The High Court dismissed the appeals against the final decree in a partition suit. The court upheld the Commissioner's report, finding it constituted a fair division of the property and the appellant's requests for more space were unjust and unreasonable.
The Regular Second Appeals were dismissed. No costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN
TUESDAY, THE 19TH DAY OF FEBRUARY 2013/30TH MAGHA 1934
RSA.No. 817 of 2012 ()
---------------------AGAINST THE JUDGMENT IN AS.16/2010 of ADDL.SUB COURT,KOLLAM DATED 9.1.2011
AGAINST THE JUDGMENT IN I.A.281/94 IN OS.404/1983 of MUNSIFF COURT, KARUNAGAPPALLY DATED 21.12.2005 APPELLANT(S):
SANTHAMMA
PUTHENKOTTACKAKATHU VEEDU NJACKANAL MURI KAYAMKULAM VILLAGE
BY ADVS.SRI.B.KRISHNA MANI
RESPONDENT(S):
1. RAGHAVAN PILLAI SIVARAMA PILLAI KIZHAKKEKKARA PUTHEN VEEDU MEMANA MURI OACHIRA VILLAGE MEMANA P.O KOLLAM DISTRICT 691510
2. RAGHAVAN PILLAI SUKUMARA PILLAI KIZHAKKEKKARA PUTHEN VEEDU MEMANA MURI OACHIRA VILLAGE MEMANA P.O KOLLAM DISTRICT 691510
3. RAGHAVAN PILLAI SIVASANKARA PILLAI KIZHAKKEKKARA PUTHEN VEEDU MEMANA MURI OACHIRA VILLAGE MEMANA P.O KOLLAM DISTRICT 691510
4. JANAKI AMMA SANTHAKUMARI AMMA KIZHAKKEKKARA PUTHEN VEEDU MEMANA MURI OACHIRA VILLAGE MEMANA P.O KOLLAM DISTRICT 691510
5. KRISHNA PILLAI MURALEEDHARAN PILLAI KIZHAKKEKKARA PUTHEN VEEDU MEMANA MURI OACHIRA VILLAGE MEMANA P.O KOLLAM DISTRICT 691510
R1 TO 5 BY ADVS. SRI.P.B.SURESH KUMAR (SR.) SRI.LEO GEORGE
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19-02-2013, ALONG WITH RSA. 1309/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JJJ
N.K. BALAKRISHNAN, J.
R.S.A. Nos: 817 & 1309 of 2012
Dated this the 19th day of February, 2013
J U D G M E N T
Additional 2nd defendant in a suit for partition is the
appellant. The suit O.S. No:404/1983 was filed by one Easwari Pillai and Raghavan Pillai Sivarama Pillai against one Karunakara Panicker, who died pending suit; whose legal representative is the appellant herein. He was the additional 2nd defendant in the suit. The 1st plaintiff died during the pendency of the suit and so plaintiffs 3 to 8 were impleaded as legal representatives of deceased 1st plaintiff. A preliminary decree was passed holding that the plaintiffs are entitled to get 5/6 share over the plaint A schedule property and that the additional 2nd defendant/appellant is entitled to get the remaining 1/6 share. Final decree application was filed in which the Commissioner inspected and measured the property, based on which the final decree
R.S.A. Nos: 817 & 1309/2012
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was passed. That was challenged by the appellant herein in A.S. No.199/1995. The final decree passed by the trial court was set aside and the matter was remanded to the trial court. Again, Commissioner and Surveyor were appointed by the trial court. After measurement and causing division of the property, report and plan were filed. The appellant herein filed I.A. No.1418/2005 to set aside the Commissioner's report. That petition was dismissed and the final decree was passed, against which the appellant herein filed appeal as A.S. No. 17/2010. There was also an appeal filed by the 2nd plaintiff and others as A.S. No.16/2010. A.S. No.16/2010 happened to be filed since the owelty amount was not ordered to be paid to them by the appellant herein. That appeal was allowed accepting the Commissioner's report. Rs.1,30,200/- was directed to be given to the respondents as the owelty amount.
R.S.A. Nos: 817 & 1309/2012
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R.S.A. Nos: 817 & 1309/2012
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and that should be carved out from the property allotted to the plaintiffs. The request made on behalf of the appellant is unjust, unworkable and unreasonable. The lower appellate court has, in fact, found that the space already allotted to the appellant will satisfy her requirement. The sole idea is to get this matter further protracted. It was found that the Advocate Commissioner has effected a fair division of the plaint schedule property, in conformity with the direction issued by the appellate court in A.S. No. 199/95. Therefore, the grievance voiced by the appellant is unmerited. No substantial question of law is involved.
In the result these Regular Second Appeals are dismissed. No costs.
Sd/N.K. BALAKRISHNAN, JUDGE
//True Copy//
P.A. to Judge
jjj/ani
3 issues framed by the court
Whether the Commissioner report in the partition suit was tenable and effectuated a fair division of the property.
Whether the Division Bench should interfere with the fair division of property by the Commissioner.
Whether the appellant is entitled to further space from the property allotted to the plaintiffs.
SANTHAMMA
RAGHAVAN PILLAI SIVARAMA PILLAI
RAGHAVAN PILLAI SUKUMARA PILLAI
RAGHAVAN PILLAI SIVASANKARA PILLAI
JANAKI AMMA
KRISHNA PILLAI
N.K.BALAKRISHNAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
