Kerala High Court
Manojkumar K.G vs K.P.Prameela on 7 November, 2008
Author: Thottathil B.Radhakrishnan
Bench: Thottathil B.Radhakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI
WEDNESDAY, THE 16TH DAY OF JANUARY 2013/26TH POUSHA 1934
R.F.A. No. 212 of 2009 ( C)
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AGAINST THE JUDGMENT AND DECREE IN O.S.NO.59/2006 of II ADDITIONAL
SUBORDINATE JUDGE'S COURT, KOZHIKODE DATED 07-11-2008
APPELLANT/IST DEFENDANT:
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MANOJKUMAR K.G, S/O. LATE K. GOVINDAN,
'ASIRWAD', PAVAKKULAM TEMPLE ROAD, ERNAKULAM
KALOOR, KOCHIN-17.
BY ADV. SMT.LEKHA SURESH
BY ADV. SMT. MEERA SIDHARTH
RESPONDENTS/PLAINTIFFS & DEFENDANTS 2 & 3:
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1. K.P.PRAMEELA, D/O. LATE SRI. K. GOVINDAN,
'NEST', PARAMMAL ROAD, MALAPARAMBA
CALICUT-9, VENGERI AMSOM, NEDUNGOTTUR DESOM
KOZHIKODE TALUK.
2. K.G.URMILA, D/O.LATE SRI.K.GOVINDAN,
RESIDING AT T.C.49/198-A, 'MUDRA' 49, VANIYATH LANE
MUTHUVANMUKIL, POOJAPPURA, THIRUVANANTHAPURAM
THIRUMALA AMSOM DESOM, THIRUVANANTHAPURAM TALUK
THIRUVANANTHAPURAM DISTRICT.
3. K.G.SHYAMALA, D/O.LATE SRI.K.GOVINDAN,
'ANASWARA', PARAMMAL ROAD, MALAPARAMBA
CALICUT-9, VENGERI AMSOM, NEDUNGOTTUR DESOM
KOZHIKODE TALUK AND DISTRICT.
4. SULABHA KRISHNA KUMAR,
W/O.LATE KRISHNA KUMAR, 'AMBILI', MARUDOOR ROAD
CHEROOR, TRICHUR-8.
5. GOUTHAM, (MINOR),
S/O.LATE SRI.K.G.KRISHNA KUMAR
REP.BY MOTHER AND GUARDIAN SMT.SULABHA KRISHNA
KUMAR, 'AMBILI', MARUDOOR ROAD
CHEROOR, TRICHUR-8.
R1 TO R3 BY ADV. SMT.SUMATHI DANDAPANI (Sr.)
BY ADV. SRI. MILLU DANDAPANI
R4 & R 5 BY ADV. SRI.PHILIP ANTONY CHACKO
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 16-01-2013,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
THOTTATHIL B. RADHAKRISHNAN
&
A.V. RAMAKRISHNA PILLAI, JJ.
====================
R.F.A. No. 212 of 2009
====================
Dated this the 16th day of January, 2013
JUDGMENT
THOTTATHIL B. RADHAKRISHNAN, J.
The first defendant in a suit for partition is the appellant. He challenges the preliminary decree to the limited extent of fastening him with liability to pay the mesne profits referable to plaint B schedule item 1 and plaint B schedule item 4.
2. Govindan and Karthiayani had three daughters and two sons. The three daughters are the plaintiffs. Son Krishnakumar left behind defendants 2 and 3.
3. The plaint proceeded on the basis that the income from plaint B schedule item No. 4, an item from Coimbatore, is being shared and enjoyed by all the parties. The plea is that the income is taken by the first plaintiff and distributed to all the sharers. The plaint B schedule item No.1 is an item in Kozhikode which is in the possession of R.F.A. No. 212 of 2009 -2- Benz Motors either as tenants or otherwise.
4. Having examined the impugned preliminary decree, we find that the court below has granted partition in terms of the shares due to the parties. There can be no controversy on that. There is no ground of appeal on that item.
5. Though in the decretal portion of the preliminary judgment, the court below has not mentioned the date from which the mesne profits have to be calculated, reverting to para 14 of the judgment it can be seen that the claim of share in profits is decided as due only from 1-1-2003 and that the plaintiffs are entitled to share in profits for the past three years before the date of the suit and future profits till separate allotment of their shares and the quantum of profits will be relegated to be adjudged in the final decree stage.
6. Without ascertaining the availability of profits and finding appropriation of profits by the first defendant from the Kozhikode property stated to be in the possession of Benz Motors, it is impermissible to conclude that it is the R.F.A. No. 212 of 2009 -3- first defendant who has to pay the mesne profits. It is not disputed before us that there has to be an enquiry into the amounts that would be available for division or to be reckoned as share in profits with regard to that item. This case be easily done if the person in possession, namely, Benz Motors is required under due process of law to state the payments, if any, made or amounts shown to be paid by it to the estate of Govindan. We are also told that there is a demand under the Income Tax Act and notice has been issued requiring Benz Motors to pay the amount. That can also be brought to evidence in the final decree stage. Insofar as plaint B schedule item No.4 (Coimbatore property) is concerned, it will be open to the parties to bring in evidence in the final decree stage as to whether any profits were actually shared as contended in the plaint and if so, what is the quantum that would reflect on accounting in the final decree stage. If the aforesaid are carried out in the final decree stage, we are of the view that the impugned preliminary decree can be given effect to, without any further order of remit at the preliminary decree stage. R.F.A. No. 212 of 2009 -4-
In the result, this appeal is ordered directing that any final decree application by any among the parties will be decided upon by the court below in the light of the aforesaid. No costs.
Sd/-
THOTTATHIL B. RADHAKRISHNAN, JUDGE Sd/-
A.V. RAMAKRISHNA PILLAI, JUDGE kvr/ /True copy/ P.S. to Judge R.F.A. No. 212 of 2009 -5- THOTTATHIL B. RADHAKRISHNAN & A.V. RAMAKRISHNA PILLAI, JJ.
==================== I.A.No. 1170 of 2009 in R.F.A. No. 212 of 2009 ==================== Dated this the 16th day of January, 2013 ORDER THOTTATHIL B. RADHAKRISHNAN, J.
Dismissed without prejudice to produce any such materials before the court below in the final decree proceedings.
THOTTATHIL B. RADHAKRISHNAN, JUDGE A.V. RAMAKRISHNA PILLAI, JUDGE kvr/