Kerala High Court
M.Basheer vs M.Fathima Beevi on 19 February, 2020
Author: Devan Ramachandran
Bench: Devan Ramachandran
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941
RFA.No.209 OF 2006(C)
AGAINST THE JUDGMENT IN IA.NO.924/2002 IN OS 81/1997 OF SUB COURT,ATTINGAL
DATED 30.10.2004
APPELLANTS:(COUNTER PETITIONERS/DEFENDANTS):
1 M.BASHEER, PUTHUVALVILA VEEDU,
(SAHI MANSION), NEAR NAMAM BRIDGE, KIZHUVILAM.P.O, ATTINGAL,
THIRUVANANTHAPURAM DISTRICT.
2 M.NAZEEHUDEEN, S/O.MUHAMMED HASSIM
PUTHUVALVILA VEEDU (SAHI MANSION), NEAR MAMAM BRIDGE,
KIZHUVILAM.P.O, ATTINGAL, THIRUVANANTHAPURAM DISTRICT.
TRANSPOSED AS ADDITIONAL R6.
BY ADVS.
SRI.S.VINOD BHAT
KUM.ANAGHA LAKSHMY RAMAN
SRI.LEGITH T.KOTTAKKAL
RESPONDENTS:-(PETITIONERS/PLAINTIFFS):
1 M.FATHIMA BEEVI
W/O.VAHABUDEEN, VILAYIL HOUSE, VEMBAYAM VILLAGE, POTHENCODE.P.O.
2 M.LAILA BEEVI
W/O.SAINULABDEEN, MEERUMAHAL, VEMBAYAM VILLAGE, POTHENCODE.P.O.
3 M.NAZEEMA BEEVI
W/O.ABDUL SAMAD, KHASANA, VETTUROAD, KANIYAPURAM.
4 M.SHAFEEHATH BEEVI
DR.C.K.ABDUL SALAM, GOVT. QUARTRS, P.H.CENTRE, KOPPAM, PATTAMBI,
PALAKKAD.
5 NAZEEHATH BEEVI
W/O.ABDUL RAHIM, PLAVILA HOUSE, KURUKKADU, THONNAKKAL.P.O.
*6 M. NAZEHUDEEN
S/O LATE.MUHAMMED KASSIM, PUTHUVAL VILA VEEDU, (SHAHI MANSION)
NEAR MAMOM BRIDGE, KIZHUVILAM POST, THIRUVANANTHAPURAM DISTRICT,
NOW RESIDING AT CHINNU MANZIL.
*[THE SECOND APPELLANT IN THE APPEAL IS TRANSPOSED AS ADDITIONAL
6TH RESPONDENT VIDE ORDER DATED 30.09.2011 IN IA 2972/2011.]
R1-5 BY ADV. SRI.R.S.KALKURA
R6 BY ADV. SRI.T.K.RADHAKRISHNAN
R6 BY ADV. SRI.ANEESH CHIDAMBARAN
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18.02.2020, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RFA.No.209 OF 2006(C)
2
CR
JUDGMENT
The functional role of a Partition Commissioner and the statutory obligation of Courts while dealing with the report of such Commissioner, in a suit for partition, under the ambit of Order XXVI Rule 14 of the Code of Civil Procedure is called under scanner by the appellant in this appeal.
2. This appeal was originally preferred by defendants 1 and 2 in O.S.No.81/1997 on the files of the Court of the Sub Judge, Attingal; but pending this lis, the second appellant applied to transpose himself as the sixth respondent giving up the challenge against the impugned judgment and decree. Hence, as now matters stand, there is only one appellant, who is the first defendant in the aforementioned suit.
