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.
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R.F.A.NO.117 OF 2009
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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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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
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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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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.