AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
1988 (3) TMI 444
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....Pillai Ramalingam Somasundaram Nataraja Kanthi- (died on Pillai Pillai mathinatha 13-5-51) (died) (D-1) (D2) (died) Pillai | (D-5) (2nd Pltff.) | ___________________________ | | M. Seethaiammal M. Rajammal alias Palliarai 1st wife (2nd wife) (died) (7th plaintiff) | | | ____________________________________________ | | | | | V.S. Palani Palani Kumara- Sivasubra- Ponnambalam Chockalingam Kumar swami maniam (5th plff.) (6th plff.) Pillai (3rd plff.) (4th plff.) (6th deft./ Applicant 3. There was an earlier litigation in the family in O.S. No. 50 of 1925 which ended in a compromise decree whereby Palanikumar Pillai and his seven sons divided their joint family properties. After the death of Palanikumar Pillai, there was a family arrangement on 2.1.1926 under which his second wife Ponnammal was to enjoy the properties described in Schedules I and III in the present suit for her life. It was also agreed that after her lifetime, the 1st Schedule was to be taken absolutely by the seven sons of Palanikumar Pillai and the III Schedule was to be taken exclusively by Subbiah Pillai, the eldest son of Ponnammal. While the appellant is the son of Subbiah by his first wife, resp....
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....his Court and by judgment dated 23.8.1973, this Court held that there was no relinquishment by the appellant of his 1/6th share in the III Schedule property. As per the judgment of this Court, the appellant was declared entitled to 1/42 share in Schedule I and 1/6 share in Schedule III. 6. The plaintiffs filed I.A. No. 146 of 1972 on the file of Sub Court, Tirunelveli for passing a final decree even while the Second Appeal was pending in this Court. That application was dismissed for default on 6.8.1975. Thereafter, the suit was transferred to the file of the District Munsif, Sankarankoil and numbered as O.S. No. 153 of 1982. The plaintiffs filed I.A. No. 745 of 1982 for passing of final decree. With regard to the III Schedule house, their prayer in the application for passing a final decree was to allot the house entirely to plaintiffs 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 ₹ 214.2....
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.... 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. 8. Second Appeal No. 81 of 1988 is against A.S. No. 158 of 1986 and Second Appeal No. 188 of 1988 is against A.S. No. 25 of 1987. When the appeals ....
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....ecree of this Court in S.A. No. 854 of 1971. There is no substance whatever in this contention. 10. It is no doubt true that in the suit respondents 3 to 7 herein claimed to be exclusively entitled to the III Schedule house and this Court by its judgment in S.A. No. 854 of 1971 negatived that claim and held that the appellant was entitled to l/6th share. This Court only declared the l/6th share of the appellant herein. That cannot be construed as a direction by this Court to divide the III Schedule properties by metes and bounds and allot 5/6th share to respondents 3 to 7 and 1/6th share to the appellant herein. The question whether the house was divisible or not did not at all come up for consideration before this Court in that second appeal and that was a matter which could and should be decided only in the final decree proceedings. The final decree passed by the trial Court and affirmed by the appellate Court cannot in any sense be said to be contrary to the judgment and decree of this Court in S.A. No. 854 of 1971. 11. The next contention advanced by learned Counsel for the appellant is that the direction contained in the final decree is in effect a direction to sell the l/6t....
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...., apart from the power conferred under the provisions of the Partition Act. In propounding this principle, the Bench of our High Court respectfully agreed with the view expressed in Nitya Gopal v. Prem Krishna I.L.R., which was later followed in Chandhar Ghose v. Janaki Nath Ghose . While doing so, the Bench also dissented from the view expressed by a Bench of the Andhra High Court in Ramaprasad Rao v. Subbaramiah (1957) 2 An.W.R. 488 : 1957 A.L.T. 587 : I.L.R. (1957) A.P. 566 : A.I.R. 1958 A.P. 647. 12. The judgment of the Supreme Court on appeal from the decision in O.S.A. No. 108 of 1966 as reported in R. Ramamurthi v. V. Rajeswararao , discusses the only question whether in the circumstances of that case, the trial Court could allow withdrawal of the suit which involved the determination of the correct position under Order 23, Rule 1, Code of Civil Procedure in respect of a suit for partition of joint Property in which the provisions of the Partition Act had been invoked or were sought to be applied. No doubt, the Supreme Court refers to the fact that the High Court had expressed the view that the Partition Act conferred on the Court in a suit for partition the power of sale i....
