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TMI Blog1988 (3) TMI 444X X X X Extracts X X X X X X X X Extracts X X X X ..... thi- (died on Pillai Pillai mathinatha 13-5-51) (died) (D-1) (D2) (died) Pillai | (D-5) (2nd Pltff.) | ___________________________ | | M. Seethaiammal M. Rajammal alias Palliarai 1st wife (2nd wife) (died) (7th plaintiff) | | | ____________________________________________ | | | | | V.S. Palani Palani Kumara- Sivasubra- Ponnambalam Chockalingam Kumar swami maniam (5th plff.) (6th plff.) Pillai (3rd plff.) (4th plff.) (6th deft./ Applicant 3. There was an earlier litigation in the family in O.S. No. 50 of 1925 which ended in a compromise decree whereby Palanikumar Pillai and his seven sons divided their joint family properties. After the death of Palanikumar Pillai, there was a family arrangement on 2.1.1926 under which his second wife Ponnammal was to enjoy the properties described in Sche ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the III Schedule property under the partition of 1942 and consequently the title of plaintiffs 3 to 7 to the III Schedule house was declared subject to their payment of ₹ 214.28 to each of the other six sharers, viz., plaintiffs 1 and 2 and defendants 1 to 4 in the suit. The appellant herein filed Second Appeal No. 854 of 1971 in this Court and by judgment dated 23.8.1973, this Court held that there was no relinquishment by the appellant of his 1/6th share in the III Schedule property. As per the judgment of this Court, the appellant was declared entitled to 1/42 share in Schedule I and 1/6 share in Schedule III. 6. The plaintiffs filed I.A. No. 146 of 1972 on the file of Sub Court, Tirunelveli for passing a final decree even while the Second Appeal was pending in this Court. That application was dismissed for default on 6.8.1975. Thereafter, the suit was transferred to the file of the District Munsif, Sankarankoil and numbered as O.S. No. 153 of 1982. The plaintiffs filed I.A. No. 745 of 1982 for passing of final decree. With regard to the III Schedule house, their prayer in the application for passing a final decree was to allot the house entirely to plaintiffs 3 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 52 cents to plaintiffs 3 to 7 was accepted by the trial Court. Pursuant to the said order, of the trial Court, plaintiffs 3 to 7 deposited a sum of ₹ 749-98. In view of the same, the trial Court passed a decree on 30.9.1986 allotting 52 cents in item 3 of Schedules I and III Schedule property to plaintiffs 3 to 7. The appellant herein filed an appeal against the earlier order of the trial Court dated 9.5.1986 which was taken on file as A.S. No. 25 of 1987 on the file of Sub Court, Tenkasi and another appeal against the later order dated 30.9.1986 which was taken on file as A.S. No. 158 of 1986 on the file of the same Court. Obviously, the appeal against the later order was filed earlier as the number of the appeal indicates. Both the appeals were disposed of by the Subordinate Judge, Tenkasi on 21.12.1987 by two different judgments. The only point urged in the appeal against the earlier order of the trial Court related to the maintainability of the application for passing of final decree. The learned Subordinate Judge found that the application was maintainable and dismissed the appeal. In the other appeal, the contest related to the correctness of the order of allotment made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the properties and separate allotment of 1/6th share to the appellant herein. According to learned Counsel, the final decree now passed by the Courts below allotting the entire house to respondents 3 to 7 and directing payment of owelty to the appellant herein really goes against the terms of the preliminary decree and contravenes the judgment and decree of this Court in S.A. No. 854 of 1971. There is no substance whatever in this contention. 10. It is no doubt true that in the suit respondents 3 to 7 herein claimed to be exclusively entitled to the III Schedule house and this Court by its judgment in S.A. No. 854 of 1971 negatived that claim and held that the appellant was entitled to l/6th share. This Court only declared the l/6th share of the appellant herein. That cannot be construed as a direction by this Court to divide the III Schedule properties by metes and bounds and allot 5/6th share to respondents 3 to 7 and 1/6th share to the appellant herein. The question whether the house was divisible or not did not at all come up for consideration before this Court in that second appeal and that was a matter which could and should be decided only in the final decree proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e plaintiff's half share to him at a valuation and prevent the plaintiff from withdrawing the suit? On these questions the Bench of our High Court definitely held that no general power of sale can be spelt out from the provisions of the Act. On the other hand, the implication is that the legislation did not intend to confer on the Court a power of sale, apart from the power conferred under the provisions of the Partition Act. In propounding this principle, the Bench of our High Court respectfully agreed with the view expressed in Nitya Gopal v. Prem Krishna I.L.R., which was later followed in Chandhar Ghose v. Janaki Nath Ghose . While doing so, the Bench also dissented from the view expressed by a Bench of the Andhra High Court in Ramaprasad Rao v. Subbaramiah (1957) 2 An.W.R. 488 : 1957 A.L.T. 587 : I.L.R. (1957) A.P. 566 : A.I.R. 1958 A.P. 647. 12. The judgment of the Supreme Court on appeal from the decision in O.S.A. No. 108 of 1966 as reported in R. Ramamurthi v. V. Rajeswararao , discusses the only question whether in the circumstances of that case, the trial Court could allow withdrawal of the suit which involved the determination of the correct position under Order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he view taken by the Division Bench of this Court that the Court has no inherent power in a partition suit to order sale of a property which is not divisible. 13. The position was made clear by the Supreme Court itself in Badri Narain Prasad Choudhary and Ors. v. Nil Ratan Sarkar. This was also one of the decisions cited by learned Counsel for the appellant, though he cited it for a different purpose. In that case, the Supreme Court expressly approved the view taken by K. Subba Rao, C.J. speaking for a Division Bench of Andhra High Court in Ramaprasad Rao v. Subbaramiah (1957)2 An. W.R. 488 : 1957 A.L.T. 587 : I.L.R. (1957) A.P. 566 : A.I.R. 1958 A.P. 647, in these terms: The suit property, being incapable of division in specie there is no alternative but to resort to the process called owelty, according to which, the rights and interests of the parties in the property will be separated, only by allowing one of them to retain the whole of the suit property on payment of just compensation to the other. As rightly pointed on by K. Subba Rao, C.J. (speaking for a Division Bench of Andhra High Court, in Ramaprasad Rao v. Subbaramiah (1957)2 An.W.R. 488 : 1957 A.L.T. 587 : I.L.R. