Partly allowed

Sreeni Kumar v. Ashalatha@ Manku

Kerala HC12 Nov 2012OP(C)/2789/2012

Case brief

AI extract

What is this about?

In a partition suit proceeding, the Court modified an order regarding the auction of Plot G, directing it to be auctioned only among the legal heirs of Defendants 2 and 4 due to their occupancy and share interests.

What did the court decide?

The order directing auction amongst all sharers was set aside. Auction of Plot G to be confined to legal heirs of Defendants 2 and 4. Final proceedings within four months.

Sreeni Kumar Vs Ashalatha@ Manku — Partition | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE V.CHITAMBARESH

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MONDAY, THE 12TH DAY OF NOVEMBER 2012/21ST KARTHIKA 1934

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OP(C).No. 2789 of 2012 (O)

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FDA.NO.2614/2010 IN OS.394/1998 of PRINCIPLE MUNSIFFS COURT, ERNAKULAM

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PETITIONER(S)/PETITIONERS/RESPONDENTS 16 TO 18:

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SREENI KUMAR,AGE 36 YEARS, S/O KUNJUMON (LATE), ALUNKAL HOUSE CHITTEKODATH PARAMBIL, ELAMAKKARA, COCHIN-682026.

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PRASAD KUMAR,, AGED 34 YEARS

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S/O KUNJUMON (LATE), ALUNKAL HOUSE

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CHITTEKODATH PARAMBIL, ELAMAKKARA, COCHIN-682026.

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PRAMOD KUMAR, AGED 32 YEARS

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S/O KUNJUMON (LATE), ALUNKAL HOUSE,

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CHITTEKODATH PARAMBIL, ELAMAKKARA, COCHIN-682026.

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BY ADVS.SRI.K.V.JAYACHANDRAN

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SRI.RAJU V.MATHEW

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SRI.B.JAYASANKAR

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RESPONDENT(S)/RESPONDENTS/PETITIONER AND RESPONDENTS:

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ASHALATHA@ MANKU, AGED 55 YEARS,

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D/O THAI, RESIDING AT UZHUNNUKATTIL VEETTIL,

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MANJUMMAL P.O., PIN:683 501, ERNAKULAM DISTRICT.

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LEELA, AGED 58 YEARS,

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W/O SUKUMARAN, RESIDING AT ALUNKAL HOUSE, VADUTHALA, COCHIN-682023.

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SUNIL, AGED 41 YEARS,

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S/O SUKUMARAN, RESIDING AT ALUNKAL HOUSE, VADUTHALA, COCHIN-682023.

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SINDHU,, AGED 39 YEARS,

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D/O SUKUMARAN, RESIDING AT ALUNKAL HOUSE, VADUTHALA, COCHIN-682023.

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SUNITHA, AGED 37 YEARS,

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D/O SUKUMARAN, RESIDING AT ALUNKAL HOUSE, VADUTHALA, COCHIN-682023.

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- MURALEEDHARAN,, AGED 49 YEARS,

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S/O THAI, RESIDING AT ALUNKAL HOUSE, VADUTHALA, COCHIN-682023.(DIED)

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OP(C).No. 2789 of 2012 (O)

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RAMA, AGED 44 YEARS, W/O LATE BABU, RESIDING AT ALUNKAL HOUSE, VADUTHALA, COCHIN-682023. 8. SHYNI, AGED 25 YEARS, D/O BABU, RESIDING AT ALUNKAL HOUSE, VADUTHALA, COCHIN-682023. 9. KANNAN, AGED 42 YEARS, S/O BABU, RESIDING AT ALUNKAL HOUSE, VADUTHALA, COCHIN-682023. 10. PADMINI, AGED 58 YEARS W/O LATE DAMODARAN, RESIDING AT ALUNKAL HOUSE, VADUTHALA, COCHIN-682023. 11. PREM KUMAR A.D., AGED 34 YEARS, S/O DAMODARAN, RESIDING AT ALUNKAL HOUSE, VADUTHALA, COCHIN-682023. 12. PRAVIN KUMAR A.D., AGED 32 YEARS, S/O DAMODARAN, RESIDING AT ALUNKAL HOUSE, VADUTHALA, COCHIN-682023. 13. PAMMI MOLE A.D., AGED 30 YEARS, W/O PRADEEP KUMAR, PARVATHI NIVAS, ALUNKAL, VADUTHALA, COCHIN-682023.

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*ADDL. RESPONDENTS NO.14 & 15 IMPLEADED 14. SUBHA, AGED 45 YEARS, W/O MURALEEDHARAN, RESIDING AT UZHUNNUKATTIL VEETTIL, MANJUMMAL P.O.,PIN.683501. 15. GOVINDH, AGED ABOUT 9,S/O MURALEEDHARAN, UZHUNNUKATTIL VEETTIL, MANJUMMAL P.O., PIN.683501, ERNAKULAM DIST. MINOR REPRESENTED BY THE GUARDIAN AND MOTHER SUBHA. ADDL. RESPONDENTS NO.14 & 15 IMPLEADED AS LEGAL HEIRS OF THE DECEASED 6TH RESPONDENT AS PER ORDER DATED 18.10.2012 IN I.A.13818/12 IN OP(C)2789/2012. R1,R14,R15 BY ADVS. SRI.PEEYUS A. KOTTAM SRI.JEFF JOSEPH R7-R9 BY ADVS. SRI.ANIL S.RAJ SMT.K.N.RAJANI SMT.ANILA PETER THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 12-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 2789 of 2012 (O)

