Partly allowed

Muhammed v. Rosna

Kerala HC17 Feb 2023RP/284/2020

Case brief

AI extract

What is this about?

The High Court reviewed a judgment directing an allotment of a building to appellants in a partition, where measurements showed the building occupied the entire land. The Court deleted the allotment direction, clarifying that the Family Court should consider owelty or the Partition Act provisions.

What did the court decide?

Deleted the direction to allot the building to the appellants in the judgment dated 11.04.2019; directed the Family Court to consider owelty or Partition Act provisions.

Muhammed Vs Rosna — Partition | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN &

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 17^TH DAY OF FEBRUARY 2023 / 28TH MAGHA, 1944

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R.P. NO. 284 OF 2020

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AGAINST THE JUDGMENT DATED 11.04.2019 IN MAT.APPEAL NO.465 OF 2013 OF HIGH COURT OF KERALA

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REVIEW PETITIONER:

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MUHAMMED

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AGED 67 YEARS, S/O. YOUSAF, ARANGATHUPARAMBIL HOUSE, NEAR THIRUVANIKKAVY TEMPLE, THEKKUMKARA VILLAGE, THALAPILLY TALUK, THRISSUR DISTRICT.

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BY ADVS. NAGARAJ NARAYANAN SRI.SAIJO HASSAN SRI.BENOJ C AUGUSTIN SRI.PRATHAP PILLAI SRI.SEBIN THOMAS SRI.VISHNU BHUVANENDRAN

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RESPONDENTS:

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1 ROSNA

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AGED 41 YEARS, D/O. LATE NABEESA @ NABEESAKUTTY, ARANGATHAPARAMBIL HOUSE, OPPOSITE TO MUJAHIT MOSQUE, OTTUPARA, KUMARANELLOOR P.O, TALAPPILLY TALUK, THRISSUR DISTRICT - 680 590.

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2 SIBU MON, AGED 39 YEARS, S/O. LATE NABEESA @ NABEESAKUTTY, ARANGATHAPARAMBIL HOUSE, OPPOSITE TO MUJAHIT MOSQUE, OTTUPARA, KUMARANELLOOR P.O, TALAPPILLY TALUK, THRISSUR DISTRICT - 680 590.

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R.P.No.284 of 2020 in Mat.Appeal No.465 of 2013

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3 SHUKOOR,

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AGED 47 YEARS, PRESENT HUSBAND OF NABEESA @ NABEESAKUTTY, ARANGATHAPARAMBIL HOUSE, OPPOSITE TO MUJAHIT MOSQUE, OTTUPARA, KUMARANELLOOR P.O, TALAPPILLY TALUK, THRISSUR DISTRICT - 680 590.

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4 HASSAN,

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S/O. LATE HAMSA, ARANGATHAPARAMBIL HOUSE,OPPOSITE TO MUJAHIT MOSQUE, OTTUPARA, KUMARANELLOOR P.O, TALAPPILLY TALUK, THRISSUR DISTRICT - 680 590.

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5 NOORDHEEN, (DELETED) S/O. LATE HAMSA, ARANGATHAPARAMBIL HOUSE, OPPOSITE TO MUJAHIT MOSQUE, OTTUPARA, KUMARANELLOOR P.O, TALAPPILLY TALUK, THRISSUR DISTRICT - 680 590.*

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6 PATHUMABI, (DELETED) D/O. LATE HAMSA,. ARANGATHAPARAMBIL HOUSE, OPPOSITE TO MUJAHIT MOSQUE, OTTUPARA, KUMARANELLOOR P.O, TALAPPILLY TALUK, THRISSUR DISTRICT - 680 590.*

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*RESPONDENTS 5 AND 6 DELETED FROM PARTY ARRAY AS PER ORDER DATED 23.02.2021 IN I.A.NO.1 OF 2021 IN RP 284 OF 2020 IN MAT.APPEAL 465 OF 2013.

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THIS REVIEW PETITION HAVING COME UP FOR FINAL HEARING ON 17.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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R.P.No.284 of 2020 in Mat.Appeal No.465 of 2013

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O R D E R

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P.G. Ajithkumar, J.

