Kerala High Court
Sosamma Ittoop vs Annamma Kuruvilla on 21 November, 2014
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
WEDNESDAY, THE 1ST DAY OF APRIL 2015/11TH CHAITHRA, 1937
RFA.No. 32 of 2015 ()
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IA. NO. 1159/1991 (FDA) IN OS.NO. 121/1985 OF SUB COURT, THODUPUZHA
DATED 21/11/2014
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APPELLANTS/ADDITIONAL DEFENDANTS 20 TO 23 JUDGMENT DEBTORS :
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1. SOSAMMA ITTOOP,AGED 75 YEARS
W/O.CHACKO ITTOOP,ANCHERIL HOUSE, ADIMALY P.O.
DEVIKULAM TALUK.
2. JACOB ITTOOP,AGED ABOUT 50 YEARS
S/O.CHACKO ITTOOP,ANCHERIL HOUSE, KOTHAMANGALAM P.O.
KOTHAMANGALAM TALUK.
3. REGI ITTOOP,AGED ABOUT 38 YEARS
S/O.CHACKO ITTOOP,ANCHERIL HOUSE, ADIMALY P.O.
DEVIKULAM TALUK
4. ROOBY ITTOOP,AGED ABOUT 47 YEARS
D/O.CHACKO ITTOOP,W/O.N.K.MATHEW
KOMAKATTU HOUSE, CHILAVANNOOR SOUTH,
COCHIN-682 020.
BY ADVS.SRI.JOHNSON MANAYANI
SRI.BENHUR JOSEPH MANAYANI
SRI.JEEVAN MATHEW MANAYANI
RESPONDENT(S) :
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1. ANNAMMA KURUVILLA
W/O.KURUVILLA, RESIDING AT PUKADIYIL HOUSE
ANGADY KARA, KOTHAMANGALAM VILLAGE
KOTHAMANGALAM TALUK-686 691.
2. KUNJUAMMA KURUVILLA
D/O.KURUVILLA, RESIDING AT PUKADIYIL HOUSE
ANGADY KARA, KOTHAMANGALAM VILLAGE
KOTHAMANGALAM TALUK-686 691.
...2/-
RFA.No. 32 of 2015 () -2-
*3. C.PHILIP
RETIRED HEADMASTER,
RESIDING AT ANCHERIL VEEDU
KOTHAMANGALAM VILLAGE,
KOTHAMANGALAM TALUK.(DIED)-686 691. (DELETED)
*4. C.ITTOOP
RESIDING AT ANCHERIL HOUSE, ADIMALY KARA
MANNAMKANDOM VILLAGE,
DEVIKULAM TALUK (DIED)-685 613. (DELETED)
*5. CHACKO MATHEW
RESIDING AT ANCHERIL HOUSE, ADIMALY KARA
MANNAMKANDOM VILLAGE,
DEVIKULAM TALUK (DIED)-685 613. (DELETED)
6. JACOB CHACKO
RESIDING AT ANCHERIL HOUSE, ADIMALY KARA
MANNAMKANDOM VILLAGE, DEVIKULAM TALUK
NOW WORKING AS SUBJECT MATTER SPECIALIST
VETERINARY POLY CLINIC, MUNNAR,
IDUKKI DITRICT-685 602.
7. ACHAMMA CHACKO
RESIDING AT ANCHERIL VEEDU, KOTHAMANGALAM VILLAGE
KOTHAMANGALAM TALUK-686 691
*8. ANNAMMA CHACKO
W/O.CHACKO, ANCHERIL HOUSE,
MANNAMKANDOM VILLAGE,
DEVIKULAM TALUK. (DIED)-685 613. (DELETED)
9. THOMAS MATHEWKUTTY
KAYYALAKKAKATHU HOUSE, PULIYANNOOR VILLAGE
ARUNAPURAM KARA, PALAI-686 514.
10. THOMAS THOMAS
KAYYALAKKAKATHU HOUSE, PULIYANNOOR VILLAGE
ARUNAPURAM KARA, PALAI-686 574.
11. THOMAS AUGUSTHY
KAYYALAKKAKATHU HOUSE, PULIYANNOOR VILLAGE
ARUNAPURAM KARA, PALAI-686 574.
12. THOMAS ANTONY
KAYYALAKKAKATHU HOUSE, PULIYANNOOR VILLAGE
ARUNAPURAM KARA, PALAI-686 574.
