TaxTMI 
TaxTMI 
1988 (3) TMI 444
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....__________________ | | | | | Subbiah Pillai Ramalingam Somasundaram Nataraja Kanthi- (died on Pillai Pillai mathinatha 13-5-51) (died) (D-1) (D2) (died) Pillai | (D-5) (2nd Pltff.) | ___________________________ | &nbs....
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....s 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. 5. Thereafter, the present litigation was initiated by the plaintiffs, the first of them being a grandson of the first wife of Palanikumar Pillai, the second being the last son of Palanikumar Pillai by his second wife and the rest being Subbiah Pillai's second wife and her sons. The plaintiffs prayed for partition and separate possession of 91-1/2 cents in item 1 of the I Schedule, 5/12 share in item 2 of the I Schedule and 5/12 share in the II Schedule and 3/8 share of plaintiffs 1 and ....
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....lier 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 allotte....
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.... decided in the appeals was whether the Courts below were right in fixing the value of the l/6th share of the appellant at Rs. 214.28. Obviously, that was wrong as the said sum represented the amount of owelty agreed to between Subbiah Pillai and his brothers in the family arrangement of 1926. That could not represent the value of l/6th share to which the appellant became entitled as one of the heirs of Subbiah Pillai. As regards that 1/6th share, the appellant was definitely entitled to l/6th share of the market value of the house. As that was the only question which remained to be decided in the appeals, I directed learned Counsel on both sides to ascertain from the parties whether they were inclined to settle the matter by fixing the value of the house and giving l/6th thereof to the appellant. The appellant was not agreeable to that course and the matter which came before me originally on 27.1.1983 was being adjourned at the request of parties from time to time and ultimately the hearing was concluded on 23.3.1988. 9. Learned Counsel appearing for the appellants argued the matter fully and submitted that substantial question of law of some importance arise in these appeals a....
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....tion 2 of the Partition Act for a sale of the property and in the absence of such an application, the provisions of the Partition Act could not be invoked. Learned Counsel placed reliance on the decision of Gokulakrishnan, J. in Muthuswami Gounder v. A.P. Kaithamalai Gounder 89 L.W. 652, wherein the learned Judge has followed the ruling of a Division Bench of this Court in O.S.A. No. 108 of 1966 which was affirmed on appeal by the Supreme Court in R. Ramamurthi v. V. Rajeswara Rao . The judgment of the Division Bench does not seem to have been reported, but referred to by Gokulakrishnan, J. in detail. It will be relevant to extract the following passage from the judgment of Gokulakrishnan, J.: Mr. S. Gopalaratnam, the learned Counsel appearing for the petitioner cited the decision reported in V. Rajeswara Rao v. V. Maheswara Rao (Decd.) and Anr. O.S.A. No. 108 of 1966, dt. 21st December, 1970, to support his contention. The principal questions that arose for determination in the said appeal are: (1) whether the Court has an inherent power of sale of the property which is not capable of division apart from the provisions of the Partition Act and whether the plaintiff invoked only....
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.... observation: Learned Counsel for the parties agreed before us that the only question which survives and which requires our decision is whether in the circumstances of the present case the trial Court could allow withdrawal of the suit. Therefore, the question whether the Court had any inherent power outside the provisions of the Partition Act to direct a sale of the property which is not capable of division was not before the Supreme Court in that case. Gokulakrishnan, J. has in his judgment in Muthuswami Gounder v. A.P. Kaithamalai Gounder 89 L.W. 652, observed as follows while referring to this aspect of the matter: The judgment in O.S.A. No. 108 of 1966 was confirmed by the Supreme Court in R. Ramamurthi v. V. Rajeswara Rao . The Supreme Court has also made a specific mention to the effect that the Bench of our High Court considered as to whether the Court has inherent power of sale of the property which is not capable of division apart from the provisions of the Partition Act and whether the plaintiff invoked only such an inherent power and not the power under Section 2 of the aforesaid Act. No doubt the main discussion by the Supreme Court is on the validity of the w....