3. The appellant alleges that the final judgment and decree of the Trial Court has been issued in flagrant violation of the provisions of Order XXVI Rule 14 of the Code of Civil Procedure (for short, 'the CPC'), since the said Court has accepted the report of the Commissioner even without considering the objections filed by him against the same. RFA.No.209 OF 2006(C) 3
4. The appellant says that, as is clear from the impugned judgment, the Trial Court has recorded that objections had been filed by him much prior to the date on which the decree had been issued, but that since the appellant "did not take any steps to examine either the commissioner or the experts to establish that there is any defect in the Commissioner's report" (sic.), the objections are untenable. The appellant contends that these conclusions of the Trial Court are wholly opposed to law and that, hence, it is liable to be set aside by this Court.
5. I have heard Smt.Anagha Lakshmy Raman, learned counsel appearing for the appellant; Sri.R.S.Kalkura, learned counsel appearing for respondents 1 to 5/plaintiffs; and Sri.T.K.Radhakrishnan, learned counsel appearing for the sixth respondent (who was originally the second appellant).
6. For the sake of convenience and clarity, I will hereinafter refer to the parties as they are ranked in the Trial Court.
7. Smt.Anagha Lakshmy Raman, learned counsel for the appellants, began her submissions by asserting RFA.No.209 OF 2006(C) 4 vehemently that the report of the Advocate Commissioner, which has been now accepted by the Trial Court, is untenable because it had been settled without even issuing notice to her client. She says that, going by Order XXVI Rule 14 of the CPC, it was the duty of the Trial Court to have considered her client's objections and to have then varied, modified or set aside the report of the Commissioner as the situation warranted. She says that since the Commissioner has settled the report even without issuing notice to her client, the Trial Court ought not to have accepted the same but should have rejected it under the mandate of the afore provision.
8. The learned counsel further says that the impugned judgment is unacceptable since the only reason why the Commissioner's report has been approved by the Trial Court is that the objections filed by her client had not been established by him by examining the Commissioner or the experts who valued the properties. Smt.Anagha Lakshmy Raman, submits that the procedure adopted by the Advocate Commissioner and by the Trial Court goes totally RFA.No.209 OF 2006(C) 5 contrary to the role of a Partition Commissioner under law and she relies on the opinion of in Mitra's Co-ownership and Partition, 8th edition (Eastern Law House), to impress upon me that as per the procedure laid down under Order XXVI Rule 14 of the CPC, the Commissioner has to conduct such necessary enquiry before dividing the property into as many shares and that for effecting a fair partition, the properties shall have to be valued according to the market value prevalent at that time; for which purpose, the parties will have to be called upon to offer their opinion on the valuation. She says that even if, an agreed valuation is found to be grossly inadequate, the Commissioner is not bound to accept such valuation and that he has to re-assess the value of the properties by adopting any of the recognized methods of valuation, after examining necessary witnesses and calling for any document, as is sanctioned by the provisions of Sub Rule 1 to Rule 17 of Order XXVI, which construes the Commissioner to be a Civil Court for such purposes.
9. Smt.Anagha Lakshmy Raman, thereafter, asserts RFA.No.209 OF 2006(C) 6 that the Partition Commissioner is merely called upon to make proposals for partition and that on the basis of such report, the Trial Court has to hear the parties and adjudicate upon it in the light of the preliminary decree and their submissions. She says that the proposal of the Commissioner and the reasons in support thereof do not bind the parties; and that it is only when the Court, after hearing them, accepts his report and passes the final decree in accordance thereof, that it obtains sanctity. She relies on the judgment of the Hon'ble Supreme Court in S.S.Munna Lal v. S.S.Rajkumar and Others [AIR1962 SC 1493] in substantiation of her contentions and submits that even a cursory look through the procedure adopted by the learned Commissioner in this case and by the Trial Court, will make it luculent that all these principles have been jettisoned. She thus prays that the impugned judgment and decree be set aside.