13. MARIYAMMA THOMAS
KAYYALAKKAKATHU HOUSE, PULIYANNOOR VILLAGE
ARUNAPURAM KARA, PALAI (DIED)-686 574.
...3/-
RFA.No. 32 of 2015 () -3-
14. MAGAY CHACKO
KAYYALAKKAKATHU HOUSE, PULIYANNOOR VILLAGE
ARUNAPURAM KARA, PALAI-686 574.
15. LATHA CHACKO
KAYYALAKKAKATHU HOUSE, PULIYANNOOR VILLAGE
ARUNAPURAM KARA, PALAI-686 574.
16. CHACKO THOMAS
KAYYALAKKAKATHU HOUSE, PULIYANNOOR VILLAGE
ARUNAPURAM KARA, PALAI-686 574.
*17. JACOB PHILIP, AGED 48 YEARS
S/O.PHILIP, ADVOCATE, THODUPUZHA
RESIDING AT ANCHERIL HOUSE
KOTHAMANGALAM KARA
P.O. KOTHAMANGALAM TALUK.(DIED)-686 691. (DELETED)
* RESPONDENTS NO.3, 4, 5, 8 & 17 DELETED FROM THE PARTY ARRAY
VIDE ORDER DATED 19/01/2015 IN I.A. NO.105/2015.
18. ANNIE PHILIP, AGED 45 YEARS,
W/O.DR.THAMBI ABRAHAM, ASST. DIRECTOR,
ANIMAL HUSBANDRY
RESIDING AT PUTHENPURACKAL HOUSE
NEAR ST.JOSEPH'S HIGH SCHOOL, KOTTAYAM-686 510.
19. SHEELA, AGED 45,
RESIDING AT ANCHERI HOUSE, KOTHAMANGALAM VILLAGE
KOTHAMANGALAM -686 691.
20. PHILIP JACOB,
S/O.JACOB PHILIP, AGED 19 YEARS
ANCHERIL HOUSE, KOTHAMANGALAM VILLAGE,
KOTHAMANGALAM TALUK-686 691..
21. MATHEW JACOB
S/O.JACOB PHILIP, AGED 16 YEARS
ANCHERIL HOUSE,
KOTHAMANGALAM TALUK-686 691.
22. SOSAMMA,
W/O.LATE CHACKO MATHEW,
AGED ABOUT 75 YEARS, ANCHERIL HOUSE
ADIMALY KARA, MANNAMKANDOM VILLAGE
DEVIKULAM TALUK, IDUKKI DISTRICT-685 613.
23. BEENA,
D/O.LATE CHACKO MATHEW,
AGED ABOUT 50 YEARS, ANCHERIL HOUSE
ADIMALY KARA, MANNAMKANDOM VILLAGE
DEVIKULAM TALUK IDUKKI DISTRICT-685 613.
...4/-
RFA.No. 32 of 2015 () -4-
24. BESY,
D/O.LATE CHACKO MATHEW,
AGED ABOUT 47 YEARS, ANCHERIL HOUSE
ADIMALY KARA, MANNAMKANDOM VILLAGE
DEVIKULAM TALUK, IDUKKI DISTRICT-685 613.
25. BIJU,
S/O.LATE CHACKO MATHEW,
AGED ABOUT 45 YEARS, ANCHERIL HOUSE
ADIMALY KARA, MANNAMKANDOM VILLAGE
DEVIKULAM TALUK, IDUKKI DISTRICT-685 613.
26. BIJI,
D/O.LATE CHACKO MATHEW,
AGED ABOUT 43 YEARS, ANCHERI HOUSE
ADIMALY KARA, MANNAMKANDOM VILLAGE
DEVIKULAM TALUK, IDUKKI DISTRICT-685 613.
27. BINU,
S/O.LATE CHACKO MATHEW,
AGED ABOUT 40 YEARS, ANCHERIL HOUSE
ADIMALY KARA, MANNAMKANDOM VILLAGE
DEVIKULAM TALUK, IDUKKI DISTRICT-685 613.
28. BOBAN,
S/O.LATE CHACKO MATHEW,
AGED ABOUT 37 YEARS, ANCHERIL HOUSE
ADIMALY KARA, MANNAMKANDOM VILLAGE
DEVIKULAM TALUK, IDUKKI DISTRICT-685 613.