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APPENDIX

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PETITIONER(S) EXHIBITS :

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EXHIBIT P1: COPY OF THE JUDGMENT DATED 18.10.2004 IN AS 23/2001 OF THE DISTRICT COURT ERNAKULAM.
EXHIBIT P2: COPY OF THE I.A.NO.2614/2009 FINAL DECREE APPLICATION FILED BY 1ST RESPONDENT BEFORE THE PRINCIPAL MUNSIFFS COURT ERNAKULAM.
EXHIBIT P3: COPY OF THE COUNTER AFFIDAVIT TO FDIA 2614/2009.
EXHIBIT P4: COPY OF THE INTERIM REPORT OF COMMISSIONER DATED 21.8.2009.
EXHIBIT P5: COPY OF THE COMMISSION REPORT DATED 28.9.2011 ALONG WITH THE SKETCH AND VALUATION REPORT.
EXHIBIT P6: COPY OF THE OBJECTION DATED 7.1.2012 FILED BY THE 1ST RESPONDENT TO THE COMMISSION REPORT.
EXHIBIT P7: COPY OF I.A.NO.546/2012 DATED 21.1.2012 FILED BY THE 1ST RESPONDENT.
EXHIBIT P8: COPY OF THE COUNTER AFFIDAVIT DATED 4.2.2012 TO THE I.A.NO.546/2012 FILED BY THE PETITIONER.
EXHIBIT P9: COPY OF THE ADDITIONAL COUNTER AFFIDAVIT DATED 16.7.2012 FILED BY THE PETITIONER.
EXHIBIT P10: COPY OF THE REPLY AFFIDAVIT DATED 24.7.2012 FILED BY THE 1ST RESPONDENT.
EXHIBIT P11: COPY OF THE ORDER DATED 4.8.2012 IN I.A.NO.546/2012.
RESPONDENTS'EXHIBITS : NIL

/ TRUE COPY /

P.A. TO JUDGE

V.CHITAMBARESH, J.

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O.P.(C) No.2789 of 2012

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Dated this the 12^th day of November, 2012

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JUDGMENT

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The matter arises in the final decree in a suit for partition of

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about 17.59 cents of land with buildings thereon. The preliminary

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decree for partition declared the shares of parties as follows:-

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(i) Plaintiff - 1/6 share.

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(ii) Defendants 1 to 4 - 1/6 share each.

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(iii) Defendants 5 to 7 together – 1/6 share.

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The Advocate Commissioner deputed in the final decree proceedings has divided the land into six plots after excluding the pathway. The building in plot C has been reserved to the 3^rd defendant in the preliminarily decree. Similarly the building in plot F has been reserved to the 1^st defendant in the preliminary decree. I am now concerned with the building in plot G which alone has a road frontage.

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It is in evidence that the building in plot G is a commercial building having different shop rooms. It is also conceded that portions of the building are occupied by the legal heirs of defendants 1, 2 and 4. Plot F where one building is

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O.P.(C) No.2789 of 2012

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situated is already reserved for the 1^st defendant as stated earlier. Therefore preference has to be between the legal heirs of defendants 2 and 4 as regards plot G. The plaintiff as well as the legal heirs of the 2^nd defendant have offered at the rate of Rs.5 lakhs per cent. I think the most feasible and just way to partition is to put plot G for auction between the legal heirs of defendants 2 and 4.

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The plaintiff is concededly not conducting business in the building in plot G. Ext.B13 referred to in the judgment in A.S.No.23 of 2001 does not spell out any reservation. Ext.B13 agreement would at best indicate that all the sharers are entitled to the value of the building in plot G. Preference of allotment of

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the building in plot G has to be worked out between the legal heirs of defendants 2 and 4. They occupy the building along with the legal heirs of the first defendant for the purpose of business.

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I set aside the order of the court below directing plot 'G' to be put in auction amongst all sharers. The auction shall be confined to the legal heirs of defendants 2 and 4. The successful bidder would not be entitled to the allotment of plots A, B and D.

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O.P.(C) No.2789 of 2012

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The valuation of plots A, B, C, D and F shall be on the basis of evidence. All parties are entitled to let in evidence to establish that the valuation made by the Commissioner is insufficient. The question of owelty towards equalisation of shares arises after a proper valuation of the plots is made on evidence.

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The order impugned in I.A.No.546 of 2012 in FDIA 2614 of 2009 in O.S.No.394 of 1998 on the file of the court of the Principal Munsiff of Ernakulam is modified accordingly. The court below shall conduct the auction and take the proceedings to a logical end within a period of four months from the date of receipt of copy of this judgment.

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V.CHITAMBARESH JUDGE

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mns/

Sreeni Kumar v. Ashalatha@ Manku

Case brief

What is this about?

What did the court decide?

Sreeni Kumar v. Ashalatha@ Manku

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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