10. In opposition to the afore submissions made on behalf of the appellants by Smt.Anagha Lakshmy Raman, the learned counsel appearing for the plaintiffs - Sri.R.S.Kalkura, RFA.No.209 OF 2006(C) 7 submits that he has no contentions contrary to the afore principles of law - they being well established - but that they will have to be tested in the light of the conceded facts and pleadings available on a case to case basis. Sri.R.S.Kalkura, thereafter, took me through the objections filed by the appellants before the Trial Court to assert that all which is alleged therein is that the Commissioner had not issued notice to him before the reports have been finalized; that plaint A and B schedule properties have been excessively valued; that the building in plaint schedule B property has been valued grossly in excess of the actual cost of its construction; that schedule C to M --which have been allotted to the plaintiffs and the 2 nd defendant -- have been valued much lower than what it should have been done; that he is entitled to 60 cents of garden land and 40 cents of paddy field; and finally that the experts. who had been assisting the Advocate Commissioner in valuing the property, are private engineers, who are susceptible to outside influence.
11. Sri.R.S.Kalkura, submits that as is ineluctable RFA.No.209 OF 2006(C) 8 from the afore objections, the appellant was solely concerned about the ovelty amounts payable by him, because the thrust of his objections are that schedule A and B were valued high, while schedule C to M were valued lower; thus he being mulcted with a large ovelty of nearly Rs.10 lakhs to be paid to the plaintiffs and to the 2 nd defendant. Sri.R.S.Kalkura, then contented that even if these objections had been taken note of by the Trial Court, the disputations would have been only with respect to the ovelty amounts and nothing else; and therefore, that the distribution of the assets, as now settled by the learned Commissioner and accepted by the Trial Court, may not be, in any manner, interfered by this Court. He thus prays that this appeal be dismissed.
12. Sri.Radhakrishnan, learned counsel appearing for the 6th respondent (who was the original 2 nd appellant), also submitted that the valuation of the properties, as made by the learned Advocate Commissioner, is inequitable and that his client is entitled to receive nearly Rs.5 lakhs in ovelty from the appellant/1st defendant. He concedes that even RFA.No.209 OF 2006(C) 9 though his client had filed this appeal as the 2 nd appellant, he had subsequently, on 24.09.2011, filed I.A.No.2972/2011, stating that he is not interested in prosecuting it and that he be transposed as a respondent. He, however, asserts that in- spite of this, he is entitled to raise the afore objections.
13. I have considered the afore submissions and have also examined the pleadings, documents marked in evidence and the testimonies of the witnesses.
14. When I read the objections filed by the appellant before the Trial court, it is without doubt, as rightly stated by Sri.R.S.Kalkura, that broadly four or five objections have been raised therein. For the first, the appellant asserts that the Advocate Commissioner did not issue notice to him and that the report was settled behind his back. For the second, he says that the valuation of the decree A and B schedule properties are excessive and that, instead of Rs.30,000/- per cent as now fixed by the commissioner, the value should have been fixed at Rs.5,000/- and no more. For the third, he says that the building in plaint A and B schedule properties, was not constructed by his father but by himself and that he had RFA.No.209 OF 2006(C) 10 expended much lesser value than what has been found by the learned Commissioner. For the fourth, he alleges that the valuation of decree C to M schedule properties ought to have been fixed at Rs.3,000/- on an average and that the present valuation is grossly inadequate. For the fifth, he asserts that he is entitled to 60 cents of garden land and 40 cents of paddy land; and finally, that the experts, who had assisted the Commissioner in valuing the properties, are susceptible to outside influence.
15. When I test the submissions of Smt.Anagha Lakshmy Raman, on the touchstone of the afore objections, it becomes rather obvious that apart from the valuation of the properties, the appellant does not have a case of any other prejudice having been caused to him on account of the allotment of the properties, as has now been done by the Trial Court. As per the impugned judgment and decree, plaint A and B schedule properties have been allotted to the appellant; while the other properties have been allotted to the plaintiffs and the 2nd defendant.