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Mat.Appeal No.465 of 2013 was dismissed by the judgment dated 11.04.2019. It was however directed that while effecting metes and bounds partition efforts shall be taken to allot the building in the petition schedule property to the share of the appellant

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The 1^st respondent filed this Review Petition by contending that direction to allow the building in the share of the appellants is an error apparent on the face of the record. It is contended that this Court on the premise that the petition scheduled property is 57½ cents and the building thereon, could be conveniently allotted to the share of the appellants. The petitioner would contend that the extent of the petition schedule property which is to be partitioned has an area of only 6 cents and as per the actual measurements, it is still less. The petitioner by producing a copy of a report of the commissioner appointed in the final decree proceedings in O.P.No.1003 of 2002 raised a contention that the building

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R.P.No.284 of 2020 in Mat.Appeal No.465 of 2013

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occupies almost the entire area of the land and therefore the direction in the judgment of this Court dated 11.04.2019 is not practicable. Accordingly, the petitioner seeks to review the judgment dated 11.04.2019.

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None of the respondents appeared and filed any

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objection.

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Heard the learned counsel appearing for the

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petitioner.

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This Court while considering Mat.Appeal No.465 of 2013 proceeded on the impression that the property sought to be partitioned is 57½ cents of land along with the building thereon. The preliminary decree passed on 20.05.2013 by the Family Court declared that the review petitioner has half right in the property. The other half is entitled by the appellants, being the legal representatives of the deceased 1^st respondent in O.P.No.1003 of 2002. In paragraph No.16 of the judgment dated 11.04.2019 this Court found that the building was not partible. Paragraph No.16 reads as follows:-

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“16. The 1^st respondent was a Teacher for sometime

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R.P.No.284 of 2020 in Mat.Appeal No.465 of 2013

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and after she discontinued her job, she used to earn from business conducted in a shop room. This shows that she had sufficient income also to complete the construction of the building. The court below relied on Exts.B11 to B13 and B20 in this respect and found that the entire structure was put up with her sole funds. Since the building was put up by the 1^st respondent, it is no longer a partible asset between the parties. We hold that the building in the petition schedule property is not partible.”

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The said finding is based on evidence and there is no reason to hold that there is error in the said finding. But the further finding in the judgment dated 11.04.2019 that while effecting metes and bounds partition, efforts shall be taken to allot the building to the share of the appellants may not be practicable or equitable.

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If the extent of the property is 57½ cents, the building certainly could be included in the half share and allotted to the appellants. But when the building occupies almost whole extent of the land, which actually has an area of

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less than 6 cents, allotting half share, including the whole of the building in such share is impracticable. Of course, in the

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R.P.No.284 of 2020 in Mat.Appeal No.465 of 2013

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light of the finding that the building is not partible, the appellants are entitled to get its price proportionate to the portion that would come within the half share of the review petitioner. In such circumstances, we are of the view that the judgment dated 11.04.2019 requires review. Hence this petition is allowed and the judgment dated 11.04.2019 is reviewed to the extent that the direction in the said judgment that effort shall be taken to allot the building to the share of the appellants is deleted. We make it clear that while effecting metes and bounds partition, the Family Court shall consider whether provisions of the Partition Act, 1893 are to be invoked or the reservation of the building to the share of the appellants can be worked out in terms of owelty.

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The Review Petition is allowed to the above extent.

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Sd/-

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ANIL K. NARENDRAN, JUDGE

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Sd/-

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P.G. AJITHKUMAR, JUDGE

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dkr

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R.P.No.284 of 2020 in Mat.Appeal No.465 of 2013

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APPENDIX OF RP 284/2020

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PETITIONER ANNEXURES

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ANNEXURE A1 TRUE COPY OF THE PLAN AND REPORT SUBMITTED BY THE TALUK SURVEYOR DATED 06.11.2019 BEFORE THE FAMILY COURT THRISSUR

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ANNEXURE A2 TRUE COPY OF THE COMMISSION REPORT DATED20.11.2019 SUBMITTED BY THE ADVOCATE COMMISSIONER BEFORE THE FAMILY COURT THRISSUR IN F.D.I.A 3134/2013 IN O.P 1003/2002

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ANNEXURE A3 TRUE COPY OF THE ADDITIONAL COMMISSION REPORT DATED 17.11.2019 (17.12.2019)SUBMITTED BY THE ADVOCATE COMMISSIONER BEFORE THE FAMILY COURT THRISSUR IN F.D.I.A 3134/2013 IN O.P 1003/2002

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ANNEXURE A4 TRUE COPY OF THE OBJECTION FILED BY THE 1ST RESPONDENT HEREIN DATED 18.12.2019 BEFORE THE FAMILY COURT THRISSUR IN F.D.I.A 3134/2013 IN O.P 1003/2002

Muhammed v. Rosna

Case brief

What is this about?

What did the court decide?

Muhammed v. Rosna

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

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