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2017 DIGILAW 1283 (KER)

Ranjini Kakkadath v. Kakkadath Ramani

2017-10-11

DEVAN RAMACHANDRAN, P.N.RAVINDRAN

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JUDGMENT : Devan Ramachandran, J. 1. In this appeal, which to us, appears to be a rather ambitious in its reach, the appellant contends against the most fundamental notions in law relating to partition. He seeks partition of un-estimated and concededly unavailable sums of money, which he claims has been earned by the defendants from the properties held in common by them. However, he vociferously denies that these amounts represent profits from the jointly owned estate and predicates that they are in the nature of an entrustment of money on her behalf, at the hands of the defendants, qualifying it to be in the nature of a trust property, thus making it eligible for partition. Incredulous as it may seem, we, nevertheless, have no other way than to assess these submissions in law, since the hypostatis of this appeal rests on this sole assertion. 2. This appeal is at the instance of the plaintiff who filed a suit for partition of certain properties scheduled to the plaint, claimed to be that belonging to her deceased father. The plaintiff Smt. Ranjini Kakkadath is the daughter of Sri. Kakkadath Ramachandran who died on 06.04.2005. As per the plaint averments three schedules of properties were owned by Sri. Kakkadath Ramachandran and on his death they devolved upon the plaintiff, her mother and her brother who are arrayed as defendants 1 and 2 in the suit. 3. The said suit, namely O.S.No.91 of 2014, was laid by the appellant herein as the plaintiff on the files of the Sub Court, Kozhikode and the court below after trial decreed it holding that the plaintiff is entitled to 1/3 share in plaint A and B schedule properties and as also to future share of profits from the 2nd defendant, the quantum of which was left to be decided in the final decree proceedings. The appellant has filed this appeal assailing the judgment and decree of the court below asserting that it has erred in not ordering partition of the Plaint C schedule property and also for the reason that she has not been given mean profits or share of profits from the estate for the period prior to the filing of the suit. The appellant has filed this appeal assailing the judgment and decree of the court below asserting that it has erred in not ordering partition of the Plaint C schedule property and also for the reason that she has not been given mean profits or share of profits from the estate for the period prior to the filing of the suit. She alleges that the court below has only granted a future share of profits to her from the 2nd defendant while denying her right to receive share of past profit from the estate in terms of law. 4. We have heard the learned counsel for the petitioner Sri. S. Nirmal and the learned counsel for the 2nd respondent Sri. K.M. Firoz. 5. The dominant ground for challenge in this appeal, is impelled before us by the learned counsel for the appellant, is that the court below has erred in not allowing his client’s claim for partition over plaint C schedule property. Answer to this contention and as to why the court below declined it can be obtained only if one examines the nature of the description ascribed to the plaint C schedule property by the plaintiff herself. As is clear from the plaint and the decree the appellant has described plaint C to be the licence fee and income that was earned by the defendants from the business and industry carried on in plaint A and B schedule immovable properties. We notice that even though schedule C to the plaint has been valued at Rs. 74,25,000/-, the appellant does not have a case that this amount is credited in a particular account or that it is available in the hands of either of the defendants. Her specific assertion, even going by the plaint averments, is that this is the estimate of the amounts that she deems has been earned by the defendants as income and profits obtained to them by running the industry established in plaint A and B schedule properties by the deceased Kakkadath Ramachandran. The court below assessed these contentions in the judgment impugned and found that C schedule is not a tangible one that can be subjected to partition. The court below assessed these contentions in the judgment impugned and found that C schedule is not a tangible one that can be subjected to partition. In arriving at that conclusion, we see that the court below has found that since plaint C schedule is only an estimate of profits, along with an estimate of certain alleged licence fees obtained by defendants 2 and 3 from the industry established and run in the plaint A and B schedule immovable properties, it cannot said to be an estate liable to be subjected to partition and it therefore decreed that the plaintiff is entitled to a share of profit, albeit only in the future. 6. It is now settled law that a claim for partition, be that in the nature of a suit or otherwise, will have to be underpinned on specific estate and tangible property. It is not enough for a plaintiff to allege that there are certain properties or certain sums of money that is available for partition without describing it specifically in the plaint itself. As far as plaint A and B schedule properties are concerned, they are specifically described by the plaintiff to be immovable properties owned by her deceased father. However, when it comes to the C schedule, it is obvious that it is not a tangible property, it is not even an ascertained sum, since the appellants merely alleges that the defendants have, to her rough estimate, earned an amount of Rs. 74,25,000/- from the industry and business run by them in plaint A and B schedule immovable properties for the last 8 years subsequent to their father’s death. It is pertinent and relevant that nowhere in the plaint does the appellant aver that this is an ascertained available sum of money and on the contrary, it is inevitable, even by her own statements in the plaint, that this is an unascertained sum of money which is still un-quantified. It, at best, represents only an estimate of the profits that the defendants may have received from running the business and the court below, in our view, justifiably and rightly held that such an estimate is not an estate that can be subjected to partition. It, at best, represents only an estimate of the profits that the defendants may have received from running the business and the court below, in our view, justifiably and rightly held that such an estimate is not an estate that can be subjected to partition. The law on this point is very clear and it doses not require great expatiation because when properties are partitioned the co-owners are also entitled to the share of profit, if any, including mean profits. In this case the father of the appellant died in the year 2005 and she estimates that after his death the total profits in the hands of defendants, to a share of which she claims to be entitled as being Rs. 74,25,000/-. She does not have a case, as we have indicated above, that this sum is available or that this has been put in a particular account or maintained as such. 7. Sri. Nirmal, learned counsel appearing for the appellant vehemently contents that schedule C must be considered to be a property liable and available for partition because, according to him, this money has been retained by the defendants in the nature of trustees on his client’s behalf. The submission is edificed on the assertion that when their father died she was entitled to 1/3 of the profits from the industry and that defendant No.2 who held this money, held it on her behalf also in the position of a trustee. He, therefore, contends that plaint C schedule is an estimate of the amounts which is ‘in trust’ and therefore, partible. 