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HIGH COURT OF KERALA
N.ANIL KUMAR, J
C.V.VIJAYALAKSHMI – Appellant
Versus
AMMINI AMMA – Respondent
RSA/1099/2019
Transfer - Partition - Transfer of Property Act, 1882 Section 44, Partition Act, 1893 Section 4 - The Court interpreted Sections 4 and 44 concerning the rights of co-owners versus outsiders, influencing the decision that the appellants retain the right to seek partition while affirming the lower courts' decrees.
Fact of the Case:
The case involves a partition suit where disputed property was allocated to an outsider under a gift deed. The appellants contested this allocation, citing rights under relevant property laws, leading to appeals against the lower courts' decrees.
Finding of the Court:
The court concluded that the lower courts appropriately applied property laws, affirming the outsider's lack of joint possession rights until a final decree for partition was established, allowing the appellants to reassert their claims.
Issues: The core issue was whether the allotment of a dwelling house to an outsider violated property law principles as articulated in Sections 44 and 4 of their respective Acts during an ongoing partition suit.
Ratio Decidendi: The court found that Section 44 of the T.P. Act limits an outsider's rights in a family dwelling, while Section 4 of the Partition Act allows family members to assert claims for preemption during partitions.
Final Decision: The appeal is dismissed, confirming the judgments of the lower courts without prejudice to the appellants' rights under the Partition Act.
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE N.ANIL KUMAR MONDAY, THE 27TH DAY OF SEPTEMBER 2021 / 5TH ASWINA, 1943 RSA NO. 1099 OF 2019 AGAINST THE DECREE AND JUDGMENT DATED 26.2.2019 IN AS 209/2015 OF III ADDITIONAL DISTRICT COURT, PALAKKAD, AN APPEAL FROM THE FINAL DECREE CUM ORDER DATED 20-08-2015 IN FDIA NO.1592 OF 2011 IN OS 86/1983 OF MUNSIFF COURT, ALATHUR, PALAKKAD APPELLANTS/APPELLANTS/RESPONDENTS/
PLAINTIFF AND DEFENDANTS 2 AND 3:
1 C.V.VIJAYALAKSHMI AGED 68 YEARS D/O.MEENAKSHI AMMA, CHUNGATHU HOUSE, PUTHIYANGAM AMSOM DESOM, ALATHUR TALUK, P.O.PUTHIYANGAM-678542, PALAKKAD DISTRICT.
2 V.S.UMA,AGED 45 YEARS D/O.C.V.VIJAYALAKSHMI, CHUNGATHU VEEDU, PUTHIYANGAM AMSOM DESOM, ALATHUR TALUK, P.O.PUTHIYANGAM-678542, PALAKKAD DISTRICT.
3 V.S.SUMA, AGED 43 YEARS D/O.C.V.VIJAYALAKSHMI, CHUNGATHU VEEDU, PUTHIYANGAM AMSOM DESOM, ALATHUR TALUK, P.O.PUTHIYANGAM-678542, PALAKKAD DISTRICT.
BY ADVS. SRI.P.R.VENKATESH SRI.G.KEERTHIVAS :-2-:
RESPONDENT/RESPONDENT/PETITIONER/3RD PARTY TO THE SUIT:
AMMINI AMMA D/O.NANIKUTTY AMMA, AGED ABOUT 79 YEARS, MULLASSERY VEEDU,VALLAPADI DESOM, KODAKARA VILLAGE, MUKUNDAPURAM TALUK, P.O.KODAKARA-680684,THRISSUR DISTRICT.
BY ADV SRI.K.G.BALASUBRAMANIAN THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14.09.2021, THE COURT ON 27.09.2021 DELIVERED THE FOLLOWING:
:-3-:
J U D G M E N T 'C.R.'
This second appeal is filed against the judgment and decree dated 26.2.2019 in A.S.No.209/2015 on the file of the District Court, Palakkad (hereinafter referred to as 'the first appellate court'), arising from the final judgment and decree dated 20.8.2015 in FDIA. No.1592/2011 in O.S.No.86/1983 on the file of the Munsiff Court, Alathur (hereinafter referred to as 'the trial court'). For the sake of convenience, the parties shall be hereinafter referred to as referred in the original suit unless otherwise stated.
2. A substantial question of law arises for consideration before this Court in this second appeal. The substantial question of law is whether the allotment of the dwelling-house in favour of respondent, a stranger to the family, is illegal and in violation of the principles behind Section 44 of the Transfer of Property Act,1882 (hereinafter referred to for short as 'the T.P.Act').
3. The matter arises out of a suit for partition. The first appellant is the plaintiff. Appellants 2 and 3 are defendants 2 and 3 respectively. As per the preliminary decree passed by the trial court and as modified in appeal, the suit property has to be divided into four equal shares and the plaintiff and the defendants are entitled to :-4-:
one-fourth share each. The first defendant-Meenakshi Amma died after the preliminary decree was passed. After the death of Meenakshi Amma, the respondent/petitioner filed the final decree application viz., FDIA 1592/2011 in O.S.No.86/1983 claiming rights on the basis of a gift deed alleged to have been executed by deceased Meenakshi Amma in her favour.
4. The suit property is 12 cents of land with a dwelling-
house thereon wherein the appellants reside. The Commissioner deputed to effect partition in the final decree proceedings, divided the property into four plots, namely A,B,C and D and the plot A, which includes the dwelling-house, was allotted to the respondent herein. Accordingly, the final decree court accepted the Advocate Commissioner's plan and report, and passed the final judgment and decree.
5. Feeling aggrieved, the appellants/plaintiff and defendants 2 and 3 preferred an appeal before the first appellate court. When the appeal was pending, an application was filed by the appellants as I.A.No. 127/2017 to pass a final decree allotting the dwelling-house to the share of the appellants. The first appellate court was of the view that such an application could not be :-5-:
entertained separately by the first appellate court as the court was considering an appeal challenging the preliminary judgment and decree of the trial court. Hence, the I.A. was dismissed. Co
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