Partly allowed

Thresiamma Varghese v. Michael George

Kerala HC21 Nov 2016RFA/366/2014

Case brief

AI extract

What is this about?

In a partition suit, the High Court upheld the final decree regarding moiety shares for the plaint 'A' schedule property. The court modified the decree to retain an elongated pathway as common property and adjusted the owelty payment based on the Advocate Commissioner's valuation.

What did the court decide?

The pathway is kept as common property; owelty payment modified to Rs. 1,20,685/-; execution court will decide rent arrears.

Thresiamma Varghese Vs Michael George — Partition | Kerala HC (2016)

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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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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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MONDAY, THE 21ST DAY OF NOVEMBER 2016/30TH KARTHIKA, 1938

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RFA.No. 366 of 2014 ()

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AGAINST JUDGMENT DATED 28.2.2011 IN FDA.I.A.NO.8530/2008 ON THE FILE OF THE PRINCIPAL SUBORDINATE JUDGES COURT, ERNAKULAM.

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APPELLANT(S)/DEFANDANTS 1-4:

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THRESIAMMA VARGHESE, AGED 68 YEARS, W/O LATE GEORGE VARGHESE @ VAKKACHAN, RESIDING AT THUNDATHIL HOUSE, VEEKSHANAM ROAD, KOCHI 682 018

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GOGI VARGHESE, AGED 46 YEARS, S/O LATE GEORGE VARGHESE @ VAKKACHAN, RESIDING AT P.O. BOX 75, RUSAYAL, POSTAL CODE 124, SULTANATE OF OMAN THROUGH HIS MOTHER AND POWER OF ATTORNEY HOLDER THRESIAMMA VARGHESE, THE IST APPELLANT HEREIN

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MRS VIGI CHARLES, W/O CHARLES, RESIDING AT THYPARAMBIL HOUSE, NSH MOUNT P.O, KOTTAYAM 686 006

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SIGGY VARGHESE, W/O BERNAD, RESIDING AT THUNDATHIL HOUSE, VEEKSHNAM ROAD, KOCHI 682018

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BY ADVS.SRI.T.MADHU

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SRI.K.V.BINOD

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RESPONDENT(S)/PLAINTIFF AND DEFENDANTS 5 TO 7:

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MICHAEL GEORGE, AGED 63 YEARS S/O LATE GEROGE, THUNDATHIL HOUSE, NOW RESIDING AT “VRINDAVAN”, MARTHOMA CHURCH ROAD, N. PARUR - 683513

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ROSEY ANTONY @ BABY, AGED 66 YEARS W/O DR. N.A. ANTONY, RESIDING AT 1504, SHELLBARK CR., WASHINGTON, ILLINOIS 61571, U.S.A

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ANCY PETER, AGED 61 YEARS W/O PETER, KANNANKERIL HOUSE, KUMBALANGHI P.O, KOCHI 682007

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RFA.NO.366/2014

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: 2 :

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TESSY EDWIN, AGED 59 YEARS, W/O A.J. EDWIN, BARBARA PARKWAY, WASHINGTON, ILLINOIS 61571, U.S.A BY ADV. SRI.S.V.BALAKRISHNA IYER (SR) R-R1 BY ADV. SRI.P.B.KRISHNAN R-R1 BY ADV. SRI.P.M.NEELAKANDAN R-R1 BY ADV. SRI.P.B.SUBRAMANYAN R2,R3 & 4 BY ADV. SRI.ARUN PAUL JACOB

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THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18-11-2016 ALONG WITH CO. 134/2016, THE COURT ON 21.11.2016 DELIVERED THE FOLLOWING:

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V.CHITAMBARESH & ANIL K.NARENDRAN, JJ.

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--------------------R.F.A.No.366 of 2014 & Cross Objection No.134/2016

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--------------------Dated this the 21^st day of November, 2016

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J U D G M E N T

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Chitambaresh, J.

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The dispute survives only in regard to the plaint 'A' schedule property since the parties have already settled the issues in regard to the plaint 'B' and 'C' schedule property. The plaintiff is entitled to one-third share and defendants 1 to 4 are together entitled to two-third share over the plaint 'A' schedule property. The Regular First Appeal has been filed by defendants 1 to 4 to which the plaintiff has filed a memorandum of cross objection assailing the final decree for partition.

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The Advocate Commissioner deputed by the final decree court has filed a detailed report dated 22.6.2010 producing along with it a plan dividing the plaint 'A' schedule property. Plots A and B have been allotted to the plaintiff and Plot C has been allotted to defendants 1 to 4 whereas Plot D has been kept in common as a pathway. It appears that the pathway extends to further north and that the property on the

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RFA.366/2014 & Cross Objection No.134/2016

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northern side of Plots A and B belong to others as explained by both the counsel.

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Defendants 1 to 4 contend that even the pathway which extends to further north should have been divided by metes and bounds in accordance with the preliminary decree. No purpose would be served by adding the elongated pathway since the same is the only way of egress and ingress to plots A, B and C and hence kept in common. It is clarified that the whole of the pathway including that which extends to the north could be used as common property available for ingress and egress to all the allottees.

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The Advocate Commissioner has valued the residential building in plot C at 11,13,217/- and the commercial buildings in plots A and B at 7,37,636/totalling to 18,50,853/-. One-third of the total value due to the plaintiff comes to 6,16,951/- and two-thirds due to defendants 1 to 4 comes to .12,33,902/- . Therefore the plaintiff has to pay a sum of 1,20,685/- to defendants 1 to 4 by way of owelty

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RFA.366/2014 & Cross Objection No.134/2016

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towards of equalisation of shares and the decree of the court below is modified accordingly.

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The first defendant as the party receiver has been collecting rent from the tenants occupying the first floor of the residential building and all the floors of the commercial building. The plaintiff contends that he has received his share of the rent only upto 20.11.2010 and that his share till the date of final decree stands unpaid. The plaintiff also points out that he is entitled to the entirety of the rent from the commercial buildings till delivery (physical or symbolic) is effected.

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We make it clear that the adjustment as regards the arrears of rent and to the entitlement of rent shall be adverted to by the final decree court in the execution proceedings. The Execution Court shall pass appropriate orders in that regard and see to it that the legitimate share of rent is received by the allottees under the final decree. The impugned final decree for partition is modified as regards owelty subject to the clarification as regards the pathway and

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RFA.366/2014 & Cross Objection No.134/2016

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the entitlement of rent from the buildings.

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The Regular First Appeal and the Memorandum of

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Cross Objections are disposed of. No costs.

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Sd/V.CHITAMBARESH, Judge.

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Sd/ANIL K.NARENDRAN, Judge.

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nj/18.11.2016

Thresiamma Varghese v. Michael George

Case brief

What is this about?

What did the court decide?

Thresiamma Varghese v. Michael George

Case brief

What is this about?

What did the court decide?

What the court decided

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