Kerala High Court
Mohammed Sayeed vs Jaseena on 16 December, 2002
Author: Pius C. Kuriakose
Bench: Pius C. Kuriakose
JUDGMENT K.A. Mohamed Shafi, J.
1. This appeal is preferred by the defendant in O..S. 217/1994 challenging the final decree and judgment passed by the Subordinate Judge's Court, Thalassery.
2. The lower court passed a preliminary decree for partition as per the decree and judgment dated 22.12.1995. Subsequently, a final decree is passed by the lower court as per the final decree and judgment in I.A. 760/98 in O.S. 217/94 dated 25.1.2001. The defendant in the suit has preferred this appeal challenging the final decree and judgment passed by the lower court.
3. The suit for partition is filed by the plaintiff-daughter against the defendant -father, though she claimed partition of plaint A schedule property into two equal shares and to allot one such share to her and for reservation of the house and plaint B schedule movables, the lower court passed a preliminary decree for partition of the plaint A schedule property into two equal shares and to allot one such share to the plaintiff reserving the house in favour of the defendant and to allot a cot and form bed out of plaint B schedule movables to the plaintiff without valuation.
4. As per the final decree, the lower court allotted Plot A being share No. 1 in Ext. C4 plan to the plaintiff and Plot B in Ext. C4 plan to the defendant directing the defendant to pay Rs. 5,66,145.55 to the plaintiff towards equalisation of shares with interest thereon at 6% per annum from the date of delivery of any of the two plots charged on the property.
5. In the above appeal the appellant plaintiff has raised several contentions against the final decree passed by the lower court. But at the time of hearing of the appeal the learned counsel for the appellant confined his arguments against the award of interest on the owelty amount awarded for equalisation of the shares. He submitted that being the amount awarded for equalisation of the shares, the owelty awarded in partition suit part takes the nature and character of the asset in the partition and it cannot be characterised as a debt or liability due from the person from whom owelty is payable. Therefore, according to him, no interest can be awarded for the owelty amount awarded in a partition suit for equalisation of shares between the sharers and as such the direction in the final decree against the appellant to pay interest at 6% per annum on the owelty amount payable to the respondent is illegal and unsustainable.
6. In partition suits where it is not possible to divide the properties by metes and bounds equally, it will be necessary to allot properties of unequal value amongst the different sharers in the suit. When properties of distinct proportion and value are allotted to a sharer by way of adjustment of the value, the sharer to whom the property of more value is allotted has to be directed to pay the sharer to whom the property with lesser value is allotted by way of equalisation of their shares. Such provision for equalisation of shares is recognised by law and termed as provision for owelty or equality of partition.
7. The Supreme Court has considered the above aspect in the decision in T.S. Swaminatha v. Official Receiver (AIR 1957 SC 577) wherein it is observed as follows:
"(14) It must be remembered that the decree was one for partition of the properties belonging to the joint family of which the defendant No. 3 and the appellant were coparceners. While effecting such a partition it would not be possible to divide the properties by metes and bounds there being of necessity an allocation of properties of unequal values amongst the members of the joint family. Properties of a large value might go to one member and properties of a smaller value to another and therefore there would have to be an adjustment of the values by providing for the payment by the former to the latter by way of equalisation of their shares. This position has been recognised in law and a provision for such payment is termed 'a provision for owelty or equality of partition'.
8. From the above observations made by the Supreme Court it is clear that owelty payable is not a debt as understood in the ordinarily parlance and under law. But it part takes the value of the property which the sharer to whom property in value is allotted from the person to whom more property than what he is legitimately entitled is allotted in partition and as such it assumes the character of a charge on the property for the unpaid purchase price as provided under Section 55(4)(b) of the Transfer of Property Act.
9. In the decision in Parvathi Amma v. Makki Amma (1961 KLT 937 (FB)) a Full Bench of this Court considered whether the owelty amount is a debt coming within the ambit of Agriculturists Debt Relief Act (Kerala) Act 31/1958). By the majority judgment the Full Bench of this Court has observed as follows:
"The co-sharer who accepts the lesser properties gives a part of his share to the other co-sharer in consideration of a sum of money which is called 'dwelty'. In other words, owelty represents the unpaid price of the excess land taken from one co-sharer and given to another on partition; it is as if a portion of the property that really belonged to B has been assigned to A & A is made to pay the price therefore to B. B is therefore entitled to a vendor's share for the price remaining unpaid.
5. The allocation may indicate only that the share given to A is in excess of his due share to the extent of so much value, that the share allotted to B is deficient to that extent, and that therefore A has to give to B the value of the excess, so as to equalise the value that each gets on partition. It is as if the excess property has merged in A's share and become unidentifiable. As the specific property which is the counter-part of owelty is not knowable, a charge thereon is, in the nature of things, impossible. The charge for owelty is therefore spread over the entire share that comprise the excess property; but that does not, in our opinion, change the basic nature of the charge. Owelty is, therefore, a liability for which a charge as provided in Section 55(4)(b) of the Transfer of Property Act does enure." .
10. Since owelty is the amount for equalisation of the share payable by the sharer who is allotted more property than his legitimate share, to the sharer who is allotted property of lesser value that his legitimate share in partition pan taking the significance of the seller's charge for the unpaid purchase price provided under Section 55(4)(b) of the T.P. Act, it carries interest from the date of delivery of possession of the excess property to the sharer to whom the property is allotted. Therefore, we find that the respondent is entitled to interest on the owelty amount payable by the appellant to her. As such the lower court is perfectly justified in awarding interest on the owelty amount payable by the appellant to the respondent in the final decree in this case.
11. It is the common case that the property is in the possession of the appellant. But in the impugned judgment in Clause (3) of the operative portion the lower court has directed the appellant to pay interest at 6% per annum from the date of delivery of any of the two plots. Since the appellant is already in possession of the property taking delivery of the property as per the final decree is only a formality and therefore, the respondent is entitled to interest on the owelty amount awarded in this case from the date of final decree passed by the lower court. Therefore, the direction by the lower court in the final decree to pay interest at 6% per annum from the date of delivery of any of the two plots is modified and the appellant is directed to pay interest at 6% per annum on the owelty amount from the date of final decree passed by the lower court.
12. The appeal being devoid of any merits, is dismissed with the above observation.