Kerala High Court
Ruby vs Raju
Author: A.Hariprasad
Bench: A.Hariprasad
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
FRIDAY,THE 15TH DAY OF SEPTEMBER 2017/24TH BHADRA, 1939
OP(C).No. 543 of 2017 (O)
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AGAINST ORDERS DATED 16.01.2017 IN CA NO.81/2016 IN IA NO.4532/2012 IN OS
NO.2017/2003 AND CA NO.79/2016 IN EP NO.259/2010 IN OS NO.2017/2013 OF PRINCIPAL
MUNSIFF'S COURT, IRINJALAKUDA.
PETITIONERS:
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1. RUBY, AGED 72, D/O.KIDANGATH CHAKALAKAL YACOB,
W/O.PAREKADAN MATHEW, VELOOKARAVILLAGE,
MUKUNDAPURAM TALUK.
2. SOSANNAM, AGED 49, W/O.LATE KIDANGATH CHAKALAKAL GEORGE,
MANAVALASSERY VILLAGE, MUKUNDAPURAM TALUK.
3. JAKSON, AGED 27, S/O.GEORGE, KIDANGATH CHAKALAKAL GEORGE,
MANAVALASSERY VILLAGE, MUKUNDAPURAM TALUK.
4. KUNJU ROSE YACOB, AGED 57, W/O.CHERADAYIL THOMAS,
KOTTANELLUR VILLAGE, MUKUNDPURAM TALUK.
5. ANNIE, AGED 62, W/O.KIDANGATH CHAKALAKAL DAVIS,
MANAVALASSERY VILLAGE, MUKUNDAPURAM TALUK.
6. NEENA, AGED 41, D/O.KIDANGATH CHAKALAKAL DAVIS,
MANAVALASSERY VILLAGE, MUKUNDAPURAM TALUK.
7. TEENA, AGED 36, D/O.KIDANGATH CHAKALAKAL DAVIS,
MANAVALASSERY VILLAGE, MUKUNDAPURAM TALUK.
8. NONU, AGED 30, D/O.KIDANGATH CHAKALAKAL DAVIS,
MANAVALASSERY VILLAGE, MUKUNDAPURAM TALUK.
BY ADV. SRI.G.SREEKUMAR (CHELUR)
RESPONDENT:
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RAJU, AGED 78, S/O.KIDANGATH CHAKALAKAL YACOB,
MANAVALASSERY VILLAGE, MUKUNDAPURAM TALUK. 680001
BY ADVS. SRI.MURALI PURUSHOTHAMAN
SRI.DEEPU LAL MOHAN
THIS OP (CIVIL) HAVING BEEN FINALLYHEARD ON 22.08.2017, THE COURT ON
15.09.2017 DELIVERED THE FOLLOWING:
OP(C).No. 543 of 2017 (O)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1- A TRUE COPY OF THE JUDGMENT IN R.S.A.NO.810 OF 2011 DATED
22/12/2015 OF THIS HON'BLE COURT.
EXHIBIT P2- A TRUE COPY OF THE I.A.NO.2851 OF 2012 IN R.S.A.NO.810 OF 2011 ON THE
FILE OF THIS HON'BLE COURT DATED 06/11/2012.
EXHIBIT P3- A TRUE COPY OF THE ORDER PASSED IN C.A.NO.81 OF 2016 IN I.A.NO.4532
OF 2012 IN O.S.NO.2017 OF 03 DATED 16/01/2017 ON THE FILE OF THE PRINCIPAL
MUNSIFF COURT,IRINJALAKUDA.
EXHIBIT P4- A TRUE COPY OF THE ORDER PASSED IN C.A.NO.79 OF 2016 IN E.P.NO.259
OF 2010 IN O.S.NO.2017 OF 03 DATED 16/01/2017 ON THE FILE OF THE PRINCIPAL
MUNSIFF COURT,IRINJALAKUDA.