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uitable distribution. 23. From the aforesaid discussion of the Hindu Law texts, the case-law and provisions of the Partition Act, the law on the subject may be stated thus: Partition is a legal process by which joint title and possession of co-owners of the entire joint property is converted into separate title and possession of each of the co-owners in respect of specific item or items. The joint property is divided in specis and each one of the erst-while joint owners is put in possession of specific extent of property, which is allotted to his share. But many contingencies may be visualised when in practice the division by metes and bounds of every item of joint family property is not possible. A joint owner may be possessed of innumerable items of different extents, value, quality and nature. In dividing the properties among the various co-owners, it may not be possible to divide every items into distinct shares. A property will have to be allotted to one of the sharers and the other has to be compensated with money. This is technically called owelty. Sometimes, the property to be divided may consist of only one item, which cannot conveniently and equitably be divided bet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L.W. 652, is no longer good law in so far as it holds that the Court has no power outside the provisions of the Partition Act to order sale of a property which is not divisible. Hence, the contention of learned Counsel for the appellant that the Courts below had no power to direct a sale of the appellant's l/6th share to respondents 3 to 7 is not acceptable. 16. Further, I do not agree with learned Counsel's submission that the Courts below have directed the sale of the appellant's l/6th share to respondents 3 to 7. The final decree passed by the Courts below deals with Schedule I and Schedule III. In Schedule I, the appellant was declared entitled to l/42th share and in Schedule 3, the appellant has l/6th share. The final decree divided the land in Schedule 1 and allotted 52 cents thereof to respondents 3 to 7 and the entirety of III Schedule house to them. This is not a case in which the suit property, meaning thereby the entire suit property, is found to be indivisible and the Court allotting the same to one party with a direction to them to pay the value of the share of the other party. This is a case in which some portions of the suit properties were allotted to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or consideration. 19. It was next contended by learned Counsel for the appellant that there is no finding that the III Schedule house is not capable of division and the Courts below were wrong in relying upon a report of the Commissioner which was filed in I.A. No. 146 of 1972 on the file of Sub Court, Tirunelveli as that application was dismissed for default and that the appellant had no opportunity to canvass the correctness of that report before the Court. A copy of the Commissioner's report in I.A. No. 146 of 1972 which was an earlier application for passing of final decree has been produced before me by learned Counsel for respondents. Paragraph 2 of the said report deals with the house in question and it reads thus: 2. The 3rd Schedule property is a house in Vasudevanallur village. The plaintiffs 3 to 7 and the sixth defendant are each entitled to l/6th share in the house. The plaintiffs 3 to 7 are entitled to 5/6th share. The breadth of the house is only 12' 6 . So it cannot be partitioned, conveniently. The only course possible is to allot the house either to the plaintiffs or to the 6th defendant and to pay owelty to the other. I am herewith submitting a roug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bearing door No. 4 being in the enjoyment of respondents 3 to 7, it is necessary to allot the III Schedule property to them for convenient enjoyment and that was the reason why the III Schedule property was exclusively allotted to Subbiah Pillai in the family arrangement in 1926. Learned Counsel for the appellant did not challenge the correctness of the said finding before me. 21. Learned Counsel for the appellant finally submitted that there should be an auction between his client on the one hand and respondents 3 to 7 on the other. Having found that the allotment of III Schedule house to respondents 3 to 7 is the best mode of division, on the facts and circumstances of the case, I cannot accept the suggestion for an auction between the parties hereto. Thus, all the contentions urged on behalf of the appellant by learned Counsel are found to be without merit and consequently rejected. 22. That brings me back to the starting point where I suggested at the time of first posting of the case that the parties could agree upon the valuation of the III Schedule property so that the market value of 1/6th share of the appellant could be paid to him by respondents 3 to 7. While the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essity for taking evidence with regard to the value of the III Schedule property. 24. I am of the view that the course adopted by me has not only shortened the life of the litigation but also resulted in justice to both parties. 25. In the result, there will be a common decree in both the second appeals directing respondents 3 to 7 to pay a sum of ₹ 20,000 to the appellant on or before 31.5.1988. The order dated 9.5.1986 and the final decree dated 30.9.1986 made in I.A. No. 745 of 1982 on the file of the District Munsif, Sankarankoil as confirmed by the Subordinate Judge, Tenkasi in A.S. No. 25 of 1987 and A.S. No. 158 of 1986 are affirmed. A further clause will be included in the decree directing payment of ₹ 20,000 by respondents 3 to 7 to the appellant as owelty. The affidavit of the appellant found in the sealed envelope given by his counsel Mr. Govindarajan, estimating the market price of the III Schedule property at ₹ 75,000 and the memo, signed by respondents. 3 to 7 found in the sealed cover given by their counsel containing their offer to purchase the 1/6th share of the appellant at ₹ 20,000 will be part of the records and they will be attache ..... X X X X Extracts X X X X X X X X Extracts X X X X
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