IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 625 of 1998(A)
1. K.VASUDEVA BHAT
... Petitioner
Vs
1. ISHWARA BHAT
... Respondent
For Petitioner :SRI.K.G.GOURI SANKAR RAI
For Respondent :SRI.S.V.BALAKRISHNA IYER (SR.)
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :07/06/2010
O R D E R
M.N. KRISHNAN, J.
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A.S.NO.625 OF 1998
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Dated this the 7th day of June, 2010.
J U D G M E N T
This is an appeal preferred against the final decree
passed by the Subordinate Judge’s Court, Kasaragod in
I.A.No.719/1995 in O.S.No.141/1990. As per the preliminary
decree for partition, 6 out of 15 shares is set apart to the
share of the plaintiffs and remaining shares are set apart for
the share of the defendants. The court after consideration of
the Commissioner’s report alloted the property described in
share list No.1 to the share of the plaintiffs and the property
described in share list No. 2 of the Commissioner’s report
be allotted to the share of the 8th defendant and the
property comprised in R.S.No.598/2A3 in Ext.C1 be allotted
to D4 and D7 jointly. The court also directed the 8th
defendant to pay at the rate of Rs.3,355/= towards the share
of income for three years prior to the date of suit and from
the date of suit till appointment of the receiver. There is
also a provision for equalization of the shares.
2. I had perused the order passed by the learned
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Subordinate Judge in the final decree proceedings. The
court referred to the Commissioner’s report as well as
objection filed by the parties. There is a contention that
division of the property comprised in RS.558/1 in north south
direction was highly unequal. The court had considered
the lie of the lane and ultimately had passed the order. I
do not find any error committed by the Commissioner and
acceptance of the same by the court regarding the
allotment.
3. The learned counsel for the appellant very strongly
argued before me that the Commissioner was not correct in
fixing the income in the manner in which he has done it. The
suit was filed on 19.10.1990 and a receiver has taken
possession of the property in October 1995. As per the
preliminary decree, mesne profit is liable to be paid by the
plaintiffs three years prior to the institution of the suit and
till the date of appointment of the receiver. Suppose the
date is taken as 19.10.1990, from 19.10.1987 to 19.10.1990
three years past profits have to be paid. During the
pendency of the suit 5 years’ profits had to be paid till
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October 1995. The Commissioner had inspected the property
and was able to find 366 arecanut trees and 8 coconut
trees in that property. Whether more number of trees
were available and when it got withered away are only
guess work and so it is desirable that the number of trees
pointed out by the Commissioner at 366 arecanut trees can
be taken into consideration for the purpose of this case.
Immediately after the institution of the suit as there had
been some attention previously, it would have been better.
So I compartmentalise the period of 8 years into two
durations. For the first 4 year, I fix the number of trees at
366, yield at 150 areacanut per tree, price at 15 Ps per
arecanut and set apart 40% for cultivation expenses. When
this is done, the amount will come to Rs.5,781/= for each
year. For the next 4 year, I take the number of trees at
366, yield at 125 arecanut per tree, value at 20 Ps per
arecanut and 40% deduction as cultivation expenses, the
amount will come to Rs.6,330/-. 6 out of 15 shares due to the
plaintiffs during the first 4 year will be Rs.2,312/= and the
next four years at Rs.2,532/=. That is 9248+10128 making
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a total of Rs.19,376/= as profits from 19.10.1987 till
19.10.1995. So the order under appeal requires
modification only in that regard and in all other aspects, the
mode of allotment etc are confirmed.
The appeal is disposed of accordingly.
M.N. KRISHNAN, JUDGE.
cl
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A.S.NO.625 OF 1998
M.N. KRISHNAN, J.
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A.S.NO.625 OF 1998
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7th day of June, 2010.
J U D G M E N T