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4. Continuing the narrative, the III Schedule was allotted to Subbiah on condition that he should pay a sum of Rs. 214 to each of the other six sons of Palanikumar Pillai by way of owelty on the footing that the value of the III Schedule property which is a small house with some appurtenant land was Rs. 1,500. There was a partition arrangement under a deed dated 26.10.1942 between Subbiah Pillai and his sons by the second wife on the one hand and the appellant herein on the other with reference to the properties allotted to Subbiah Pillai in the compromise decree in O.S. No. 50 of 1925. The present suit properties were not subject-matter of that partition as Ponnammal was alive. Subbiah Pillai died in 1951 and Ponnammal died on 17.8.1966.

3 to 7 and provide for owelty to the appellant herein. In that application there was a specific reference to an earlier report of the Commissioner dated 27.1.1975 to the effect that the house was not divisible. The plaintiffs also claimed in that application that they had complied with the direction in the in the decree for payment of Rs. 214.28 to the first plaintiff and others. In his counter statement the appellant herein contended that the application was not maintainable in that Court and that it should be filed only in the Sub Court, Tirunelveli. Another contention raised was that the earlier petition for final decree having been dismissed for default on 6.8.1975, the plaintiffs were not entitled to file a fresh application. As regards the divisibility of the house, in paragraph 5 of the counter statement, the appellant contended that the house should not be allotted to the applicants and their case that he should be given owelty was not acceptable. While there is a specific reference in the application for final decree to the earlier report of the Commissioner as regards the non-divisibility of the house, the counter-statement filed by the appellant keeps silent on that aspect. Nor did the appellant make a positive statement that the house was capable of division. The averments made by him in his counter statement on this aspect of the matter are very vague.

7. The trial Judge passed an order on 9.5.1986 allotting the house in III Schedule to plaintiffs 3 to 7 and directing them to pay a sum of Rs. 749-98 as owelty to the appellant herein. The amount of owelty was calculated by the trial Court at the rate of Rs. 214-28 for l/7th share as fixed in the family arrangement of 1926, The trial Court found that the house was not divisible and that it should be allotted only to persons who are enjoying the adjacent house bearing door No. 4. The trial Court found that the very reason for allotting the III Schedule house exclusively to Subbiah Filial in the partition arrangement of 1926 was that he could not conveniently enjoy the adjacent house bearing door No. 4 which had already been allotted to him without the III Schedule house and the adjacent house bearing Door No. 4 was in the enjoyment of plaintiffs 3 to 7 after the death of Subbiah Pillai. As regards the third item of I Schedule, the mode of division suggested by the Commissioner allotting 52 cents to plaintiffs 3 to 7 was accepted by the trial Court. Pursuant to the said order, of the trial Court, plaintiffs 3 to 7 deposited a sum of Rs. 749-98. In view of the same, the trial Court passed a decree on 30.9.1986 allotting 52 cents in item 3 of Schedules I and III Schedule property to plaintiffs 3 to 7. The appellant herein filed an appeal against the earlier order of the trial Court dated 9.5.1986 which was taken on file as A.S. No. 25 of 1987 on the file of Sub Court, Tenkasi and another appeal against the later order dated 30.9.1986 which was taken on file as A.S. No. 158 of 1986 on the file of the same Court. Obviously, the appeal against the later order was filed earlier as the number of the appeal indicates. Both the appeals were disposed of by the Subordinate Judge, Tenkasi on 21.12.1987 by two different judgments. The only point urged in the appeal against the earlier order of the trial Court related to the maintainability of the application for passing of final decree. The learned Subordinate Judge found that the application was maintainable and dismissed the appeal. In the other appeal, the contest related to the correctness of the order of allotment made by the trial Court. The learned Suborodinate Judge found that there was no material before him to interfere with the allotment made by the trial Courts. Consequently, that appeal was also dismissed.

17. Section 2 of the Partition Act would normally come into play when the entire suit property cannot reasonably or conveniently be divided and a sale of the property and distribution of the proceeds would be more beneficial for all the shareholders. Section 2 does not contemplate a case where some of the suit properties are not divisible by nature. If there are several items of suit properties, such item which is not divisible could be allotted to one sharer exclusively and the value thereof could be taken into account as against the allotment of the other properties to the other sharers and the value of the respective shares could be equalised by owelty. There is, however, no bar to the parties against invoking the provisions of Section 2 of the Partition Act with reference to one or more of the suit properties which are found to be not divisible while accepting the division of the properties which could be divided. It is not necessary to discuss this question any further in this case. As I have held earlier that what all has been done by the Courts below is to allot some portions of the properties to respondents 3 to 7 and some portions to the appellant and equalize the respective shares by direction to pay owelty.