Allowed

Rekha v. Sunil Kumar

Kerala HC17 Sept 2021RFA/252/2020

Case brief

AI extract

What is this about?

This appeal challenged a final partition decree that clubbed shares of three defendants into two portions and misclassified property types. The High Court allowed the appeal, setting aside the decree due to violation of the preliminary decree and requiring fresh consideration with equal division.

What did the court decide?

The final decree was set aside and the matter remanded to the trial court for re-adjudication with directions to divide the property into four equal shares within four months.

Rekha Vs Sunil Kumar — Partition | Kerala HC (2021)

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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 P.SOMARAJAN

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FRIDAY, THE 17^TH DAY OF SEPTEMBER 2021 / 26TH BHADRA, 1943

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RFA NO. 252 OF 2020(F)

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AGAINST THE JUDGMENT AND DECREE DATED 28/5/2020 IN FDIA 2634/2015 IN O.S.1156/2011 OF THE II ADDITIONAL SUB COURT,THRISSUR

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APPELLANTS-COUNTER PETITIONERS 2 TO4 - DEFENDANTS 2 TO 4:

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1 REKHA, AGED 41 YEARS, W/O. MANOJ, REKHA NIVAS (MANGALAMA GOLD COVERING) VALATHUNGAL P.O., ERAVIPUAM VILLAGE, KOLLAM.

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2 MINOR SAJANA, AGED 16 YEARS, D/O. REKHA, REKHA NIVAS (MANGALAMA GOLD COVERING) VALATHUNGAL P.O., ERAVIPUAM VILLAGE, KOLLAM.

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3 MINOR SANJAY, AGED 14 YEARS, S/O. REKHA, REKHA NIVAS (MANGALAMA GOLD COVERING) VALATHUNGAL P.O., ERAVIPUAM VILLAGE KOLLAM.

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APPELLANTS 2 AND 3 ARE HINDU MINORS REPRESENTED BY THEIR NATURAL GUARDIAN AND MOTHER THE 1^ST APPELLANT.

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BY ADV R.S.KALKURA

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RESPONDENTS/PETITIONERS - PLAINTIFFS:

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1 SUNIL KUMAR, AGED 54 YEARS, S/O.SUBHAKARAN , PAVITHRAM MULLUVILA, VADAKKEVILA VILLAGE, KOLLAM - 691 010.

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2 SUJITH KUMAR, AGED 52 YEARS, S/O.SUBHAKARAN , PAVITHRAM MULLUVILA, VADAKKEVILA VILLAGE, KOLLAM - 691 010.

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3 RAJAMONI, AGED 75 YEARS, W/O.SUBHAKARAN, UDAYAGIRI, THATTAMALA , VADAKKEVILA VILLAGE , KOLLAM - 691 010.

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BY ADVS. SRI.T.M.CHANDRAN SRI.S.SUJITH

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THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 17.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RFA NO. 252 OF 2020 2

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JUDGMENT

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The final decree is under challenge on the reason

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that it is not in accordance with the preliminary decree wherein the property has to be divided into four equal shares, but in the final decree it was divided into two parts by clubbing together the shares

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belonged to the three defendants by making the following observations:

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"13. The final decree petitioners are 2

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brothers and their mother. They asked for their

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properties to be clubbed together. Then, the property is to be divided only into 2 portions. The property of the respondents 2 to 4 needs to

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be allotted separately."

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It is neither permissible nor advisable to

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go beyond the preliminary decree at the final

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decree stage except to work out equity, if any.

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When there is direction to divide the property

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into four equal shares, it has to be divided by metes and bounds. It is not permissible to divide

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RFA NO. 252 OF 2020 3

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the property into two parts by clubbing together the three shares out of four. Virtually, it would defeat the division of property.

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It is so unfortunate that a grave mistake has

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been committed by the court below by converting the properties into three categories, commercial land, garden land and wet land, overlooking the fact that

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the entire property is a paddy field as per the

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records. The valuation made based on the said classification is totally baseless and unacceptable. If any property is found reclaimed, the same will not

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alter the nature of the property as paddy field, but

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can be divided equally so as to distribute reclaimed land among the sharers.

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From the impugned final decree, it is further

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evident that the plaintiff/appellant had suffered too

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much by the abovesaid grave mistake committed by the trial court. Out of 2 acres 93 cents, what is allotted

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to the share of plaintiff/appellant comes to only 26

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cents, which is less than 1/11^th of the total extent of the property. It would make the allocation so

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RFA NO. 252 OF 2020 4

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unconscionable and not in tune with the preliminary decree.

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It is also brought to the notice of this court

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that there is an overhead 11 KV line lying in an L shape. Hence, the property can be divided by equally allotting the area over which the overhead line is situated. The reclaimed land, if any available shall be separately located and divided into four equal shares, so as to allot the same with the remaining share over the land lying as paddy field, for which

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the parties shall appear before the trial court 06/10/2021.

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The appeal will stand allowed accordingly setting aside the final decree for fresh

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consideration by the trial court. There will be a direction to the court below to dispose of the

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matter within four months from the date of

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appearance of parties.

Sd/-

P.SOMARAJAN

JUDGE

msp

Rekha v. Sunil Kumar

Case brief

What is this about?

What did the court decide?

Rekha v. Sunil Kumar

Case brief

What is this about?

What did the court decide?

What the court decided

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