29. BINDHU
D/O.LATE CHACKO MATHEW,
AGED ABOUT 34 YEARS, ANCHERIL HOUSE
ADIMALY KARA, MANNAMKANDOM VILLAGE
DEVIKULAM TALUK, IDUKKI DISTRICT-685 613.
R1 & R2 BY SENIOR ADVOCATE SRI.S.V.BALAKRISHNA IYER
BY ADVS. SRI.P.B.KRISHNAN
SRI.P.M.NEELAKANDAN
SRI.P.B.SUBRAMANYAN
SRI.SABU GEORGE
SRI.S.NITHIN (ANCHAL)
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD
ON 16-02-2015, THE COURT 01-04-2015 Y DELIVERED THE FOLLOWING:
Mn
P.B.SURESH KUMAR, J.
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R.F.A.No.32 OF 2015
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Dated this the 1st day of April, 2015
JUDGMENT
The final decree and judgment in O.S.No.121 of 1985 on the file of the Court of the Subordinate Judge, Thodupuzha is under challenge in this appeal. Additional defendants 20 to 23 are the appellants.
2. O.S.No.121 of 1985 is a suit for partition. Respondents 1 and 2 are the plaintiffs in the suit. The extent of the plaint schedule property in respect of which partition was sought for was shown in the plaint as 6.65 acres. The trial court passed a preliminary decree declaring the one half right of the plaintiffs in the plaint schedule property. The plaintiffs were also allowed the share of profits from the date of suit till the date of parting of possession from the second defendant. Pursuant to the preliminary decree, the plaintiffs have applied for passing of a final decree. An Advocate Commissioner was appointed in the final decree proceedings to effect the partition with the aid of a Surveyor. The Advocate Commissioner appointed in the suit initially filed Ext.C1 preliminary report and later filed Ext.C2 final R.F.A.No.32 OF 2015 : 2 : report. Along with Ext.C2 report, the Advocate Commissioner had also filed Ext.C2(a) rough sketch of the property and Ext.C2(b) statement of income. The second defendant has filed objections to the reports of the Advocate Commissioner. He has also filed an application as I.A.No.654 of 2004 to set aside the reports of the Advocate Commissioner. Since the reports of the Advocate Commissioner were objected by the second defendant, the Advocate Commissioner was examined in the proceedings. Thereafter, on a consideration of the materials on record, the court below passed the impugned final decree and judgment in terms of the Ext.C2 report and Ext.C2(a) plan. As per the impugned final decree, an extent of 3 acres and 65 cents of property shown as plot A1 in Ext.C2(a) plan was alloted to the plaintiffs and an extent of 3 acres and 42 cents of property shown as plot B1 in Ext.C2(a) plan was alloted to the second defendant. The second defendant was also directed to pay a sum of Rs.48,975.44 to the plaintiffs towards owelty. The second defendant, who was in possession of the property, was further directed to pay to the plaintiffs a sum of Rs.49,148/- towards share of profits from the year-round crops in the property and a sum of Rs.3,87,835/- R.F.A.No.32 OF 2015 : 3 : towards their share of profits from the seasonal crops in the property. Additional defendants 20 to 23, who are the legal representatives of the deceased second defendant, are aggrieved by the said final decree and judgment and hence this appeal.
3. Heard Sri.Johnson Manayani, learned counsel for the appellants and Sri.S.V.Balakrishna Iyer, learned Senior counsel for respondents 1 and 2.
4. The learned counsel for the appellants contended that the extent of the property sought to be partitioned was only 6 acres and 65 cents and the Commissioner has partitioned a total extent of 7 acres and 7 cents, treating an item of property owned by the second defendant measuring 42 cents also as part of the plaint schedule property. The learned counsel has also contended that the Advocate Commissioner has allotted an extent of 3 acres and 65 cents to the plaintiffs, but alloted only an extent of 3 acres and 42 cents to the second defendant by showing an exorbitant valuation of the property allotted to the second defendant. He further contended that the assessment of the share of profits made by the Advocate Commissioner for the year-round R.F.A.No.32 OF 2015 : 4 : crops as also the seasonal crops in the property were exorbitant. He has also contended that the second defendant who was in possession of the property had improved the property and that the Advocate Commissioner had not taken note of the amounts spent by the second defendant for improving the property in the matter of computing the owelty payable by the second defendant.
