ACHAMMA Vs. UMMAYA

JUDGEMENT

(1.) THESE two Second Appeals arise from the final decree passed in O. S. 742 of 1968 on the file of the Munsiff s Court of Tellicherry. Defendants 25 to 40 are the appellants in S. A. 216 of 1990 and respondent No. 49 in the application for the passing of the final decree claiming under or through defendant No. 27 in the suit is the appellant in S. A. 748 of 1992. By the preliminary decree passed two items of properties that were scheduled to the plaint were directed to be into 50 shares. The plaintiff was allotted 8 shares. One share to defendant No. 1, 24 shares to defendants 2 to 23 and 41 and 42 in a group. 14 shares to defendants 27 to 40 in a group were allotted. One share each was allotted to defendants 25 and 26. The one share due to defendant no. 24 was allotted to the legal heirs of defendant No. 24. During the course of the proceedings for the passing of the final decree there was a dispute about the allotment of the house in which the family was residing. Defendants 27 to 40 claimed allotment on the ground that defendant No. 27 was residing in that building. Of course it is pointed out on behalf of the contesting respondents that in the objection to the application for the final decree there was no such claim for allotment of the house by defendants 27 to 40. The commissioner proposed an allotment of the house shown as plot B in Ms plan to the share of defendants 2 to 23 and 41 and 42 on the basis that they were the major sharers. Defendants 2 to 23, 41 and 42 appeared to have been unwilling to have the building allotted to their share and they wanted the building be sold. An application I. A. 1296 of 1976 was filed by defendants 2 to 23 and 41 and 42 seeking a review of that order. Ultimately what we find is that during the course of the final decree the building was allotted to the share of defendants 2 to 23 and 41 and 42. The appeal filed by defendants 27 to 40 challenging the said allotment of the house to defendants 2 to 23 and 41 and 42 was dismissed by the lower appellate court. It is feeling aggrieved by that dismissal that defendants 27 to 40 have tiled this Second Appeal. It is contended on their behalf that the building ought to have been allotted to their share especially in the light of the view adopted by defendants 2 to 23 and 41 and 42 that they did not want an allotment of the building to them. It appears that at a later stage defendants 25 and 26 also supported the claim of defendants 27 to 40 and sought a joint allotment of the house to them as well along with defendants 27 to 40.

(2.) LEARNED counsel for the appellants in S. A. 216 of 1990 pointed out that in support of her claim for allotment defendant No. 27 had got herself examined as RW1 and it was admitted on all hands that she was residing in the building along with her children. The courts below did not accept that part of the case of defendant No. 27 since in her cross-examination she stated that her sons were residing in the houses of her respective daughters-in-law and her daughters were also residing with their husbands. The courts below inferred from those answers that defendant No. 27 alone was residing in the building belonging to the family and not all her children as claimed by her. Taking note of her status as a senior female member of the family, the courts below even while allotting the building to the major sharers, defendants 2 to 23 and 41 and 42 conferred a right on defendant No. 27 to reside in the building for her life. Defendants 2 to 23 and 41 and 42 did not object to that right given to defendant No. 27 and even before me, their counsel submitted that they had no objection to defendant No. 27 residing in the house during her lifetime.

(3.) IN his appeal, respondent No. 49 in the application for the passing of the final decree has put forward a claim for value of improvements. His claim is based on lease said to have been granted in his favour by defendant No. 27 in the suit. The appellant is the son-in-law of defendant No. 27. The lease related to plaint schedule item No. 3. The lease is said to have been granted under Ext. B22 dated 15. 6. 1958. At the stage of the preliminary decree in the suit defendant No. 27 raised a contention that the appellant was a necessary party to the suit since he was a person who was holding plaint schedule item No. 3 on the terms of a registered lease deed as granted by her. The case of defendant No. 27 was that she was the exclusive owner of plaint schedule item No. 3 since it was a Sreedhanam grant to her and the said item was not avai liable for partition. The court held that defendant No. 27 was only a limited interest holder and hence was not entitled to claim that the property was not available for partition. The court held that the moment the properties are ordered to be partitioned, the limited interest of defendant no. 27 will come to an end. The court further held that the present appellant being only a person who claims to be a lessee under a limited interest holder was not entitled to any right to hold onto the property since the lease granted by defendant No. 27 was not binding on the other members of the family. The court therefore, held that plaint schedule item No. 3 had to be partitioned as if the property were in the direct possession of the family. But a direction was made that since defendant No. 27 had leased out the property to a stranger to the suit, at the time of division by metes and bounds, that item will be allotted to the share of defendant No. 27 as far as possible.