.A.562 of 2005 -: 6 :- old matter pending before that court. At the same time, the court below ought not to have ignored the modifications suggested by this Court as well as the observations of the Apex Court relating to the matter. 8. The learned counsel for the appellants has pointed out that the court below should not have relied on Ext.C1 Commissioner's report. As per the modifications suggested by this Court as well as through the observations of the Apex Court, the valuation of the properties is of great concern in the present matter. It seems that the court below has chosen to rely on the Commissioner's report and plan prepared on 08.12.1975, to pass the impugned final decree. It seems that the court below has committed a grave error in relying on the said valuation made by the Commissioner as on 08.12.1975 to pass the impugned final decree. It is trite law that, as far as possible, valuation to be relied on in passing a final decree should be as on the date of the passing of the final decree. Of course, it may not be R.F.A.562 of 2005 -: 7 :- possible in all cases to rely on the valuation as on the date of the passing of the final decree as the court, for passing the final decree, has to take into consideration the Commissioner's report which should be prior to the passing of the final decree. At the same time, the court has to take a caution that as far as practicable the time gap between the Commissioner's report and the final decree should be minimal. In this case, Ext.C1 Commissioner's report was based on a valuation prior to 08.12.1975. The court below has passed the impugned final decree on 20.12.2004. It means that around 29 years have been elapsed after the valuation made by the Commissioner, to pass the final decree. By any stretch of imagination, presently, the same cannot be accepted and relied on. It seems that again 10 years have elapsed after the passing of the final decree. It is matter of serious heartburn as the plaintiffs are out of possession even now. At the same time, the law cannot be given a go by as the one seems to have been done by the R.F.A.562 of 2005 -: 8 :- court below in the matter. The court below ought to have appointed another Commissioner or deputed earlier Commissioner once again to have a valuation, which can be accepted within the meaning of the modifications suggested by this Court as well as the observations made by the Apex Court. 9. The learned counsel for the appellant has invited the attention of this Court to the decision in _**M. L. Subbaraya Setty and others v. M. L. Nagappa Setty and others** [(2002) 4 SCC 743]_ wherein it was held in paragraph 29: “Another question to be determined is as to the date of valuation of the properties in a suit for partition. Ordinarily, it has to be the date of the passing of the final decree and not the date of filing of the suit for partition. In a given case, however, there may be exception of this general rule. It is a matter of common knowledge that such suits for partition take considerable time for disposal. There is a big R.F.A.562 of 2005 -: 9 :- time lag between date of filing of the suit and date of the decision thereof. There is also considerable lapse of time between passing of preliminary decree and passing of final decree. Take the present case, suit was filed in the year 1948, preliminary decree proceedings were finalized in 1971 by decision of this Court. Thereafter more than 30 years have lapsed, the parties are still no way near the final partition. It would be absurd if it was to be held that the valuation of 1940 or 1948 should be taken. It is also possible that in a given case, the value of one property may appreciate drastically while not so in the case of other properties or it may even decline and some of the parties may be in possession of those properties. It has been the endeavour of the Courts in such suits to protect, preserve and respect the possession of the parties as far as possible. While so protecting, there has to be equalization of shares which has been recognized in law "by making a provision for payment of Owelty". R.F.A.562 of 2005 -: 10 :- ## 10. In paragraph 33 of the decision noted _supra_ it was held: “A contention was also urged that there is generally a time gap between the report of Commissioner submitted pursuant to the directions in the preliminary decree and passing of the final decree and it would not be practicable to value the assets as on the date of the final decree. There is no impracticality. Ordinarily, though it is the date of the final decree but in reality the date of valuation which the Commissioner takes into view in the report, that is taken into consideration by the Court. But that would again depend on the facts of each case: In a given case, there may be gap of years between the date of the report of the Commissioner and the date of the final partition. In the meanwhile, there may have been a sharp increase or decrease in the value of the property or properties. In such event, the Court may have to balance the equities and pass other directions in order to partition the R.F.A.562 of 2005 -: 11 :- properties between the parties as per their respective shares.” 11. The ratio has been laid down by the Apex Court at the end of paragraph 33 of the decision noted _supra_ that “ _the actual partition is effected by passing of the final decree. The valuation has, thus, to be as on the date of final decree.”_ 12. Apart from all the above, Rule 187 of the Civil Rules of Practice also gives guidelines as to how the final decree has to be passed and the stamp duty to be levied upon. The final decree has to be engrossed on stamp paper. As per Rule 187(2) the stamp duty levied shall be according to the Stamp Act in force at the time of the passing of the final decree, which means that the valuation of shares has to be calculated as on the date of the final decree. 13. From the observations made above, it has come out that gross illegality and irregularity has crept in the impugned final judgment. True that the matter is very old; at R.F.A.562 of 2005 -: 12 :- the same time, the provisions of law has to be observed. The court below shall issue a fresh commission or again depute the earlier Commissioner to have a fresh valuation in respect of the properties on the basis of the modifications made by this Court as well as the observations made by the Apex Court, extracted above from the appeal memorandum. The Commissioner can give alternate suggestions to the court below, so that the court below can accept any of such suggestions as such or with modifications. It seems that in the impugned final judgment, the owelty granted to the appellant comes to 1½ times of the value of the property allotted to the appellants. The owelty should be minimal, as far as practicable. In such case, more extent of property could have been allotted to the appellants. The court below shall take note of these aspects and shall pass a final decree in tune with the preliminary judgment and decree as modified by this Court and also in the light of the observations made by the Apex Court. R.F.A.562 of 2005 -: 13 :- 14. The court below shall take note of the fact that both sides here agree that the portion of the property, which was leased out from the decree scheduled property and is in possession of third party, including a pathway claimed by the public, has to be avoided and such portions have to be treated as portions which are not available for partition. 15. In the result, this appeal is allowed and the impugned final decree is set aside. The matter is remitted to the court below for fresh disposal in accordance with law on the basis of the observations made above. Being an old matter, the court below shall make every endeavour to dispose of the matter finally, as expeditiously as possible, at any rate, within a period of six months from the date of receipt of a copy of this judgment. The parties also shall co-operate with the matter in order to have an early disposal. The parties shall appear before the court below on 03.09.2014. R.F.A.562 of 2005 -: 14 :- All the interlocutory applications in this appeal are closed. **Sd/-** **B. KEMAL PASHA, JUDGE** ul/- [True copy] P.S. to Judge