High Court Kerala High Court

Kolapram Bhaskaran vs Thankamma Gopal on 7 December, 2007

Kerala High Court
Kolapram Bhaskaran vs Thankamma Gopal on 7 December, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

SA No. 256 of 1993(E)



1. KOLAPRAM BHASKARAN
                      ...  Petitioner

                        Vs

1. THANKAMMA GOPAL
                       ...       Respondent

                For Petitioner  :SRI.C.KRISHNAN(KANNUR)

                For Respondent  :SRI.GOVINDH.K.BHARATHAN, N.MADHAVAN

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :07/12/2007

 O R D E R
                   M.SASIDHARAN NAMBIAR, J.
                      ...........................................
                      S.A.No. 256               OF 1993
                     ............................................
        DATED THIS THE 7th DAY OF DECEMBER, 2007

                                 JUDGMENT

Second defendant in O.S.39 of 1999 on the file of Munsiff

Court, Kannur is the appellant. On the death of appellant,

additional appellants 2 to 5 were impleaded as his legal heirs.

Respondents 1 to 5 were subsequently impleaded as legal heirs

of original plaintiff. 6th respondent is the first defendant. On the

death of 6th respondent, additional 8th respondent was impleaded

as his only legal heir. 7th respondent got himself impleaded as an

assignee from 8th respondent. As per the preliminarty decree

dated 30.10.1989, plaint schedule properties, consisting of two

items, were found to be available for partition and directed to be

divided into three equal shares and for allotment of one share

each to plaintiff and defendants 1 and 2. I.A.754 of 1990 was

filed for passing a final decree in accordance with the

preliminary decree. As per the final judgment dated 12.4.1991,

a final decree was passed in accordance with Ext.C8 and C9

plan accepting the allotment as provided under Exts.C6 share

list. Consequently owelty was directed to be paid in accordance

with Ext.C6 share list. Under the final decree so passed,

SA 256/1993 2

respondents 1 to 5, the legal heirs of original plaintiff were

alloted plot A in Ext.C8 plan and plot A in Ext.C9 plan. First

defendant was alloted plot C respectively in Ext.C8 and C9 plans.

Second defendant was alloted respectively plots B in Ext.C8 and

C9 plan. Contending that allotment of shares are not equitable,

appellant second defendant filed A.S.223 of 1991. Learned Sub

Judge found that plot A in Ext.C8 plan is adjacent to plot B in

Ext.C9 plan alloted to the appellant and in such circumstances, it

should have been alloted to appellant instead of plot B in Ext.C8

plan. Learned Sub Judge therefore accepted Ext.C7 share list

instead of Ext.C6 share list accepted by trial court. Appeal was

allowed and a final decree was modified in accordance with

Ext.C7 share list and allotment. This appeal is filed challenging

the said modified final decree contending that after accepting

Ext.C7 share list, first appellate court wrongly directed the

payment of original owelty amount itself as directed by the trial

court accepting Ext.C6 share list and it is illegal and is to be set

aside.

2. Second appeal was admitted formulating the following

substantial questions of law.

1)When the lower appellate court accepting the alternative share

SA 256/1993 3

list submitted by the Commissioner, alloted the properties as per

the alternate share list, is the lower appellate court legally right

in ordering payment of owelty amount as provided in the original

share list.

3. Learned counsel appearing for appellant was heard.

Though the question invovled in the appeal cannot strictly be

termed as a substantial question of law, as the appeal has

already been admitted on this question of law and as first

appellate court committed an error in accepting Ext.C7 share

list and directing payment of owelty amount as provided under

Ext.C6 share list and it is found illegal, it is necessary to modify

the final decree in the second appeal itself without directing

parties to approach the first appellate court to correct the error.

4. It is clear from the final decree passed by the trial court

that the final decree was passed accepting the allotment made

under Ext.C6 share list. First appellate court found that the

allotment should not have been done as provided under Ext.C6

and instead should have been done as provided under Ext.C7

share list. It is for that reason, the decree was modified

accepting Ext.C7 share list. By doing so, first appellate court

alloted plot A of Ext.C8 plan, to the second defendant intead of

SA 256/1993 4

plot B in Ext.C8 plan. So also though trial court alloted plot A in

Ext.C8 plan to the plaintiff, in view of the allotment of that plot

to the second defendant, first appellate court alloted plot B in

Ext.C9 plan instead of plot A in Ext.C8 which was originally

alloted. By modifying the final decree, plaintiff was alloted plot

C8 and C9 in Ext.C9 plan and second defendant, plot A and B in

Ext.C8 plan. Unfortunately, while modifying that decree, first

appellate court omitted to take note of the difference in the

share value and and the consequential payment of difference in

owelty amount payable by second defendant towards

equalisation of shares. As per the modified allotment, instead of

Rs.51815.51 being the share value of one sharer, plaintiff was

alloted plots A and B in Ext.C9 plan, having a total value of

Rs.37915. Therefore, as per the mofidied allotment, instead of

original owelty amount of Rs.22151.51, legal heirs of the original

plaintiff are only entitled to get owelty amount of Rs.13900.51.

Without noting this aspect, in the modified final decree,

appellant was directed to pay Rs.22,163.51, as provided

originally by the trial court in accordance with Ext.C6 share list.

It is erroneous and is to be modified. There is no change either

in the allotment of shares or owelty amount payable to the first

SA 256/1993 5

defendant.

5. Appeal is therefore allowed in part. The final decree

passed by Sub Court, Thalassery in A.S.223 of 1991 is modified

with regard to the owelty amount payable by second defendant

as follows.

6. Second respondent/second defendant shall also pay

Rs.13,900.51 to petitioners 2 to 6 and Rs.13,346.41 to first

defendant for the purpose of equilisation of share value and plots

A and B in Ext.C8 plan alloted to second defendant/second

respondent will be a charge for the said amount.

M.SASIDHARAN NAMBIAR, JUDGE

lgk/-