RESPONDENT(S)' EXHIBITS
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EXT.R1(a) THE PHOTOCOPY OF ORDER DATED 16.11.2012 OF THIS COURT IN IA
NO.2851/2012 IN RSA NO.810/2011
EXT.R1(b) THE PHOTOCOPY OF IA NO.4532/2002 IN OS NO.2017/2003 ON THE FILES OF
THE PRINCIPLAL MUNSIFF COURT,IRINJALAKUDA
EXT.R1(c) THE PHOTOCOPYOF ORDER DATED 20.03.2013 OF THE PRINCIPAL MUNSIFF
COURT, IRINJALAKUDA IN IA NO.4532/2012 IN OS NO.2017/2003
EXT.R1(d) THE PHOTOCOPY OF CA NO.79/2016 IN EP NO.259/2010 IN OS NO.2017/2003
BEFORE THE PRINCIPAL MUNSIFF COURT,IRINJALAKUDA
EXT.R1(e) THE PHOTOCOPY OF OBJECTION DATED 03.12.2016 FILED BY THE
RESPONDENT IN CA NO.79/2016 IN EP NO.259/2010 IN OS NO.2017/2003 BEFORE THE
PRINCIPAL MUNSIFF'S COURT, IRINJALAKUDA
EXT.R1(f) THE PHOTOCOPY OF CA NO.81/2016 IN IA NO.4532/2012 IN OS NO.2017/2003
BEFORE THE PRINCIPAL MUNSIFF COURT,IRINJALAKUDA
EXT.R1(g) THE PHOTOCOPY OF CA NO.119/2017 IN IA NO.4532/2012 IN OS NO.2017/2003
BEFORE THE PRINCIPAL MUNSIFF COURT,IRINJALAKUDA
////TRUE COPY////
C.R.
A.HARIPRASAD, J.
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O.P.(C) No.543 of 2017
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Dated this the 15th day of September, 2017
JUDGMENT
Petitioners 1 and 4 to 8, deceased George (the predecessor- in-interest of petitioners 2 and 3) and the respondent jointly filed a suit for partition. The suit property is having an extent of 19.750 cents. The plaintiffs claimed 5/6 shares and the defendants claimed 1/6 share. A preliminary decree was passed on 20.10.2004 directing to divide the property and allot 5/6 shares to the plaintiffs and 1/6 share to the defendants. Thereafter I.A.No.892 of 2005 was filed by the plaintiffs for passing a final decree. The advocate commissioner appointed reported that division of the property by metes and bounds was impossible and he suggested to auction the plaint schedule property among the sharers.
2. Thereafter the plaintiffs, except the 1st petitioner herein, filed an application as I.A.No.4092 of 2008 seeking auction of the plaint schedule property. Later, on 16.07.2009, on consensus of the parties, the OP(C) No.543 of 2017 2 trial court fixed the upset price of the plaint schedule property at `13,00,000/-. On 30.07.2009 the auction was conducted and the respondent bid the auction for a price of `24,90,000/-. On 30.07.2009 itself the respondent deposited `6,22,500/-, that being < of `24,90,000/-. Thereafter on 31.07.2009, the trial court confirmed auction of the plaint schedule property in the respondent's name. On 10.08.2009, he deposited a further amount of `14,52,500/-, that being the balance amount after deducting his 1/6 share in `24,90,000/-.
3. Immediately thereafter the defendants in the suit filed a cheque application before the court seeking permission to withdraw their 1/6 share in the bid amount. As per the order dated 22.08.2009, the trial court ordered to issue a cheque for `4,15,000/- in favour of the defendants and they withdrew the amount. Thus from the total bid amount deposited by the respondent, balance `16,60,000/- remained in deposit in the Sub Treasury, Irinjalakuda.
4. Subsequently on 10.09.2009, the trial court passed a final decree holding that the plaint schedule property had been bid in auction by the respondent for the above said amount and the auction had been confirmed in his name. Further, the trial court directed the sharers to deposit value of the non-judicial stamp paper for engrossing the final decree.
OP(C) No.543 of 2017 3
5. As directed, the respondent remitted a further amount of `1,30,750/-, being the value of non-judicial stamp paper for engrossing the final decree and it was engrossed on stamp paper. Then the respondent filed execution petition (E.P.No.259 of 2010) against said George seeking delivery of the plaint schedule property. While so, George filed an appeal (A.S.No.5 of 2010) before the Principal Sub Court, Irinjalakuda challenging the final decree order. Despite service of notice on all the parties, no one, except the respondent, entered appearance in the appeal and contested. Meanwhile, separate applications were filed on 07.04.2010 by petitioners 1, 4 and 5 to 8 seeking permission to withdraw their 1/6 share in `24,90,000/- after deducting their contribution towards the value of stamp paper produced for engrossing the final decree. Then, on 28.06.2010, they themselves got the cheque applications dismissed as not pressed.