8. Apart from the fact that the defendants have filed a written statement specifically countering these assertions saying that such amounts are not available with them, we are firm in our cogitation that, even assuming that it is so available, it was up to the appellant to have at least pleaded that such amounts are presently available in an account or otherwise. The disturbing trend of the submissions of the learned counsel for the appellant is that what is being sought to be achieved through these proceedings appear to be an enquiry into the assets and amounts standing in the credit of the defendants through a process which she calls a partition. The disturbing trend of the submissions of the learned counsel for the appellant is that what is being sought to be achieved through these proceedings appear to be an enquiry into the assets and amounts standing in the credit of the defendants through a process which she calls a partition. It is obvious that she does not have any information as to whether this amount is available with the defendants and she has not even averred that these are standing in the credit of any account owned by them. She has made an attempt before the court below, by invoking the relevant provisions of the Code of Civil Procedure, in having an Advocate Commissioner appointed to make an investigative enquiry into the assets and assets of the defendants so as to launch a claim of partition over it. We are certainly of the view that this is impermissible and that the process of the Civil Courts cannot be abused by litigants to such extent, for the purpose of enquiry into the assets of the rival parties. We, therefore, are of the opinion that the court below was completely justified in not allowing partition of the C schedule property which, in our view, as has been rightly pointed by the court below, is not a partible estate and not amenable or subject to partition in law. 9. We also notice that a specific allegation is pleaded by the appellant in the memorandum of appeal that the court below was erred in decreeing the suit without allowing her to lead oral evidence. This asseveration, we must say at once it is completely without bona fides because, from the official record of the proceedings before the court below we find that the counsel for the appellant had recorded that the plaintiff has no oral evidence to offer and that the suit may be disposed of in terms of the available materials marked as evidence on record. That being indisputably so, these assertions and grounds raised in the appeal to such effect do not merit any consideration at all and we, therefore, repel it as being completely untenable. 10. That being indisputably so, these assertions and grounds raised in the appeal to such effect do not merit any consideration at all and we, therefore, repel it as being completely untenable. 10. Even though we have found that the appellant is not entitled to partition of that which she describes as plaint C schedule, it does not mean that she is not entitled to the share of profits from the business and industry run by defendants in plaint A and B immovable properties. We notice from the judgment and decree impugned that the court below has only granted future share of profits to the appellant from the 2nd defendant. We are not sure why the court confined the decree to such because we see that it is the specific claim of the appellant that she is entitled to the share of profits from the plaint A and B schedule properties, in which concededly an industry was being run by her father and which is now being managed by the 2nd defendant, her brother. We see no reason recorded in the judgment assailed herein, as to why the court below did not find her entitled to a share of profits in the business and industry run in the immovable properties. In such view of the matter, we are forensically compelled to interfere with that part of the decree of the court below which confines the plaintiff’s/appellant’s entitlement to share of profits only in future, namely after the filing of the suit. We, therefore, set aside that part of the decree and modify it declaring that the appellant/plaintiff is entitled to get the mesne profits also in addition to the future share of profits from plaint A and B schedule properties which have already been found to be partible and a share of which has already been alloted to her. Of course, the entitlement of the plaintiff will be subject to the laws of limitation as also the other provisions of law which govern such entitlement and she would obviously be competent to make such claims at the stage of the final decree. 11. Of course, the entitlement of the plaintiff will be subject to the laws of limitation as also the other provisions of law which govern such entitlement and she would obviously be competent to make such claims at the stage of the final decree. 11. In such view of the matter, we partly allow this appeal, confirming the decree of the court below with respect to plaint A and B schedule properties which have been ordered to be divided into three equal shares with one such share to be alloted to the appellant/plaintiff but modifying the 3rd direction in the decree to the extent to which the plaintiff has been made entitled to get only future share of profits. We order that the plaintiff will be entitled to mesne profits for a period of three years prior to the suit as well as future share of profits from plaint A and B schedule properties in terms of law, the quantum of which will have to be decided at the final decree stage. We leave it to the court below to decide whether the same learned Advocate Commissioner who had been appointed by it in the preliminary decree proceedings be appointed as Commissioner at the final decree proceedings and also reserve liberty to the parties to make suitable application for such purpose, if they are so advised. In the peculiar facts and circumstances detailed above, we deem it appropriate not to make any order as to costs and we leave the parties to suffer their respective costs in this appeal.