Karnataka High Court
Vasudeva Murthy, Since Dead By His Lrs. ... vs Mariyappa, Since Dead By His Lrs. And ... on 16 September, 2003
Equivalent citations: ILR2003KAR4558, 2004(1)KARLJ277
Author: V.G. Sabhahit
Bench: V.G. Sabhahit
ORDER 20 RULE 18 CPC, ORDER 41 RULE 1 --Suit of plaintiff decreed declaring that the plaintiffs are entitled to one half share in the suit schedule property --In FDP proceedings Advocate Commissioner appointed -- Commissioner's report not accepted -- Court directing the Commissioner to divide the suit schedule property equally in terms of preliminary decree and to hand over respective shares to the plaintiffs and defendants - The same challenged in this appeal. Held -- The properties are to be divided by metes and bounds in the final decree proceedings and while doing the same, the object would be to preserve and protect and respect possession as far as possible. It is well settled that merely because the decree declares that the plaintiff is entitled to one half share in the suit schedule property that would not necessarily mean that he would be entitled to half share in each of the schedule property and what is to be borne in mind is that, only requirement is that the property allotted to each co-sharer in correspondence to his share and it is also well settled that court should make an endeavour to equalise the share which is recognised in law by making provision for payment of royalty. Order passed is contrary the principles laid down and is liable to be set aside. (B) CIVIL PROCEDURE CODE, 1908 (CENTRAL ACT NO. 5 OF 1908) - ORDER 20 RULE 18 -- Final decree proceedings -- Value of property to be ascertained -- What date to be considered. Held -- The value of the property has to be ascertained as on the date of the final decree proceedings and it is necessary if the parties so desire to appoint a Commissioner to ascertain market value of the property. Appeal allowed. JUDGMENT Sabhahit, J.
1. This appeal by the petitioner in FDPNo. 10010/92 on the file of the X Addl. City Civil Judge, Mayo Hall, Bangalore, is directed against the order dated 12.12.1997 wherein the Trial Court has directed the Commissioner to divide the suit schedule property equally in terms of the preliminary decree and to hand over respective share to the plaintiff and the defendants.
2. The essential facts of the case leading upto this appeal with reference to the rank of the parties before the Trial Court are as follows:
The plaintiffs filed O.S No. 10654/82 seeking for decree for partition and separate possession of plaintiffs one half share in the schedule property and for permanent injunction against the defendants, their agents restraining them from interfering with the possession of the first plaintiff in respect of the constructed portion of the schedule property and for costs.
3. The suit was resisted by the defendants and by judgment dated 29.6.1992 the suit of the plaintiff was decreed declaring that the plaintiffs are entitled to one half share in the suit schedule property. The plaintiff are not entitled to injunction as prayed for in the plaint and that the property shall be divided in the final decree proceedings with reference to the quality of construction and situation and parties were directed to pay their own costs and accordingly the decree was drawn. Thereafter, application in final decree proceedings was filed. In that Advocate Commissioner was appointed to submit his report and the Trial Court held that in view of the findings in the suit, the proposal made by the Commissioner cannot be accepted and directed the Commissioner to divide the suit schedule property equally in terms of preliminary decree and to hand over respective shares to the plaintiffs and defendants.
4. Being aggrieved by the said order, this appeal is filed by the first plaintiff.
5. I have heard the learned Counsel appearing for the appellants and the learned Counsel appearing for respondents 2 to 5. Appellant and first respondent died during the pendency of this appeal and their legal representatives are brought on record.
6. Having regard to the contentions urged, the point that arises for determination in this appeal is:
Whether the order passed by the learned Addl. City Civil Judge ordering the Commissioner to divide the suit schedule property equally in terms of the preliminary decree calls for interference in this appeal?
and I answer the above point in the affirmative for the following reasons:
7. It is clear from the perusal of the judgment and decree passed in O.S.No. 10654/82 that the plaintiff was declared to be entitled to one half share in the suit schedule property and it is specifically ordered that property shall be divided in the final decree proceedings with reference to the quality of construction and situation. It is clear from the perusal of judgment passed in the said suit that there was a specific issue as to whether the construction was put up by the plaintiffs or the first defendant had constructed put of his own fund or whether the first defendant has also contributed Rs. 20,000/- towards the said construction and the said issue was answered by holding that the defendant has failed to prove that he contributed Rs. 20,000/- however the Court declined to express any opinion regarding division of the property and left it to be considered at the time of final proceedings. The Commissioner's report shows that he visited the schedule property in the presence of plaintiff No. 1 and defendant No. 2 and Advocate appearing for the plaintiffs and the defendants and on observing the suit schedule property he has given the opinion as follows:
"As per the preliminary decree of this Hon'ble Court the plaintiffs are entitled to one half and the defendants are entitled to the other half of the schedule property.
a) The schedule property consists of one vacant land of the southern side and another vacant land on the northern side.
b) There is a road running in between the schedule property that is being made use by the parties and the public.
c) There is a built in part (residential construction) in the schedule property, adjacent to the said road, in which tenants are in occupation.
