Kerala High Court
Sreeramani Amma vs Jayalakshmi Amma on 22 September, 2010
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 35155 of 2004(I)
1. SREERAMANI AMMA,D/O.ELLATH KALLYANIKUTTY
... Petitioner
Vs
1. JAYALAKSHMI AMMA, D/O.ELLATH
... Respondent
2. SANKARANARAYANA PANICKER,
3. SREEKUMARI AMMA, D/O.ELLATH
4. ELLATHRADHAKRISHNA, S/O.SREEKUMARI AMMA,
5. C.K.SAVITHRI AMMA,
6. C.K.ARAVINDAKSHAN,
7. C.K.MEENAKUMARI,
8. C.K.CHITRA, D/O.SANKARANARAYANA PANICKER
9. PADMAVATHY AMMA, D/O.ELLATH
10. PRABHAKARA PANICKER, D/O.ELLATH
For Petitioner :SRI.S.V.BALAKRISHNA IYER (SR.)
For Respondent :SRI.M.P.KRISHNAN NAIR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :22/09/2010
O R D E R
THOMAS P. JOSEPH, J.
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W.P.(C) No.35155 of 2004
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Dated this the 22nd day of September, 2010.
JUDGMENT
This Writ Petition is filed by the plaintiff in O.S.No.13 of 1988 of the court of learned Sub Judge, Tirur which is for partition of the suit property. Though petitioner/plaintiff claimed that the family house may be allotted to her as she constructed the building sometime in the year 1979, preliminary decree did not provide for that. The preliminary decree was challenged in appeal by petitioner/plaintiff. The first appellate court found that there is no evidence to show that the family house was constructed by petitioner using her funds. She challenged that judgment and decree in Second Appeal before this Court. This Court though observed that finding of first appellate court and trial court being one of fact no interference is called for in the Second Appeal but directed the final decree court to consider equities between the parties in the matter of allotment of house. That was followed by respondent Nos.1 and 2 filing I.A.No.547 of 2002 for passing a final decree. Petitioner claimed that the family house be allotted to her. Final decree court considered the request and by order dated October 12, 2004 allotted the house to respondent No.1 and directed the Advocate Commissioner to value the house and the appurtenant land. That order is under challenge. It is contended on behalf of the petitioner that in Ext.P2, application for passing final decree filed by respondent Nos.1 and 2/defendant Nos.2 and 5, no request was made to allot the house to respondent WP(C) No.35155/2004 2 No.1 and on the other hand petitioner, right from the beginning was claiming that the house be allotted to her. It is also contended that respondent Nos.1 and 2 are residing together in a house jointly owned by them and that respondent No.2 has put up respondent No.1 with the present claim for allotment of the house. Learned counsel prayed that Ext.P3 order passed by the final decree court directing the Advocate Commissioner to allot the family house to respondent No.1 calls for interference. Counsel for respondent Nos.1 and 2 contend that the order calls for no interference.
2. Though petitioner/plaintiff had a claim that she constructed the family house that was found against by the trial and first appellate courts and this Court while disposing of the Second Appeal vide judgment dated 24.02.2003 did not interfere with that finding. It is only that petitioner was permitted to make a plea based on equity in the final decree court. True, that in Ext.P2, application for passing final decree respondent Nos.1 and 2 did not make any specific claim for allotment of the family house to respondent No.1. But in the light of the direction in Ext.P1, judgment of this Court in Second Appeal that question was to be decided by the final decree court notwithstanding whether there was any claim made by either of the parties. Hence the mere fact that in Ext.P2, application there is no claim for allotment of family house to respondent No.1 could not prevent the final decree court from passing appropriate orders considering the equity between the parties.
WP(C) No.35155/2004 3
3. Husband of petitioner/plaintiff gave evidence as PW1 and stated that respondent Nos.1 and 2 are residing together in the house jointly owned by them. But he was not able to produce any evidence in support of that. It has come out in evidence through PW1 that petitioner owns two acres of garden land and 80 cents of paddy field near the family house and is presently residing at Ozhur about 35-40 kms away from the family house. According to the petitioner she is a retired teacher and during her retired life she wanted to stay in the family house and for that purpose the family house is to be allotted to her. Respondent No.1 produced Ext.B1, ration card to show that she has been residing in the family house. It is seen from Ext.P3, order that in the course of enquiry, counsel for respondent No.1 had produced copy of subsequent ration card also (to show that respondent No.1 is residing in the family house). But that was not admitted in evidence as it was a copy of ration card subsequent to Ext.B1. Petitioner was not able to produce any evidence to show that respondent No.1 is residing elsewhere. Thus there is evidence to show that respondent No.1 is residing in the family house. A further fact which the final decree court taken into account is that respondent No.1 is an unmarried lady and she had no other roof to stay in while petitioner is placed in a better position having two acres of garden land and 80 cents of paddy field near the family house and is residing with her husband and children at Ozhur about 35-40 kms away from the family house. In these circumstances equity worked in favour of respondent No.1 and accordingly the final decree court has directed WP(C) No.35155/2004 4 Advocate Commissioner to allot the family house with appurtenant land to respondent No.1 after proper valuation. On the facts and evidence on record I find no juridical error in the order or perversity in the finding calling for interference under Article 227 of the Constitution.
Writ Petition is dismissed without any order as to cost.
I.A.Nos.14354 of 2005 and 12567 of 2010 will stand dismissed.
THOMAS P.JOSEPH, Judge.
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