6. As per judgment dated 31.03.2011, the first appellate court dismissed the appeal filed by George. Thereafter, he filed a regular second appeal (R.S.A.No.810 of 2011) before this Court. On 21.07.2011 this Court admitted the second appeal and passed an interim order staying all further proceedings pursuant to the final decree. In the second appeal also the respondent alone contested.
7. Despite elapse of more than three years after deposit of `20,75,000/- by the respondent before the court below, the final decree did OP(C) No.543 of 2017 4 not attain finality and the amount was lying in civil court deposit without fetching interest. Therefore, the respondent, anticipating that there might be further delay in the final disposal of the second appeal, filed Ext.P2 application before this Court and sought permission to transfer the bid amount of `16,60,000/-, lying in deposit in the Sub Treasury, Irinjalakuda, to a bank, so that the amount would earn interest. It is the case of the respondent that Ext.P2 application was filed solely with a view to protect his interest at that stage. As per order dated 16.11.2012, this Court closed Ext.P2 application making an observation that the respondent could move the trial court seeking appropriate reliefs. That order is Ext.R1(a). Thereafter the respondent approached the court below with Ext.R1(b) and sought a direction to transfer the amount to a Co-operative bank. Court below allowed the prayer as per Ext.R1(c) order.
8. As per Ext.P1 judgment, this Court dismissed the second appeal filed by deceased George. Thereafter, the petitioners 2 and 3 preferred a Special Leave Petition (Civil) No.3984 of 2016 before the Supreme Court and the same was also dismissed on 15.02.2016. Only on 24.02.2016, when the final decree order became absolute, the respondent could take delivery of the property. Till then, the petitioners were enjoying the property. Respondent raised a complaint that while issuing cheque for `4,15,000/- in favour of the defendants in the suit, the trial court omitted to OP(C) No.543 of 2017 5 deduct `17,291/-, which the defendants were liable to pay as value of their 1/6 share in the non-judicial stamp paper spent for engrossing the final decree. Therefore, the respondent filed an application before the court below seeking a direction to the defendants to deposit `17,291/- and the same was allowed.
9. Subsequently the petitioners filed applications seeking issuance of cheques in their names for the entire amount of `22,07,061/- which was lying in fixed deposit in the bank. Ext.R1(d) is the application. It is the case of the respondent that deceased George, the predecessor-in- interest of petitioners 2 and 3, had not chosen to accept the final decree and he took the matter upto Supreme Court. Therefore, insofar as petitioners 2 and 3 are concerned, the legal right to withdraw 1/6th share in the amount of `16,60,000/-, deposited by the respondent, accrued to them only after dismissal of the Special Leave Petition before the Supreme Court. Therefore they are not entitled to claim any interest accrued to `16,60,000/- deposited by the respondent.
10. When they applied for cheque before the trial court, the respondent raised serious objections. Further, the respondent also filed an application for issuance of cheque for `6,16,225/-. Both the applications were considered by the court below and as per Exts.P3 and P4 orders, both the applications were dismissed directing the parties to file fresh OP(C) No.543 of 2017 6 applications showing correct amounts.
11. Petitioners contended that the court below seriously erred in finding that the respondent is entitled to claim interest accrued to the deposit. According to the petitioners, the court below should have seen that they are entitled to the amount in deposit, including the accrued interest, and once the successful bidder had deposited the amount, he thereafter could have no say in the matter and therefore everything attached to that amount should go to the person entitled to the amount. Merely because the respondent moved an application for transferring the amount to a bank, he cannot claim interest accrued to the deposit. On these grounds the petitioners challenged Exts.P3 and P4 orders.
12. Heard the learned counsel for the petitioners and the respondent.
13. Learned counsel for the petitioners contended that the orders impugned in this case are legally unsustainable for various reasons. According to him, once the auction purchaser deposited money pursuant to a bid in his favour, he could not claim any right over money so deposited and further any accretion to it would enure to the benefit of the person entitled to it. In this case, though the final decree was challenged in various forums, ultimately it was confirmed. It is therefore contended that the respondent could not have laid any claim over money in deposit after OP(C) No.543 of 2017 7 making the deposit pursuant to the auction sale and therefore his claim for interest accrued to it is unsustainable.
14. Per contra, learned counsel for the respondent contended that until the matter was finally disposed by the Supreme Court on 15.02.2016 and until he obtained delivery of possession on 24.02.2016, it cannot be said that he had obtained title to the property. Entitlement to amount deposited by the respondent will be lost only on passing title over the property to him. It is the further contention that some of the petitioners were residing in a building in the property and enjoying the same without sharing any profit for a long period.
