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Amit Raut V. Kanhai Rout and 30 Ors.

Second Appeal No. 17 of 2001 . 23-01-2004

 Bench Citation Advocates


P.K. Balasubramanium

C.J.

JUDGMENT

P.K. Balasubramanyan, C.J.

1. This Second Appeal by the plaintiff challenges the final decree for partition. The

plaintiff in terms of preliminary decree was entitled to one out of six shares. In the final

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 decree certain properties were proposed to be allotted to him by Amin Commissioner.

The plaintiff objected to the proposal made by the Amin Commissioner by contending

that there has been no proper valuation of the shares and the allotments were

inequitable, that the whole of the prime lands available for partition having commercial
importance, were allotted to defendant Nos. 4 to 7 alone and that the division proposed

was unjust and against the fundamental principle, that the properties should be valued

and each sharer should be allotted properties of equal value. The Trial Court did not
accept this contention and proceeded on the basis that the lands were non-transferable

and therefore, their potential value was irrelevant and allotment was just. Thus, a final

decree was passed.

2. The plaintiff challenged the final decree in an appeal. It was argued on behalf of the

plaintiff that without valuing the properties and the shares at least notionally, there

could be no equitable division in terms of the preliminary decree. It was also pointed
that the allotment was unjust as a piece of land without access was allotted to the

plaintiff. The lower appellate Court noticed these infirmities but, took the view that the

lands were not transferable and their commercial potentiality was irrelevant. It brushed

aside the argument based on the need to value the shares and equalise them and
proceeded to value the shares by taking the view that the value was statutorily fixed by

the Santhal Civil Rules and hence, the question of valuation was not relevant. It

proceeded to say that if the properties consisted of such lands, they had to be divided

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 one way or the other and the appellant cannot make a grievance that the allotment was

unequal. Thus, the appeal was dismissed.

3. This Second Appeal has been filed by the plaintiff seeking to raise the substantial

questions of law : "Whether the acceptance of the proposal of the Amin Commissioner
without following the fundamental principle of a property division was legal and whether

the appellate Court was justified in brushing aside the objection to the division of

property by the Amin Commissioner?" The question of inequality in the division, now

accepted, has also been raised.

4. Learned Counsel for the appellant-plaintiff referred to the decision of the Supreme

Court in M.L. Subbaraya Setty v. M.L. Nagappa Setty . He contended that valuing the
properties and the different shares was the fundamental step to be taken while effecting

a partition by metes and bounds and the same not having been done by the Amin

Commissioner, the Courts below substantially erred in law in accepting the division

proposed by the Amin Commissioner. Counsel further contended that whatever

advantages or disadvantages were there in the properties, they were to be shared

equally by the sharers and it was totally unjust and inequitable to say that even if a

property having no access was allotted to a co-sharer exclusively, he could not object to
the same. Thus, it was submitted that the decree now passed was inequitable, unjust

and enough to shock the conscience of the Court to warrant interfere with the final

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 decree.

5. Learned counsel for the contesting respondents, on the other hand, submitted that

the division was fair and reasonable and the Courts were justified in accepting the

division. The claim laid by the plaintiff to plot No. 75 was rightly rejected in view of the

fact that a portion of the plot had been assigned away by the defendants and the

defendants were in occupation of the rest of the property and the plaintiff cannot insist

that he should also get a portion of that property wherein the defendants had put up
their buildings. Counsel also contended that the commercial value of the piece of land

was not important since the value was covered by the Santhal Civil Rules and relied on a

decision of the Patna High Court to point out that the potential value of the land need

not to be taken note of. He thus, submitted that there was no reason to interfere and it

could not be said that any substantial error of law has been committed by the Courts.

6. Normally, in an appeal against a final decree, the second appellant Court is reluctant
to interfere. Firstly, in most of the cases where the question is only one of allotment of

one property or another to the sharers no question of law would arise out of the claim

for allotment justifying interference. Secondly, most of the suits for partition are of

ancient vintage and any interference in second appeal would tend to prolong the

litigation in Court and keep the litigants out of the fruits of the decree. Even bearing

these aspects in mind, I find that when a Court passes a final decree without valuing the

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 lands notionally for the purpose of effecting a division and proceeds to make allotment

of shares without ensuring whether the shares intended to be allotted are equal in terms

of value and commensurate with the share a sharer is entitled to in terms of the

preliminary decree, it necessarily means that a fundamental error has been committed

in the matter of passing a final decree. The decision of the Supreme Court referred to by

counsel also indicates that valuing the property while making allotment of shares

consistent with the valuation is the prime approach to be made to any final division of

property pursuant to a preliminary decree. May be, that a particular item, in equity, may
not be available for allotment to one of the claimants. Even then, the sharers are

entitled to have allotted properties of equal value, elsewhere, or to be compensated in

terms of money for equalization of shares. The concept of owelty is not unknown to suits

for partition. Similarly, in a case like the present where properties have advantages and

disadvantages, necessarily, the sharers have to share that advantage or disadvantage.

It is incorrect to postulate that the disadvantage must be shouldered by only one of the

sharers to the exclusion of the others; even though the compensation for the

disadvantage can be in terms of money. Therefore, the finding of the appellate Court

that the allotment of property without road frontage or not having equal advantages

cannot be held to be unjust can be sustained. In this situation, I am satisfied that a

substantial error of law has been committed by Courts below in passing the final decree

without insisting of the Amin Commissioner valuing the entire properties and valuing the

individual shares and making allotments of shares, equal in value. I am therefore,

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 constrained to interfere with the final decree now passed.

7. Thus, holding that the lower appellate Court has committed a substantial error of law

since it has gone against the fundamental principles of passing a final decree in a suit

for partition, I allow this Second appeal, set aside the judgments and decrees of the

Courts below and remand the suit to the Trial Court for passing of a fresh final decree in

terms of the preliminary decree. The Trial Court will direct the Amin Commissioner to

value the entire properties and ensure allotment of properties to the different sharers

equal in value and in terms of the preliminary decree. The Trial Court will also direct the

Amin Commissioner to ensure that all the sharers have the benefit of the disadvantages

or advantages equally while dividing the properties. The parties are directed to appeal
to appear before the Trial Court pursuant to this order of remand on 6.4.2004.

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