Since the road runs within the schedule property and since there are two vacant lands situated in the schedule property on southern and northern side, and since there is an alleged passage on the northern side of the schedule property, and since the built area is situated in between, the value of the vacant land and the built in area is bound to differ and also the extent of the vacant land is more than the built in area, the parties could partition the schedule property as (buit area value and the non built area value and the non-built area value) and the difference in value could be compensated among themselves, to arrive at a final settlement in which the decision of this Hon'ble Court is requested in the interest of both the parties. Or in the alternative in case this Hon'ble Court comes to the conclusion to sell the schedule property the sale proceeds could be shared between the parties without any problem".
8. It is well settled that preliminary decree only declares the share of the parties and the properties that are to be divided. The properties are to be divided by metes and bounds in the final decree proceedings and while doing the same, the object would be to preserve protect and respect possession as far as possible. It is well settled that merely because the decree declares that the plaintiff is entitled to one half share in the suit schedule property that would not necessarily mean that he would be entitled to half share in each of the schedule property and what is to be borne in mind is that, only requirement is that the property allotted to each co-sharer in correspondence to his share and it is also well settled that Court should make an endeavour to equalise the share which is recognised in law by making provision for payment of owelty. The law of the land on the subject has been laid down by the Supreme Court in M.L.SUBBARAYA SETTY v. M.L. NAGAPPA SETTY, AIR 2002 SC 2066 wherein it has been held as follows:
"28. xxx xxx xxxx The direction that the plaintiff is entitled to 2/19th share in the joint family property and that he shall be put in separate possession of the properties giving him share by metes and bounds does not mean that every item of the property is to be divided between co-sharers. It is correct that the only requirement is that property allotted to each co-sharer should bear approximately the same value as corresponds to his share. It may also not be necessary that if the properties consist of movable and immovable properties then each party must necessarily be given a share in all movable and immovable properties. While effecting partition of joint family properties, it may not be possible to divide every property by metes and bounds. The allocation of properties of unequal value may come to the share of a member of a joint family at the time of effecting partition but for that necessary adjustments have to be made. It can also happen that some of the co-sharer on partition may not get any share in immovable property. No hard and fast rule can be laid. It depends upon the facts of each case. It depends upon the nature of the immovable property and number of such properties as also the number of members to whom it is required to be divided. Properties of a larger value may go to one member. Property of lesser value may go to another. What is necessary however, is the adjustment of the value by providing for payment of one who gets property of higher value. In short, there has to be equalisation of shares."
"29. Another question to be determined is as to the date of valuation of the properties in a suit for partition. Ordinarily, it has to be the date of the passing of the final decree and not the date of filing of the suit for partition. In a given case, however, there may be exception of this general rule. It is a matter of common knowledge that such suits for partition take considerable time for disposal. There is a big time lag between date of filing of the suit and date of the decision thereof. There is also considerable lapse of time between passing of preliminary decree and passing of final decree. Take the present case, suit was filed in the year 1948, preliminary decree proceedings were finalised in 1971 by decision of this Court. Thereafter more than 30 years have lapsed, the parties are still no way near the final partition. It would be absurd if it was to be held that the valuation of 1940 or 1948 should be taken. It is also possible that in a given case, the value of one property may appreciate drastically while not so in the case of other properties or it may even decline and some of the parties may be in possession of those properties. It has been the endeavour of the Courts in such suits to protect, preserve and respect the possession of the parties as far as possible. While so protecting, there has to be equalisation of shares which has been recognised in law "by making a provision for payment of owelty."
9. It is clear from the perusal of the order passed by the Trial Court that the Trial Court has rejected the Commissioner's report and has failed to bear in mind the above said principles which are required to be borne in mind while partitioning to properties by metes and bounds in final decree proceedings and the order that is passed is contrary to the above said principles and the order that is passed by the learned Civil Judge, therefore, cannot be sustained and the same is liable to be set aside and the interest of justice requires that it would be appropriate that the matter be remitted to the Trial Court with a direction to dispose of the final decree proceedings in accordance with law in the light of the principles laid down by the Supreme Court in the above said cited case of SUBRAYA SETTY's case referred to above. In view of the decision of the Supreme Court it is clear that the value of the property has to be ascertained as on the date of the final decree proceedings and it is necessary if the parties so desire to appoint a commissioner to ascertain market value of the property and pass appropriate orders in the light of the principle laid by the Supreme Court in SUBRAYA SETTY's case and having regard to facts and circumstances of this case to workout equity between the parties. Accordingly, I pass the following order:
The appeal is allowed. Order dated 12.12.1997 passed by the X Addl. City Civil Judge, Bangalore, in FDP. No. 10010/92 is set aside and the matter is remitted to the Trial Court with a direction to dispose of the FDP in accordance with law in the light of the observations made by the Supreme Court and this Court in the body of the order. No order as to costs in this appeal.