15. The fundamental question to be answered is what is the point of time the respondent obtained title to the property pursuant to an auction sale among the sharers. When the final decree order is put to challenge by some of the parties?
16. Where any property is capable of being partitioned by metes and bounds without destroying its intrinsic value, the courts are bound to divide it as above. But for umpteen reasons many properties may not reasonably or conveniently be divided by metes and bounds. In such circumstances, courts some times take recourse to the device of selling the property and distributing money amongst the co-owners according to their share.
OP(C) No.543 of 2017 8
17. There is a line of thinking that the court has no power to order sale of the properties, which are subject matters of a partition suit, apart from the provisions of the Partition Act, 1893. But, having regard to Rule 234 of the Civil Rules of Practice, Kerala in Anthony Ammal v. Antony (AIR 1984 Ker. 38) it has been held that apart from the provisions in Section 2 of the Partition Act, 1893, for a just and equitable partition, the court can direct the property to be sold among the sharers. To hold so, reliance had been placed on Badri Narain Prasad Choudhary v. Nil Ratan Sarkar (AIR 1978 SC 845).
18. Rule 234 of the Civil Rules of Practice, Kerala reads thus:
"234. Order for sale.-(1) When it is ordered in a partition suit that any property may be sold and proceeds divided, persons other than the co-owners shall not be permitted to bid in the sale, unless it appears to the Court that it is just and expedient to order otherwise.
(2) The sale when the bid is not open to strangers shall be held in open Court on a day to which the case is adjourned for the purpose. The highest bid shall be accepted and the sale confirmed at once unless the sale is adjourned to some other date.
(3) The co-sharer purchasing at the sale shall not ordinarily be obliged, to deposit the sale OP(C) No.543 of 2017 9 price in Court at once and the amount may be debited against him in the final adjustment of accounts in the case if the value of his share in the entire assets will be sufficient to cover the sale price. The Court shall record in the proceedings the date and time of sale, the amounts of the several bids, the name of the purchaser and whether the sale price has been deposited or allowed to be retained for future adjustment. The property so purchased shall be allotted in the final decree to the share of the purchaser at the value of the bid confirmed and accepted by the Court.
(4) If any such purchaser on being so ordered, fails to deposit the sale price within the time allowed by the Court, the property shall be resold at his risk and the loss, if any, resulting from the resale together with the costs of the adjourned sale may be realised from him or debited against his share.
(5) Where the Court considers that the interests of the parties will be better served by ordering a sale, open for the bid of the general public, the Court may appoint an auctioneer and shall fix his remuneration for the purpose, and may give the necessary directions relating to the place, time and manner of publication and conduct of the sale and shall direct any of the parties to deposit in Court any sum required for the publication and OP(C) No.543 of 2017 10 conduct of the sale. Properties or assets sold by the Court in the course of a partition suit shall be delivered over to the purchaser with the documents of title. The Court may also direct the co-sharers or the Receiver to execute a deed of conveyance to the purchaser at his cost and may, if necessary, appoint a Receiver for the purpose."
Rule 235 is a general provision dealing with the particulars to be contained in a final decree.
19. Learned counsel for the respondent relied on certain decisions rendered by the apex Court and this Court in the context of Order XXI Rules 90 and 92 of the Code of Civil Procedure, 1908 (in short, "CPC"). Statement that the principles relating to execution sale, envisaged in Order XXI CPC, may not be applicable to an auction sale between the sharers in a partition suit is indisputable. It is to be borne in mind that the principles of equity govern the sales among sharers in a partition suit, as the equitable principles have paramount relevance in the final decree proceedings in all partition suits, whether it be a division by metes and bounds or a sale of property by auction between the sharers or by a public auction. Substantive rights of the parties going for a sale among the sharers emanate from the common law principles, with a special thrust on the principles of equity, which is reflected in Rule 234 of the Civil Rules of OP(C) No.543 of 2017 11 Practice. The rights and procedures thereof are prescribed in Rule 234 of the Civil Rules of Practice.
