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.
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S.A.No. 256 OF 1993
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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/-