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.
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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/-