5. True, the extent of the property sought to be partitioned was shown in the plaint as 6 acres and 65 cents. However, the Advocate Commissioner appointed in the final decree proceedings on measurement found that the extent of the property is 7 acres and 7 cents. The specific case of the second defendant was that he owned an extent of 42 cents on the eastern side of the plaint schedule property and partition was effected by the Advocate Commissioner treating the said 42 cents also as part of the plaint schedule property. Though it was contended by the second defendant that he owned 42 cents of property on the eastern side of the plaint schedule property, the said contention was not established by producing the title deed and other documents relating to the said property. Further, the Advocate Commissioner who R.F.A.No.32 OF 2015 : 5 : was examined in the proceedings as PW3 has deposed that he has identified the plaint schedule property with reference to its boundaries and it was found that the extent of property available within the boundary of the plaint schedule property was 7.07 acres. The Advocate Commissioner has also deposed that the identification of the property was made by him based on the survey records namely, Exts.B2 and B3 re-survey plans. It is settled that when there is a conflict between the area and the boundaries, the description of the boundaries should be accepted in preference to the area for determining the extent. The contention raised by the second defendant that the property sought to be partitioned has not been correctly identified by the Advocate Commissioner,in the circumstance, fails.
6. Coming to the valuation of the property, it is seen from Ext.C2 report of the Advocate Commissioner that the Advocate Commissioner has valued the property separately basing on its potentiality, nature and presence of year-round vegetation. There is nothing on record to indicate that the valuation made by the Advocate Commissioner is incorrect or unsustainable. In the course of the arguments, the learned R.F.A.No.32 OF 2015 : 6 : Senior counsel for the plaintiffs submitted that valuation made by the Advocate Commissioner is fair and reasonable and the plaintiffs are ready to accept the lesser extent of property allotted to the second defendant as their share, if the appellants are agreeable for the said proposal. The learned counsel for the appellants submitted that the appellants are not prepared to accept the said offer made by the plaintiffs. It is thus evident that the contention regarding valuation of the property is raised without any bonafides.
7. Coming to the contentions regarding the share of profits, even though the plaintiffs are entitled to share of profits from the date of the suit till the parting of possession from the second defendant, in the course of the proceedings, the learned counsel for the plaintiffs has filed a memo stating that the plaintiffs are confining their claim for share of profits till 18.8.1999, the date on which the Advocate Commissioner appointed in the proceedings has submitted his final report, for litigation convenience. It is beyond dispute that the successors of the second defendant are in possession of the property even now. The plaintiffs have relinquished their right to claim share of profits as per R.F.A.No.32 OF 2015 : 7 : the decree for more than 15 years. In the said circumstances, even if it is found that the share of profits payable to the plaintiffs as determined by the Advocate Commissioner is slightly more than what is actually payable to them, the contentions relating to the share of profits are not worth considering in this appeal. That apart, it is seen that the Advocate Commissioner has assessed the value of the crops based on the standard value of the crops maintained by the Bureau of Economics and Statistics Department. As such, there is no merit also in the said contentions.
8. Coming to the contention that the second defendant has improved the property and that the value of improvements has not been reckoned by the Advocate Commissioner, it is settled that the law declines to compel a co-sharer to pay for improvements made on the common property by another co-sharer without the former's authorisation. However, as a matter of equity, the court will make every effort to effect the division in such a way by alloting to the co-sharer who has made the improvements the portion of the property where the improvements stands so long as this can be done consistently with the R.F.A.No.32 OF 2015 : 8 : proportion of the property to which he is entitled and without causing prejudice to the other co-sharers. But, any such equity will become incapable of being worked out in cases where the entire property to be partitioned has been either built upon or otherwise improved. In such cases where one joint tenant or tenant-in-common covers the whole of the estate with valuable improvements so that it is impossible for his co-tenant to obtain his share of the estate without including a part of the improvements so made, the tenant making the improvements would not therefore, be entitled to compensation notwithstanding the fact that they may have added greatly to the value of the land. [See Mammathu v. Kathijumma Umma, [1965 KLT 655)]. In the instant case, the pleadings regarding the improvements made are vague and sketchy. There is no satisfactory material to infer that the predecessor of the appellants have improved the property. Even if it is taken that the predecessor of the appellants had improved the property, sufficient materials are not available on record to make an equitable partition on the basis of the improvements. As such, the aforesaid contention also does not merit consideration.
R.F.A.No.32 OF 2015 : 9 : In the aforesaid facts and circumstances, I do not find any merit in the appeal and the same is, accordingly, dismissed.
Sd/-
P.B.SURESHKUMAR, JUDGE jes