20. Nevertheless, I shall deal with the decisions cited at Bar.
21. Learned counsel for the respondent relying on the decision in Pattam Khader Khan v. Pattam Sardar Khan and another ((1996) 5 SCC 48) contended that a court sale being a compulsory sale, conducted by or under the orders of court, title to the property sold does not vest in the purchaser immediately on the sale thereof unlike in the case of a private sale. Referring to various provisions like Order XXI Rules 89, 90 and 92 and also Section 65 CPC, Supreme Court held thus:
".........It is therefore becomes clear that the title of the court auction-purchaser becomes complete on the confirmation of the sale under Order 21 Rule 92, and by virtue of the thrust of Section 65 CPC, the property vests in the purchaser from the date of sale; the certificate of sale, by itself, not creating any title but merely evidence thereof. ..........."
The above principles enunciated in the context of a court sale in execution of a decree cannot be applied with full vigour to an auction sale in a partition suit.
22. A Division Bench of this Court in Raphael v. Alice Jose (2000 OP(C) No.543 of 2017 12 (3) KLT 769) has observed that sale in execution of a decree becomes absolute on its confirmation subject to any order to be made in an appeal. As stated above, it is a basic principle that while dealing with a final decree application, the courts are bound to decide it in accordance with equitable principles. It should be borne in mind that the parties to a partition suit are sharers having interest over the property. Unlike in other cases, separation of parties as the plaintiff and defendant is insignificant in such suits.
23. A learned Single Judge in Unnimadhavan v. Rugmini Pallikkaramma (1980 KLT 892) rightly held that Section 2 of the Partition Act contemplates a public sale and not one limited to the sharers. Again, a sale under Section 2 of the Partition Act, 1893 could only be on the request of persons interested atleast in a moiety of the shares. It has been unequivocally stated in Unnimadhavan's case that the Rules in Order XXI CPC for sales in execution of decrees are not applicable to sales made in pursuance of an order of court under the Partition Act, 1893.
24. A learned Single Judge of this Court in Antony v. Joseph (2010 (3) KLT 140) had occasion to consider the various provisions under the Partition Act, Order XXI Rule 90 CPC and Rule 234 of the Civil Rules of Practice. It is held that an application under Order XXI Rule 90 CPC is not maintainable for setting aside a sale of immovable property held in final OP(C) No.543 of 2017 13 decree for partition as it is not a sale in execution of a decree or order. It has been reiterated that the provisions in Order XXI CPC would not apply to a sale held under Rule 234 of the Civil Rules of Practice. Restoring to Section 151 CPC, the court can exercise power to set aside an auction sale among the sharers, if the sale was vitiated by fraud, collusion, etc. It is further held that the Partition Act, 1893 does not create a fetter on the courts' power to adopt any reasonable or equitable method of division of property.
25. It is a settled view that when a decree is put to challenge in an appeal, its existence is put to jeopardy. Although mere filing of an appeal may not operate as a stay of the decree, but its correctness will be subjected to scrutiny by a higher court. Another decision relevant in this context under Order XXI Rule 95 CPC is United Finance Corporation v. Haneefa (2017 (1) KLT 500). It lays down inter alia a proposition that sale cannot become absolute till the proceeding challenging it is pending. The general principle that an appeal will have the effect of questioning the sustainability of the decree cannot be ignored.
26. Upshot of the discussion is that sale of property among the sharers in this case was not held in terms of the Partition Act, 1893 and it cannot be equated to a sale in execution of a decree. The basic principles of equity are applicable in such sales. As pointed out earlier, even in a OP(C) No.543 of 2017 14 normal suit for partition, seeking division of properties by metes and bounds, the equitable principles are to be strictly adhered to in making allotment of shares in a final decree. Instead of dividing the property by metes and bounds, what is divided herein is the worth of the property in terms of money. Still, the equitable principles rule the field.
27. Reverting back to the question whether the petitioners are entitled to claim interest accrued to the share amount deposited, it has to be found that their claim is legally unacceptable. As mentioned earlier, the property was delivered to the respondent only on 24.02.2016. Till then, uncertainty prevailed over the decree and by no stretch of reasoning it can be held that the respondent obtained title to the property before dismissal of the Special Leave Petition by the Supreme Court. It is axiomatic that there cannot be a period wherein the respondent loses title to the amount deposited and he does not acquire title to the property. Both will have to happen simultaneously. Viewing from that angle, I am of the view that the respondent can be said to have lost title to the amount deposited only on acquiring title to the immovable property. This happened only after dismissal of the Special Leave Petition by the Supreme Court. In this case, the respondent has a further contention that the petitioners are in possession of the property and some of them are residing in the house situated therein. It is to be remembered that in equity the respondent will be OP(C) No.543 of 2017 15 entitled to claim share of profits, from the persons in possession of the property, till he gets actual delivery. That also is an indicator to hold that the petitioners are not entitled to get interest accrued to the amount deposited.
