High Court Kerala High Court

C.M. Janaki vs E.K. Manikandavarma Raja on 26 March, 2009

Kerala High Court
C.M. Janaki vs E.K. Manikandavarma Raja on 26 March, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

RFA.No. 117 of 2009()


1. C.M. JANAKI, W/O. LATE T. NARAYANAN
                      ...  Petitioner
2. DEEPA NAIR, D/O. LATE T. NARAYANA NAIR,

                        Vs



1. E.K. MANIKANDAVARMA RAJA,
                       ...       Respondent

                For Petitioner  :SRI.B.KRISHNAN

                For Respondent  :SRI.K.V.SOHAN

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :26/03/2009

 O R D E R
              M.SASIDHARAN NAMBIAR,J.
              ------------------------------------------
                  R.F.A.NO.117 OF 2009
              ------------------------------------------
               Dated        26th March 2009

                          JUDGMENT

Final decree petitioner in I.A.2467/1988 in

O.S.73/1985 on the file of Sub court, Vadakara is the

respondent. Respondents 17 and 18, the legal heirs of

deceased sixth defendant are the appellants. Appeal is

filed challenging the final decree whereunder the

house available for partition was alloted to the

respondent with a direction to pay value of their

shares to the appellants. Learned Sub Judge had

originally passed a final decree allotting the house

to the respondent. It was challenged before this

court in A.S.397/1988. This court set aside the final

decree with regard to the allotment of the house

alone and confirmed the other allotments and remanded

the final decree granting opportunity to the

appellants and respondent to adduce further evidence

regarding their entitlement for the allotment of the

house. Subsequent to the remand, appellants produced

Exts.B1 to B7 and respondent Exts.A1 and A2.

Respondent was examined as PW1 earlier. Appellants

did not adduce any oral evidence. Learned Sub Judge on

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2

the evidence found that though respondent inherited the

property having an extent of 1.93 Ares under Ext.A1 on

the death of his wife, construction of the house in

that property is not completed and according to

respondent as PW1 that was given to his brother-in-law

and respondent is not having any other house of his own

and he is only a menial employee. Learned Sub Judge

also found that appellants have other properties

including house and therefore found that the house is

to be allotted to the respondent and value of shares to

appellants and final decree was passed accordingly. It

is challenged in this appeal.

2. Learned counsel appearing for appellants

and respondent were heard.

3. Learned counsel appearing for appellants

pointed out that when appellants together are entitled

to 5/6 shares and respondent is only entitled to

remaining 1/6 shares and allotment of the house to the

1/6 share is illegal. It was also argued that Ext.B1

encumbrance certificate establish that property

inherited by respondent after the death of his wife

which belonged to the wife under Ext.A1, was not

transferred to the brother-in-law as claimed by PW1

RFA 117/09
3

and therefore finding of the learned Sub Judge is not

correct. It was also argued that PW1, deposed that

there is a house in the property and therefore

finding that construction of the house was not

completed is also not correct. Learned counsel argued

that in such circumstances, fact that appellants are

having other houses is not a ground to allot the house

to the respondent who is having only 1/6 share with a

direction to pay value of 5/6 shares to the appellants

and therefore allotment is to be set aside.

4. Learned counsel appearing for

respondent argued that even if the property covered

under Ext.A1 was not transferred by a registered

document in favour of brother-in-law of the respondent,

there is no reason to disbelieve his version that

property was given to the brother-in-law. It was also

submitted that respondent is only a peon in an aided

school and he was aged only 22 years at the time of

institution of the suit and when he is not having any

house of his own, allotment of the house to him was

just and proper.

5. The only point for consideration is

whether allotment of the house to the respondent with

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a direction to pay the value of the remaining shares to

the appellants is equitable and justifiable.

6. True, the property belonging to the

wife of the respondent on her death would definitely

devolve on the respondent and Ext.A1 property is to

be taken as that of the respondent, in the absence of

any transfer of that property by the respondent. At

the same time, it is to be born in mind that when the

said property belongs to the wife of the respondent,

respondent could give that property to the relatives of

the wife, though legally he is entitled to inherit the

property. Whatever it be, appellants are having

sufficient properties including residential houses.

Therefore, if it is taken that respondent is having a

property extending to 1.93 Ares inherited from the

wife and also that there is a house in that property,

whether allotment of the house to respondent is unfair

or unjust. The position would have different, if the

appellants are not having a house of their own.

Undisputed facts establish that appellants are having

sufficient properties including houses. Therefore,

when the final decree court in equity and fairness

allotted the house to the respondent, I find no reason

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5

to interfere with that order for the reason that

respondent is only having 1/6 share or that respondent

is having a property, which devolved on him on the

death of the wife. It is more so when age of the

respondent is taken into consideration. In such

circumstances, appeal is dismissed.

M.SASIDHARAN NAMBIAR,
JUDGE.

uj.