16. In fact, it is pertinent that in the preliminary RFA.No.209 OF 2006(C) 11 decree, which has been accepted by both sides, it is clearly recorded that the 1st defendant/appellant herein, sought reservation over the building situated in plaint A schedule property (shown as item No.1 in the judgment), on the assertion that he had been residing therein with his family and that on the death of his father, both plaint A and B (shown in the judgment as items 1 and 2) came into his possession, thus consequently, that he is entitled to retain the same. Obviously, therefore, when the preliminary decree has recorded and accepted his claim in such manner, which has never been contested by him thereafter -- even in this appeal, it is indubitable that he cannot now turn around and say that he should have been allotted other properties but not plaint schedules A and B.
17. Even though, admittedly, the objections filed by the appellant did not seek re-distribution of the properties, I have referred to it above because, during submissions, Smt.Anagha Lakshmy Raman, learned counsel for the appellant, submitted that her client is willing to give up plaint schedule A and B in favour of the plaintiffs, if they are willing RFA.No.209 OF 2006(C) 12 to surrender one half of schedule F property, which is now bordering a National Highway. I had, therefore, asked Sri.R.S.Kalkura, learned counsel for the plaintiffs, as to whether this is acceptable, to which he replied to the negative. Hence I cannot disturb the findings in the impugned judgment and decree as regards the allotment of the properties because, as I have said above, it was the appellant who wanted reservation over plaint A and B schedules which has been granted in the preliminary decree and which, thereafter, has been confirmed in the impugned final judgment and decree.
18. The sum total of the afore, would make it without doubt that the only germane objection of the appellant is with respect to the valuation of the properties and consequently, the ovelty fixed.
19. With respect to the afore issues, the submissions of the appellant is that the Advocate Commissioner had not issued any notice to him before the report had been settled. However, the statements in the report of the learned Advocate Commissioner, which has been marked on record as Ext.C1, RFA.No.209 OF 2006(C) 13 would show that he had attempted to serve notice on the learned counsel appearing for the appellant and the 2 nd defendant but that they refused to accept it, thus constraining him to issue notice under certificate of posting, the evidence of which has been enclosed along with the report itself. Perspicuously, therefore, the contention of the appellant that the Commissioner's report is untenable because he was not issued with a notice becomes irrelevant; and, in any event of the matter, it would be of no consequence, because the appellant has not been able to show any prejudice having been caused to him on account of this fact, except that the valuation of the properties are not acceptable to him.
20. On the question of valuation, I notice that the specific contention of the appellant in his objections is that plaint A and B schedule properties have been valued high; while plaint C to M schedule properties have been valued low. He says that the value of plaint A and B ought to have been not more than Rs.5,000/- per cent, while the value for plaint C to M schedule properties ought to have been not less than Rs.3,000/-. It is thus ineluctable that the appellant concedes RFA.No.209 OF 2006(C) 14 that the centage value of schedule A and B properties are higher than that would have been obtained for schedule C to M properties. For that reason also, I cannot find any cause for the appellant to now claim that he should be given a portion of the F schedule property since admittedly, even going by his objections, the value of said schedule property was lower to that which has been allotted to him.
21. As regards the contention of the appellant that he is entitled to 60 cents of garden land and 40 cents of paddy land is concerned, I am afraid that this is also completely untenable, since going by the preliminary decree, he would not be entitled to such a share by any stretch of imagination I therefore, repel such contentions as being nothing more than an aggressive wish.
22. That said, however, I cannot find favour with the approach of the Trial Court in having rejected the objections of the appellant merely on the ground that he had taken no steps to have the Commissioner examined. I am afraid that this conclusion of the said Court goes contrary to Order XXVI Rule 14 of the CPC, which provides clearly that it is the Court RFA.No.209 OF 2006(C) 15 which is enjoined to issue appropriate orders, either confirming varying or setting aside the Commissioner's report, for which purpose, it does not mandate that the Commissioner should be examined or that his views obtained. Clearly, therefore, the afore said provision make it enjoined on the Trial Court below to consider the validity and rectitude of the Commissioner's report and to then issue a final decree, so as to obtain equitable distribution to all the parties, as per the stipulations in the preliminary decree.
