Allowed

Subramaniya Ayyar v. M.S.Venkitasubramanian

Kerala HC14 Oct 2019RSA/508/2019

Case brief

AI extract

What is this about?

In a second appeal regarding a partition suit, the High Court allowed the appeal and remitted the final decree application. The court directed the trial court to allot an unused pathway portion to one set of allottees, awarding owelty, and shared the pond reclamation costs equally among all three sets of allottees.

What did the court decide?

Final decree application remitted for allotting the unused pathway portion to respondents 1-6, payment of owelty, and sharing reclamation costs equally by all three sets of allottees.

Subramaniya Ayyar Vs M.S.Venkitasubramanian — Partition | Kerala HC (2019)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE A.M.BABU

¶4

MONDAY, THE 14TH DAY OF OCTOBER 2019 / 22ND ASWINA, 1941

¶5

RSA.No.508 OF 2019

¶6

AGAINST THE ORDER/JUDGMENT IN AS 70/2018 DATED 20-03-2019 OF THE DISTRICT COURT ERNAKULAM

¶7

AGAINST THE ORDER/JUDGMENT IN OS 621/2005 OF II ADDITIONAL SUB COURT,ERNAKULAM 19.9.2016

¶8

APPELLANT/S:

¶9

1 SUBRAMANIYA AYYAR (DIED) S/O.LATE VISWA AYYAR, THEKKEMADOM, PALLIPARAMBU KAVU, NADAMA VILLAGE, NEAR RAILWAY STATION ROAD, TRIPUNITHURA-682301, REPRESENTED BY GIRIJA, D/O.SUBRAMANIYA AYYAR, THEKKEMADOM,NADAMA VILLAGE, NEAR RAILWAY STATION ROAD, TRIPUNITHURA-682301.

¶10

2 S.ANANTHAVISWANATHAN,S/O.LATE SUBRAMANIYA AYYAR,AGED 57 YEARS,THEKKEMADOM, PALLIPARAMBU KAVU, NADAMA VILLAGE, NEAR RAILWAY STATION ROAD, TRIPUNITHURA-682 301.

¶11

3 S.RAMAKRISHNAN, S/O.LATE SUBRAMANIYA AYYAR, AGED 55 YEARS,THEKKEMADOM, PALLIPARAMBU KAVU,NADAMA VILLAGE,

¶12

NEAR RAILWAY STATION ROAD,TRIPUNITHURA-682 301.

¶13

4 S.NARAYANASWAMI,S/O.LATE SUBRAMANIYA AYYAR,AGED 52 YEARS,THEKKEMADOM, PALLIPARAMBU KAVU, NADAMA VILLAGE, NEAR RAILWAY STATION ROAD, TRIPUNITHURA-682 301.

¶14

5 S.GIRIJA,D/O.LATE SUBRAMANIYA AYYAR, AGED 49 YEARS,THEKKEMADOM, PALLIPARAMBU KAVU, NADAMA VILLAGE, NEAR RAILWAY STATION ROAD, TRIPUNITHURA-682 301.

¶15

THE LEGAL REPRESENTATIVES OF DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 5 AS PER ORDER DATED 03.10.2019 IN I.A.3/2019.

¶16

BY ADV. SRI.B.KRISHNA MANI

¶17

RESPONDENT/S:

¶18

1 M.S.VENKITASUBRAMANIAN S/O.SARADA AMMAL, MALIYAKKAL MADOM, THRIKKARIYOOR.P.O., KOTHAMANGALAM, PIN-686692, ERNAKULAM DISTRICT.

¶19

2 M.S.ANANDAVISWANATHAN, S/O.SARADA AMMAL, MALIYAKKAL MADOM, THRIKKARIYOOR.P.O., KOTHAMANGALAM, PIN-686692, ERNAKULAM DISTRICT.

