Supreme Court - Daily Orders
Sunil Kumar vs Rekha on 7 April, 2026
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. /2026
[ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL)
NO.21202/2021]
SUNIL KUMAR & ORS. APPELLANT(S)
VERSUS
REKHA & ORS. RESPONDENT(S)
O R D E R
1. Leave granted.
2. Heard learned counsel for the parties.
3. This appeal arises from an order of the High Court of Kerala at Ernakulam dated 17.09.2021 in RFA No.252/2020 (F) whereby the High Court set aside the final decree passed by the Trial Court and remanded the matter for a fresh consideration by making certain observations.
4. There were four shareholders to the suit schedule property. Three of them instituted Original Suit No.1156 of 2011 against the fourth, for partition. A preliminary decree was passed in the following terms: Signature Not Verified “In the result, a preliminary decree is passed in Digitally signed by KAVITA PAHUJA Date: 2026.04.15
the suit as follows:17:33:00 IST Reason: 1
1. The plaint schedule property shall be divided into 4 equal shares. The plaintiffs are jointly entitled for 3 such shares.
2. The defendant is entitled for 1 share. The share of the defendant shall be allotted on payment of sufficient court fee.
3. The costs of the suit shall come out of the estate.
4. Any one of the parties can apply for passing of final decree.”
5. Based on the preliminary decree, application was submitted for preparation of final decree. The Trial Court after considering the objections and the report of the Commissioner proposing lots, passed a final decree in the following terms:
“Accordingly, final decree is passed as follows:
1. The plaint schedule properties are divided into four equal shares, by value, keeping 3 such shares as one compact plot.
2. Plaint ‘E’ schedule properties in Ext.CI(a) is allotted to the respondents 2 to 4 jointly.
3. The remaining A, B, C and D schedule properties are allotted to the plaintiffs jointly.
4. The fair value of the property is Rs.
3,28,61,875/- (Rupees Three Crores twenty-eight lakhs sixty-one thousand eight hundred and seventy-five only).
5. There is no equalization amount to be paid.
6. The commission report Ext. CI and the sketch plan Ext.CI(a) shall form part of the decree. 2
7. The total valuation of the property is Rs.3,28,61,875/- (Rupees Three Crores twenty-eight lakhs sixty-one thousand eight hundred and seventy- five only) and the parties are directed to produce stamp paper accordingly for the purpose of engrossing the final decree on stamp paper.
8. Parties are entitled for the delivery of possession on payment of necessary court fee, if not paid earlier.
9. The cost shall come out of the estate.”
6. As the frontage of suit schedule property was towards south on the Thrissiir – Mannuthy PWD Road, the Trial Court took the view that the property abutting the main road would be high in commercial value and, therefore, the division of property was done in a manner whereby a larger chunk of the commercial area of the property was allotted to the defendant whereas the remaining property was allotted to the plaintiffs who had agreed to remain joint with 3/4th share in the entire property.
7. Aggrieved by the final decree drawn by the Trial Court, the defendant (represented through his heirs), preferred first appeal before the High Court. The High Court found that when there is a direction to divide the property into four equal shares it was not permissible to divide property into two parts by clubbing together three shares out of four as that 3 would virtually defeat the object of the preliminary decree. The High Court also observed that the Trial Court committed a grave mistake by dividing the suit schedule property into three categories i.e. commercial land, garden land and wet land, overlooking the fact that entire property as per revenue records was a paddy field. Accordingly, the High Court set aside the final decree and remanded the matter for a fresh consideration by the Trial Court.