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.... right on a larger sharer to request the Court to sell the property subject to the correlative right of the smaller sharer to insist upon the larger share being sold to him at the valuation fixed by the Court. The Act was designed only to meet a particular contingency and did not, in any way, affect the power of the Court to make an equitable distribution of the properties. Before the Act; the Court could refuse to sell the property, even if the conditions laid down in Section 3 were fully satisfied. The Court, instead of selling the property, could have allotted the property not capable of equitable division to one of the sharers whether he is a smaller or larger sharer, and direct compensation to be paid to the other. But, after the Act, if the conditions laid down therein, are satisfied, the Court has no option but to direct the sale. Therefore, the power of the Court to sell the property under the different circumstances is consistent with the right of the party to insist upon a sale under specified conditions. When the right under Sections 2 or 3 is exercised, the Court cannot exercise its power in derogation of the right. On the other hand, if the provisions of the Act ....
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....in making an equitable partition of the joint properties either with the consent of the parties or where such consent is not forthcoming in exercise of its own discretion. Whatever method is adopted, it is only to implement the process of equitable partition. It would well-nigh be impossible for a Court to effectuate a partition on an equitable basis, if it should be held that it is under a legal obligation to divide every item of the joint property in specis. Where properties are susceptible of such division, the Court adopts it. Where it is not, it adopts one or other of the alternative methods narrated above. The provisions of the Partition Act do not, in any way, entrench upon the undoubted power of the Court to effectuate a partition between co-owners in one or other of the methods suggested above. Before the Act, a party had no right to insist upon the Court to follow a particular course in the process of partition or to insist upon purchasing the share of the other co-owner under certain circumstances. (24) Under the Act, a right is conferred upon the sharer or sharers, if certain conditions are complied with, to request the Court to sell the property and a correlat....
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.... 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. 18. In support of his contention that an application under Section 2 of the Partition Act is a Sine Qua Non f....
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....pplication in the Court of the District Munsif, Sankarankoil and contending that the plaintiffs had lost their right to apply for final decree in view of dismissal of I.A. No. 146 of 1972 for default. I had also referred to the specific averment in the application for passing of final decree that the house is not divisible and the vague denial in the counter statement field by the appellant. No ground was raised by the appellant before the lower appellate Court questioning the acceptance of the Commissioner's report by the trial Court on this aspect of the matter. I directed learned Counsel for the appellant to cause an affidavit to be filed by his client giving the measurements of the III Schedule house if the measurement's found in the Commissioner's report are erroneous. The appellant has filed an affidavit dated 23.3.1988 in which the measurements of the house are given as follows: On north-east-west: 13-3/4 feet On the south east-west: 13 feet On the West and East North South: 36-1/2 feet. The breadth of the house as reported by the Commissioner is only 12' 6". The difference in the measurements, viz., between the measurements given by the Commissioner an....
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....ned the envelopes and found that the appellant has estimated the market price of the III Schedule property at Rs. 75,000 and expressed his willingness to purchase the rights of the other sharers on the basis of the said market value. Respondents 3 to 7 have offered to purchase the 1/6th share of the appellant in the III Schedule property at Rs. 20,000 payable within a period of two months from 21.3.1988, which was the date on which they had signed their estimate. Thus, I find the estimate made by respondents 3 to 7 is higher than that of the appellant. I accept the value suggested by the respondents and direct them to pay a sum of Rs. 20,000 for the 1/6th share of the appellant in the III Schedule house directly to the appellant or deposit into the trial Court on or before 31.5.1988. The said sum of Rs. 20,000 shall be in addition to the sum of Rs. 749.98 deposited by respondents 3 to 7 pursuant to the direction given by the trial Court by its order dated 9.5.1986. 23. A word of explanation is necessary before concluding this judgment. I adopted the aforesaid course in order to cut short the litigation which is already 21 years old. As I have stated earlier that the only questio....