High Court Kerala High Court

Anthyalan vs Neeli on 18 September, 2008

Kerala High Court
Anthyalan vs Neeli on 18 September, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

RSA.No. 93 of 2007()


1. ANTHYALAN, S/O. PARYANI,
                      ...  Petitioner

                        Vs



1. NEELI, D/O. DECEASED KORAN & PARYANI,
                       ...       Respondent

2. KOCHEE, D/O. DECEASED KORAN & PARYANI,

3. KURUMBA, D/O. DECEASED KORAN &

4. MANGODI, D/O. DECEASED KORAN & PARYANI,

5. NEELI, W/O. DECEASED AYYAPPAN,

6. SUNDARAN, S/O. DECEASED AYYAPPAN,

7. GIRIJA, D/O. DECEASED AYYAPPAN,

8. SUNDARI, D/O. DECEASED AYYAPPAN,

9. PRASANNA, D/O. DECEASED AYYAPPAN,

10. CHAMI, S/O. PARYANI,

                For Petitioner  :SRI.P.VIJAYA BHANU

                For Respondent  :SRI.G.SREEKUMAR (CHELUR)

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :18/09/2008

 O R D E R
                         V.RAMKUMAR, J.
                      ====================
                      R.S.A.No.93 of 2007
                  ===========================
          Dated this the 18thday of September, 2008.

                         J U D G M E N T

The 1st defendant in O.S.No.313/2001 on the file of the

Munsiff’s court, Wadakkanchery, is the appellant in this second

appeal. The substantial questions of law formulated at page 6 of

the memorandum of second appeal are the following:

1) Whether courts below have failed to find that the

earning of the appellant/1st defendant were spent to modify the

house from deterioration and therefore it is not partiable?

2) Whether the courts below have failed to notice that

the appellant herein/1st defendant who had constructed the house

has undividable right over the house than the other co-owners?

3) Whether the courts below have failed to appreciate

that the appellant/1st defendant constructed the house using his

own money, even though the plaintiffs admit that they have no

objection to given the house to the 1st defendant after valuation

of the same?

     4)    Whether tharavadu house is partiable?

R.S.A.No.93 of 2007              2




      5)    Whether tharavadu house belongs to a person who

had spent money to save it from deterioration?

2. O.S.No.313/2001 was filed by 9 persons seeking

partition and separate possession of their 5/7 share over one

item of plaint schedule property admeasuring 24> cents.

3. The proved facts as concurrently found by the courts

below are the following:-.

The plaint schedule property belonged to one Paryani as per

Ext.A1 registered deed dated 21.7.1982. Paryani’s husband,

Koran, had predeceased her. Paryani died about 22 years prior

to the institution of the suit. Koran and Paryani had seven

children. They were Ayyappan, who died 20 years prior to the

suit and defendants 1 and 2 who are the male children and

plaintiffs 1 to 4 who are the female children. Plaintiffs 5 to 9 are

the legal heirs of deceased Ayyappan. Plaintiffs 1 to 4 and 5 to 9

together claimed 5/7 shares over the property. The suit was

resisted by the 1st defendant. His only contention was that the

house in the plaint schedule property was constructed by him and

he therefore claimed a reservation of the said house without any

R.S.A.No.93 of 2007 3

valuation. The courts below concurrently allowed the plaintiff’s

claim and passed a preliminary decree for partition as prayed for.

With regard to the claim of the appellant/1st defendant regarding

the house, it was found that apart from the fact that he did not

mount the witness box or adduce any defence evidence, the

evidence already in record was to the effect that the house was

constructed by Paryani.

4. In the face of this concurrent finding of facts by the

courts below, the appellant is not entitled to claim any

reservation of the house without any valuation in his favour.

None of the questions of law formulated in the memorandum of

appeal arises for consideration in the second appeal which is

accordingly dismissed.

V.RAMKUMAR
JUDGE.

bkn/-