P. SATHIRATNAM Vs. VENUGOPALAN

JUDGEMENT

(1.) THE appellant is the plaintiff in O.S. No. 131 of 1999 on the file of the Court of the Subordinate Judge of Ottappalam. The respondents are the defendants therein. In this appeal, the appellant challenges the final decree for partition passed by the court below on 13.8.2010 on Final Decree Application No. 3066 of 2008 in O.S. No. 131 of 1999. The brief facts of the case are as follows:

(2.) THE appellant/plaintiff instituted O.S. No. 131 of 1999 in the Court of the Subordinate Judge of Ottappalam for partition of the plaint B schedule property into six equal shares and allotment of one such share to her. The appellant had averred that the plaint B schedule property belonged to late Kunjukuttan Nair, father of the plaintiff and defendants 1 to 4 and husband of the fifth defendant, that he passed away in the year 1976 and on his death, the plaint B schedule property devolved on the plaintiff and the defendants in equal shares. Defendants 1, 2, 4 and 5 filed a joint written statement wherein after conceding the claim of the plaintiff for partition, they contended that the first defendant had, with the consent of all the sharers, constructed a house in the plaint B schedule property spending his own funds for the residence of the fifth defendant, that defendants 4 and 5 are residing therein, that they have no other house to reside and therefore, defendants 4 and 5 are entitled in equity to have the house situate in the plaint B schedule property allotted to them without valuing it. The trial court considered the rival contentions and passed a preliminary decree for partition by judgment delivered on 13.9.2004. The trial court overruled the contention of the first defendant that he had constructed the house in the plaint B schedule property by spending his own funds. The trial court however held that as the plaintiff who is residing at New Delhi has not controverted the averment that defendants 4 and 5 have no separate house and the fifth defendant is aged more than 70 years, the house in the plaint B schedule property can be set apart to the share of defendants 4 and 5 after valuation. Paragraphs 10 and 11 of the judgment delivered by the trial court on 13.9.2004 in O.S. No. 131 of 1999 are extracted below in full:

(3.) THE records also disclose that the plaintiff had on 26.6.2007 filed I.A. No. 1265 of 2007 for the passing of a final decree for partition. On that application notice was ordered on 2.8.2007 to the respondents/defendants. Notice on I.A. No. 1265 of 2007 was served on the first respondent who received the notice on his own behalf and on behalf of respondents 3 and 4/defendants 3 and 4. Notice was served on respondents 2 and 5/defendants 2 and 5, personally. In the cause title of I.A. No. 1265 of 2007, the address of the applicant therein (the plaintiff) was set out as shown below: