The court upheld equitable distribution in property disputes, emphasizing the importance of safeguarding residential rights, especially for vulnerable parties.

JUDGMENT

This appeal is against a concurrent finding in a final decree proceedings. O.S.No.24/2016 is a suit for partition on the files of Subordinate Court, Kannur. After a full fledged trial, the suit was decreed and a preliminary was passed, wherein the 1^st respondent was allotted 2/3 share over the property and the appellant herein with 1/3 share. The parties went for a final decree proceedings.

2. During the final decree proceedings, there arose a dispute regarding the manner in which the property is to be partitioned. The Advocate Commissioner appointed in the final decree proceedings submitted a report stating that, the decree schedule property cannot be divided by metes and bounds. In such circumstances, the court below proceeded to fix the value of the property in order to work out the owelty. Accordingly, initiatlly a sum of Rs.8,75,785/- was fixed by the Advocate Commissioner and a report was filed. An objection was raised by the appellant herein stating that the valuation is improper and that the value of the property would come to more than Rs.18,00,000/-. Accordingly, I.A.No.3/2023 was filed, in which an undertaking to deposit Rs.18,00,000/- was made by the appellant, after deducting the share of appellant herein. This application was ordered by the trial court on 19.07.2023 by reopening the enquiry in the final decree proceedings and remitting the report of the Advocate Commissioner and ordering a fresh enquiry. Thereafter, the Advocate Commissioner has filed a report. Based on the said proceedings, the decree holder came up and volunteered to deposit Rs.18,00,000/- as suggested by the appellant. Accordingly, the allotment was made in terms of the preliminary decree. While making the allotment and passing of a final decree, the trial court made necessary safeguards to protect the religious rights of the parties in the decree schedule property. Accordingly, a final decree was drawn by the Subordinate Court, Kannur on 26.07.2024.

3. Aggrieved, the appellant/2^nd defendant preferred A.S.No.64/2024 before the Additional District Court-III, Thalassery. One of the prime objection of the appellant was that, the trial court did not order I.A.No.3/2023 and did not go for a fresh auction of the property. The first appellate court, after considering the contentions of the appellant, proceeded to hold that exclusive allotment in favour of the appellant would have disregarded the plaintiff’s legitimate residential needs, actual possession and her majority share in the property. Resultantly, the appeal was dismissed and hence, the present appeal.

4. This Court, while entertaining this appeal passed the following order on 16.01.2026:

“C.M.Application No.1 of 2026 This is an application to condone the delay of 31 days in filing the appeal. Registry has reported that the service is complete. Perused the affidavit accompanying the application. The reasons for the delay are properly explained. In such circumstances, the delay is condoned.

Smt.M.R.Mini entered appearance for the first respondent. Since the dispute is between the appellant and first respondent notice to the second respondent is dispensed with for the time being. The consent, the matter is taken on board for admission.

R.S.A The learned counsel for the appellant submits that the matter is listed for effecting delivery today. He would further point out that since the Advocate Commissioner who was deputed in final decree proceedings has reported that the decree schedule property cannot be partitioned, the defendant had filed an application to took up the property for auction which was not considered by the trial court when the final decree was passed.

2. Smt.M.R.Mini, learned counsel appearing for the first respondent,