28. Learned counsel for the respondent relying on a decision rendered by a Division Bench of this Court in R.D.O., Fort Kochi v. Kurian (2005 (2) KLT 863) contended that the principles enunciated therein can be applied to the set of facts in this case. On a reading of the decision, it can be seen that the question posed for determination is whether interest accrued to the deposit made by the State in a land acquisition proceeding would enure to the benefit of the claimant. The observation made in the judgment reads thus:
"The only question to be considered is as to whether the petitioner is entitled to get the interest accrued for the amount deposited by the State in the nationalised bank. Learned Senior Government Pleader Sri.Mohan C.Menon submitted that the State has paid the entire amount due to the claimant calculating 30% solatium and the legitimate interest as provided under the Land Acquisition Act. Counsel submitted claimants are claiming interest over and above the interest prescribed under the Land Acquisition Act. OP(C) No.543 of 2017 16
Counsel appearing for the writ petitioner Sri.V.Ramachandran on the other hand, contended that since amount has been deposited in a nationalised bank on a direction given by this Court in the land acquisition appeal he is entitled to get interest on the amount as well. We have already narrated the circumstances under which the amount was deposited in the nationalised bank. It is not a deposit as contemplated under O.XXI R.1 which refers to modes of paying money under a decree. ..........."
29. Although the said ratio may not be directly applied to the facts and circumstances in this case, the principles therein can be applied on equitable grounds.
30. Learned counsel relying on Rule 234 (2) of the Civil Rules of Practice argued that in an auction sale the highest bid shall be accepted and the sale shall be confirmed at once. It is therefore contended that there is an immediate vestiture of title to property in the respondent. Hence, thereafter, he must be presumed to have disassociated himself from the deposit amount. It is also argued that the bidder is not obliged to deposit the sale price in court at once. This can be seen from Rule 234(3) of the Civil Rules of Practice. Having voluntarily deposited the amount, the respondent cannot claim right over it. I am afraid, these arguments are OP(C) No.543 of 2017 17 unacceptable. What is visualized in Rule 234 of the Civil Rules of Practice is an auction sale between the sharers conducted on consensus and no challenge against the final decree to be passed thereafter is contemplated by the Rule. Mere confirmation of a sale, as in the case of a sale in execution of a decree, may not be sufficient to pass title to the bidder. It should get the imprimatur of the court in the form of an order in the final decree proceedings. That has to be engrossed on a stamp paper, which would evidence title of the parties to the proceedings. Hence, simply because the bid was confirmed, the bidder in such a case would not get title to the property. It is all the more so in a case where the final decree itself was challenged before higher forums. Just because the respondent promptly deposited the sale price, he should not be deprived of his valuable right in respect of money deposited until he got title to the property.
31. According to the learned counsel, in a case where immovable properties were allotted to various sharers in a final decree and if some of the parties had gone for a legal battle in various forums spending considerable time and ultimately if the final decree order is confirmed by the highest court, then the parties could take the property having a higher value earned by efflux of time. It is the further contention that in this case instead of land, its worth in terms of money had been divided. So, the OP(C) No.543 of 2017 18 sharer in whose favour it was deposited should be entitled to get the interest accrued. This contention is fallacious. First of all, there is no rule that in all cases there will be appreciation of value of the property. Whether value of the property is appreciated or depreciated, the sharer to whom it is allotted will have to be satisfied with it. Likewise, value of each share in this case too was fixed by the final decree. Each sharer will have to be satisfied with the value of his share as determined by the final decree. Moreover, in this case the deposit in court was shifted to a bank at the instance of the respondent while he retained ownership over the amount and it was intended to protect his interest, as there was uncertainty prevailed over the final decree. For this reason also, the petitioners are not entitled to the interest accumulated to the deposit.
32. Having regard to the facts and circumstances, I am of the view that the contentions raised by the petitioners against the impugned orders are unsustainable. Had it been a case of division of property by metes and bounds, the petitioners should have been contented with what they were provided for by the allotment. Likewise, the petitioners' entitlement is only to get the share amount in the sale proceeds and any accretion thereto should go to the respondent since his liability was only to pay the share value.
I find no reason to interfere with the impugned orders. The OP(C) No.543 of 2017 19 original petition is found to be devoid of merits. Hence it is dismissed.
A. HARIPRASAD, JUDGE.
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