8. Being aggrieved with the order of the High Court, this appeal has been filed.
9. The contention on behalf of the appellants is that the observation of the High Court that three shares could not have been clubbed is at variance with the preliminary decree wherein a specific mention was made that plaintiffs are jointly entitled for 3 such shares. Besides, if plaintiffs having 3/4 th share were willing to obtain a compact area by clubbing their shares, it was not for the Court to force a partition upon them. It has also been submitted that even though the suit schedule property in revenue records may be shown as an agricultural field, the value of the property would vary from one end to the other depending on its location. For example, a 4 portion of the plot located towards commercial area, or having the potential of being commercially exploited, would fetch higher value than the one which is far away from that end. Moreover, the width of the property is only 18.3 meters. Besides, 11 KV Electricity line passes through the length of the plot, therefore, the division of property cannot be made simply by dividing the entire plot into four portions. In such circumstances, the Trial Court’s final decree was not liable to be interfered with as it had partitioned the property by appropriately allocating lots as per their value.
10. Per contra, on behalf of respondents it has been submitted that though there may be an overhead electricity transmission line passing through the length of the plot, the plot is accessible from west also. In such circumstances, allocating only a small southern portion to one share holder and entire remaining area to the other shareholders would be an inequitable distribution of the suit schedule property. In such circumstances, it is submitted, the High Court was justified in setting aside the final decree and remitting the matter to the Trial Court for a fresh consideration.
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11. We have accorded due consideration to the rival submissions and have perused the materials available on record carefully. We may put on record that we had also explored possibility of a settlement between the parties. However, we have been informed that parties could not arrive at a settlement.
12. Upon consideration of submissions and perusal of the materials available on record what transpires is that the southern portion of the suit property is facing a PWD Road (Thrissur - Mannuthi Highway). It is a matter of common knowledge that plots abutting road particularly a Highway may have a much higher commercial value than plots located away from it. Besides, the site plan of suit schedule property would indicate that it is an elongated plot with a frontage of around 18.3 meters. In such circumstances, dividing the entire suit schedule property length wise or depth wise, as it may be called, may pose difficulty as it may result in an unviable strip of land. Therefore, while considering the division of the property, different areas of the plot may have to be assigned different values. Accordingly, the observation of the High Court that the entire property would have to be treated as a paddy field is not correct. Besides 6 above, the observation of the High Court that three shareholders may not be entitled to a compact plot appears in conflict with the preliminary decree which enables a joint allotment to the plaintiffs who have 3/4th share in the suit schedule property.
13. In such view of the matter though we do not propose to interfere with the order of remand passed by the High Court, we deem it appropriate to observe that while according fresh consideration, pursuant to the remand, the Trial Court will not be bound by the observations made in the High Court’s order and shall accord fresh consideration to the rival contentions of the parties, without being prejudiced by any observations made in the remand order passed by the High Court, before passing the final decree.
14. The appeal is disposed of in the aforesaid terms.
15. Pending applications(s), if any, shall stand disposed of.
……………………………………………………………………………J [MANOJ MISRA] ……………………………………………………………………………J [UJJAL BHUYAN] New Delhi April 07, 2026 7 ITEM NO.23 COURT NO.14 SECTION XI-B S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS PETITION FOR SPECIAL LEAVE TO APPEAL (C) NO.21202/2021 [Arising out of impugned final judgment and order dated 17-09-2021 in RFA No. 252/2020 passed by the High Court of Kerala at Ernakulam] SUNIL KUMAR & ORS. Petitioner(s) VERSUS REKHA & ORS. Respondent(s) Date : 07-04-2026 This petition was called on for hearing today.
CORAM : HON'BLE MR. JUSTICE MANOJ MISRA HON'BLE MR. JUSTICE UJJAL BHUYAN For Petitioner(s) :Mr. V Chitambaresh, Sr. Adv.
Mr. K. Rajeev, AOR Mr. C Govind Venugopal, Adv.
Ms. Niveditha R Menon, Adv.
Mr. Aditya Verma, Adv.
Mr. Tarun Kumar, Adv.
For Respondent(s) : Mr. Jogy Scaria, AOR UPON hearing the counsel the Court made the following O R D E R
1. Leave granted.
2. The appeal is disposed of in terms of the signed order which is placed on the file.
3. Pending application(s), if any, shall stand disposed of.
(KAVITA PAHUJA) (SAPNA BANSAL)
ASTT. REGISTRAR-cum-PS COURT MASTER (NSH)
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