¶20

3 M.S.BHAGEERATHY,

¶21

¶22

RSA 508 OF 2019

¶23

D/O.SARADA AMMAL, IX/149, KAVUMPALLI MADOM, PARAPPALLY ROAD, THIRUVANKULAM.P.O., PIN-682305, ERNAKULAM DISTRICT

¶24

4 PARVATHY AMMAL D/O.SARADA AMMAL, THARAYIL MADOM, EAST NADA, MAVELIKKARA.P.O., ALAPPUZHA-690101.

¶25

5 M.S.GURUVAYOORAPPAN, S/O.SARADA AMMAL, MALIYAKKAL TRIKARUYOOR.P.O., KOTHAMANGALAM, ERNAKULAM DISTRICT, PIN-686692

¶26

6 M.S.GEETHA, VADAKEMADOM, NEAR GOVT. HOSPITAL ROAD, CHALAKUDI, THRISSUR DISTRICT, PIN-680307

¶27

7 N.SUBRAMANIAN, S/O.LATE MEENAKSHI AMMAL, ASHIRWAD, KANNANKULANGARA, TRIPUNITHURA, ERNAKULAM-682301

¶28

8 N.ANANDA VISWANATHAN, S/O.LATE MEENAKSHI AMMAL, KARTHIKA, KANNANKULANGARA, TRIPUNITHURA, ERNAKULAM-682301

¶29

9 N.LAKSHMY, W/O.R.GOPALAKRISHNAN (RETIRED MAJOR) FLAT NO.18, 2ND FLOOR, PADMA ENCLAVE, TRICHI ROAD, DINDIGAL-624005

¶30

10 N.PARVATHY, W/O.K.P.KRISHNAN, KOOLIKKARA MADOM, SREEMOOLANGARA.P.O., ERNAKULAM DISTRICT-683580

¶31

R1 TO R6 BY ADV.MOHAN D.IDICULA ADV.MARTIN.D.ALUMKARA R3 BY ADV.ELIZABETH MATHAI IDICULA

¶32

R7-10 BY ADV. SMT.R.RAJASREE (CHUTTIMATTATHIL)

¶33

THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

RSA 508 OF 2019

JUDGMENT

Heard Sri.B.Krishna Mani, the learned counsel for the supplemental appellants who are the legal representatives of the deceased first defendant. The appeal is admitted formulating the following substantial questions of law:

¶38

(i) Was it proper to leave a strip of land as a portion of a pathway which need not be used by anybody?

¶39

(ii) Was it proper to relieve the persons to whom were allotted a pond from sharing the expenses for its reclamation?

¶40

All the respondents have appeared. Sri.Martin D.Alumkara appears for respondents 1 to 6 and Smt.R.Rajasree appears for respondents 7 to 10. The learned counsel have taken notice of the substantial questions of law formulated. Heard all the learned counsel.

¶41

The suit was for partition of plaint A and B schedule properties. Preliminary decree was passed. Thereafter a final decree was passed in respect of the A schedule property and passing of final decree in respect of the B schedule property was deferred. The final decree was taken in appeal and the appeal was dismissed.

¶42

¶43

RSA 508 OF 2019

¶44

Ext C1 is the report of the commissioner and Exts C1(a) and C1(b) are the plans attached to the report. I am shown a copy of Ext C1(a) plan by the learned counsel appearing for respondents 1 to 6. The A schedule property was divided into three plots. Those three allotments are shown in Ext C1(a) in different colours. The green shaded portion which is on the extreme north was allotted to respondents 1 to 6 in the second appeal. The violet shaded portion which is on the southern most was allotted to the predecessor-in-interest of the additional appellants. In between the green shaded portion and the violet shaded portion is the yellow shaded portion which was allotted to respondents 7 to 10 in the second appeal. A pathway was provided for access to the yellow shaded portion and the green shaded portion. The pathway was demarcated from the southern road up to the northern end of the green shaded portion. A pathway up to the northern boundary of the green shaded plot is absolutely unnecessary. Nobody should use the said portion of the pathway. Ultimately it will merge in the green shaded portion. A pathway is to be provided only up to the entry point of the green shaded portion. What can be done is to allot the said portion of the pathway to the allottees who are to receive the green shaded portion. The value of the land so allotted to respondents 1 to 6 shall be fixed. The other allottees shall be

¶45

¶46

RSA 508 OF 2019

¶47

compensated by payment of owelty. This is to be done and therefore the appeal is to be allowed and the final decree application is to be remitted to the trial court to do it.

¶48

The yellow shaded portion in Ext C1(a)plan allotted to respondents 7 to 10 contains a pond. The allottees of that plot can enjoy that plot only if the pond is reclaimed. Perhaps that in mind the trial court assessed the cost of reclamation. The cost was directed to be shared by the allottees of the green shaded portion and the violet shaded portion. The allottees of the yellow shaded portion were totally exonerated. This was indeed wrong. I need not go any further deep into the matter since the learned counsel appearing for respondents 7 to 10 submits that her clients are prepared to share the cost of reclamation along with the other allottees. The cost of reclamation shall therefore be shared by all the three sets of allottees in equal proportion.

¶49

The second appeal is allowed and the final decree application is remanded to the trial court. It is made clear that the remand is not an open remand. It is a restricted remand for allotting the portion of the pathway referred to above to the share of respondents 1 to 6 and payment of owelty as fixed by the trial court and also for sharing the cost of reclamation of the pond by all the three sets of allottees. No other question shall be open for consideration after the remand. The commissioner

¶50

¶51

RSA 508 OF 2019

¶52

shall be directed to prepare a fresh plan to allot the plots as indicated in this judgment. The final decree application shall be disposed of as early as possible; at any rate, within a period of four months from the date of appearance of the parties before the trial court. They shall appear before the trial court on 1.11.2019.

Sd/-

A.M.BABU

SKS/15.10.2019

JUDGE

Subramaniya Ayyar v. M.S.Venkitasubramanian

Case brief

What is this about?

What did the court decide?

Subramaniya Ayyar v. M.S.Venkitasubramanian

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Remani.P.a Vs Alwaye Chitties and Finances Pvt.Ltd

Ramakrishnan Vs Alli

Leelavathyamma Vs Vimalakumaryamma

Chemmangatt Radha Vs Chemmangatt Prabhakaran

Sundaran Vs Haridasan

Payyanattukodassery Mohammed Vs Kottuvala Subaida