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....nt, though he cited it for a different purpose. In that case, the Supreme Court expressly approved the view taken by K. Subba Rao, C.J. speaking for a Division Bench of Andhra High Court in Ramaprasad Rao v. Subbaramiah (1957)2 An. W.R. 488 : 1957 A.L.T. 587 : I.L.R. (1957) A.P. 566 : A.I.R. 1958 A.P. 647, in these terms: The suit property, being incapable of division in specie there is no alternative but to resort to the process called owelty, according to which, the rights and interests of the parties in the property will be separated, only by allowing one of them to retain the whole of the suit property on payment of just compensation to the other. As rightly pointed on by K. Subba Rao, C.J. (speaking for a Division Bench of Andhra High Court, in Ramaprasad Rao v. Subbaramiah (1957)2 An.W.R. 488 : 1957 A.L.T. 587 : I.L.R. (1957) A.P. 566 : A.I.R. 1958 A.P. 647, in cases not covered by Sections 2 and 3 of the Partition Act, the power of the Court to partition property by any equitable method is not affected by the said Act. 14. It has to be stated at this stage that the Division Bench of this Court in O.S.A. No. 108 of 1966 dissented from the view taken by the Division Bench of....
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....ecific item or items. The joint property is divided in specis and each one of the erst-while joint owners is put in possession of specific extent of property, which is allotted to his share. But many contingencies may be visualised when in practice the division by metes and bounds of every item of joint family property is not possible. A joint owner may be possessed of innumerable items of different extents, value, quality and nature. In dividing the properties among the various co-owners, it may not be possible to divide every items into distinct shares. A property will have to be allotted to one of the sharers and the other has to be compensated with money. This is technically called owelty. Sometimes, the property to be divided may consist of only one item, which cannot conveniently and equitably be divided between the members in which case the Court may allot that item to one co-sharer and direct him to pay the value of the share of the other sharer in money. A Court may also be confronted with a situation, namely, that the item of property is not capable of physical partition or is such that, if divided, it will lose its intrinsic worth, in such a case, that item is allotted....
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....not agree with learned Counsel's submission that the Courts below have directed the sale of the appellant's l/6th share to respondents 3 to 7. The final decree passed by the Courts below deals with Schedule I and Schedule III. In Schedule I, the appellant was declared entitled to l/42th share and in Schedule 3, the appellant has l/6th share. The final decree divided the land in Schedule 1 and allotted 52 cents thereof to respondents 3 to 7 and the entirety of III Schedule house to them. This is not a case in which the suit property, meaning thereby the entire suit property, is found to be indivisible and the Court allotting the same to one party with a direction to them to pay the value of the share of the other party. This is a case in which some portions of the suit properties were allotted to respondents 3 to 7 and another portion of the suit properties was allotted to the appellant herein. As the value of the property allotted to respondents 3 to 7 is in excess of the value of their due share, and as the value of the property allotted to the appellant is less than the value of his due share, respondents 3 to 7 are directed to pay owelty to the appellant herein. That can....
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....no opportunity to canvass the correctness of that report before the Court. A copy of the Commissioner's report in I.A. No. 146 of 1972 which was an earlier application for passing of final decree has been produced before me by learned Counsel for respondents. Paragraph 2 of the said report deals with the house in question and it reads thus: 2. The 3rd Schedule property is a house in Vasudevanallur village. The plaintiffs 3 to 7 and the sixth defendant are each entitled to l/6th share in the house. The plaintiffs 3 to 7 are entitled to 5/6th share. The breadth of the house is only 12' 6". So it cannot be partitioned, conveniently. The only course possible is to allot the house either to the plaintiffs or to the 6th defendant and to pay owelty to the other. I am herewith submitting a rough plan of the III Schedule house. 20. The appellant contends that he had no opportunity to raise an objection to the said report of the Commissioner as that application for passing of final decree was dismissed for default. Learned Counsel submits that his client did not know that the Courts below would place reliance upon that report of the Commissioner. I would have considered this c....
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....ed Counsel for the appellant finally submitted that there should be an auction between his client on the one hand and respondents 3 to 7 on the other. Having found that the allotment of III Schedule house to respondents 3 to 7 is the best mode of division, on the facts and circumstances of the case, I cannot accept the suggestion for an auction between the parties hereto. Thus, all the contentions urged on behalf of the appellant by learned Counsel are found to be without merit and consequently rejected. 22. That brings me back to the starting point where I suggested at the time of first posting of the case that the parties could agree upon the valuation of the III Schedule property so that the market value of 1/6th share of the appellant could be paid to him by respondents 3 to 7. While the appeals were being argued, I suggested to counsel on both sides to get from their respective clients the estimated value of the III Schedule property in writing and place the same before Court in sealed envelopes without One party knowing the value estimated by the other. Accordingly, two sealed envelopes were handed over to me at the conclusion of the arguments. While learned Counsel for the ....