23. In the afore scenario this Court, normally, could have been justified in intervening with the impugned judgment and decree, but as have been already seen above, the only germane objection of the appellant against Ext.C1 - Commissioner's Report was with respect to the valuation of the plaint schedule properties, which has now burdened him with a large ovelty of nearly Rs.10 lakhs, out of which, Rs.5,44,328.56/- is payable to the plaintiffs; while an amount of Rs.4,99,131.22/- is payable to the 2nd defendant (who was the original 2nd appellant.
24. However, during hearing, Sri.R.S.Kalkura, submitted RFA.No.209 OF 2006(C) 16 that, though his clients are entitled to the ovelty they are willing to give up such claim and also to honour the owelty now being claimed by the 2nd defendant, so that the burden of paying the same can be removed from the shoulder of the appellant, purely to buy peace and to obtain a quietus to the whole issue. He says that his client is making this suggestion only because they want to end this litigation at least now, since most of them are sick, infirm and even on death bed and that they do not want to continue to litigate solely on the aspect of ovelty.
25. Sri.Radhakrishnan, to the afore suggestion of Sri.R.S.Kalkura, responded by saying that his client will not give up their claim for ovelty from the appellant but that if the plaintiffs are willing to pay the same within a time frame, he will not stand in the way since such payment can also be treated as a discharge in favour of the appellant as per the final decree and judgment.
26. Axiomatically, when the appellant is rid of the burden of paying ovelty to the plaintiffs and to the 2 nd defendant, the objections raised by him before the Trial Court will virtually be RFA.No.209 OF 2006(C) 17 construed as having been accepted and he should have no further grievance against the impugned judgment and decree.
27. I therefore, asked Smt.Anagha Lakshmy Raman, learned counsel for the appellant as to the afore suggestion made by Sri.R.S.Kalkura and she submitted that her client is not concerned merely about the ovelty but also about the allotment of the properties. However, as I have already seen above, this contention is not available to the appellant at this stage, since the preliminary decree itself provided that he shall be allotted plaint schedule A and B as far it is possible, since he himself had staked a claim over it on the assertion that he had constructed a house thereon and is residing therein.
28. That said, since Sri.R.S.Kalkura now submits that his clients are willing to take over the entire burden of ovelty , I do not see any reason why I must entertain this appeal further since, as I have already indicated above, by doing so, the effect is that the appellant effectively succeeds in this appeal, based on his objections raised before the Trial Court.
29. In the conspectus of the above, I deem this appeal deserving to be allowed to the limited extent of declaring that RFA.No.209 OF 2006(C) 18 the plaintiffs will not be entitled to claim any ovelty from the appellant; and that the burden of the ovelty amount of Rs.4,99,131.22/-, payable to the 2 nd defendant, will be shifted to the plaintiffs, which they will pay within a period of one month from the date of receipt of a copy of this judgment.
Resultantly;
a) This appeal is allowed in part, vacating the directions in the judgment and decree in O.S.No.81/97 on the files of the Sub Court, Attingal to the 1st defendant to pay ovelty of Rs.5,44,328.56/- to the plaintiffs and Rs.4,99,131.22/-, to the 2 nd defendant, but confirming the same in all other respects.
b) The plaintiffs will pay an amount of Rs.4,99,131.22/- to the 2nd defendant, being the ovelty entitled to him, within a period of one month from the date of receipt of a copy of this judgment and if they fail or refuse to so, the 2 nd defendant will be at liberty to recover the same from the plaintiffs and their assets; for which purpose, a charge for such sum under Section 55 (6)(b) of the Transfer of Property Act is declared on plaint C, F, G, H, I, J, K and M schedule properties.
c) In the nature of the circumstances that I have noticed RFA.No.209 OF 2006(C) 19 herein, I do not deem it appropriate to make any order as to costs; and I consequently direct the parties to suffer their respective costs.
SD/-
DEVAN RAMACHANDRAN
Stu/rp JUDGE