Sunday, 3 January 2016

Whether Advocate commissioner can be appointed for partition of house property?

 After passing the final decree, it is open to any one of the parties to initiate proceedings for passing a final decree. The Court after taking cognizance of the final decree application is obliged to proceed in accordance with Order XXVI Rule 13 of the Code of Civil Procedure. The Court would appoint an Advocate Commissioner to partition the property by metes and bounds. The Commissioner appointed for such purpose acts as the authorised officer of the Court and as such he is duty bound to distribute the property among the parties taking into account their respective shares and in the light of the direction given by the Court in the warrant of appointment on the basis of the preliminary decree. Rule 14 of Order XXVI contained a legislative mandate that the Commissioner would allot such share to the parties, meaning thereby joint property should be divided in specie and each one of the sharers should be given a specific item. Sub Rule (2) of Rule 14 of Order XXVI mandates that the Commissioner shall prepare and sign the report apportioning the share of each parties by metes and bounds. This makes the position very clear that the Commissioner is obliged to effect physical division of property into two or more shares. Since a co-owner is entitled, as a matter of right, to partition the co-ownership property, he is also entitled to claim allotment of a specified extent of property to him. The possible difficulty to the other sharers in case the property is divided into two or more shares, cannot be a ground to deny physical division of property and separate allotment to the co-owners in accordance with the share position.
Madras High Court
K. Vijayalakshmi vs K. Sashikanth 
Citation: 2015(1)CTC73, 2014-5-LW481, (2014)8MLJ272
These two Original Side Appeals are directed against the order in Application No.3730 of 2011 in C.S.No.398 of 2010 and the final decree dated 6 June 2012 in C.S.No.398 of 2010, whereby and whereunder after dismissing the application filed by the appellants for a direction to allot the entire property on valuation to them, the trial Court passed a final decree in terms of the report submitted by the Advocate Commissioner.
An outline of the facts:
2. The respondent herein filed a suit seeking partition of the common property into five shares and for separate allotment of one such share to him and thereafter to pass a final decree by dividing the property by metes and bounds.
3. The respondent in his plaint in C.S.No.398 of 2010 contended that the subject property originally belonged to Thiru M.V. Kannappan. It was a self acquired property. Thiru Kannappan died intestate on 21 March 1991. He was survived by his widow, the first appellant herein, other appellants and the respondent.
4. The respondent wanted partition and separate possession of his 1/5 share. The respondent called upon the appellants to take immediate steps to partition the property. The appellants even after receiving notice for initiating action for partition started putting up unauthorized construction with a view to retain the entire property. The respondent immediately filed the suit for partition. The respondent filed an interlocutory application in O.A.No.470 of 2010 to restrain the appellants herein from alienating or encumbering the property. He filed another application in O.A.No.439 of 2010 to restrain the appellants from putting up further construction. The Trial Court granted an interlocutory order on 15 June 2010 in O.A.No.439 of 2010 and thereby directed the parties to maintain status quo.
5. The respondent thereafter filed Contempt Petition No.811 of 2011 alleging wilful disobedience of the order passed by the Court of first instance originally on 15 June 2010 and thereafter on 19 August 2010. The said petition was ultimately disposed of by the learned Single Judge by order dated 7 June 2012. The learned Judge found that the appellants have violated the prohibitory order passed by the Court. However taking into account the relationship between the parties, the learned Judge had pardoned them and thereby closed the matter.
6. The Trial Court passed a preliminary decree dated 22 December 2010 allotting 1/5 share to the respondent. Thereafter the respondent filed Application No.1426 of 2011 for appointment of an Advocate Commissioner to partition the property by metes and bounds in accordance with the preliminary decree.
7. The Commissioner appointed by the Court submitted a comprehensive report indicating the modalities of division of property. The Advocate Commissioner prepared two share lists and plan. The Commissioner in one such share list, allotted 1/5 share to the respondent on the front side of the property. The Commissioner filed an alternative share list and plan allotting 654.48 sq.ft. on the back side of the suit property to the respondent.
8. The appellants herein during the currency of the final decree proceedings filed Application No.3730 of 2011 for appointment of an Advocate Commissioner to determine the fair value of the property so as to enable them to purchase the right of the respondent.
9. The learned Single Judge was of the view that the Advocate Commissioner has already arrived at a conclusion that the property is divisible and as such there is no need to appoint an Advocate Commissioner to determine the fair value of the property once again to enable the appellants to purchase the entire property by giving money value to the respondent.
10. The learned Single Judge considered the alternative plan and share list and ultimately decided to allot back portion to the respondent. Since the back portion is comparatively of less value, the learned Judge accepted the suggestion made by the Advocate Commissioner that ten feet pathway should be given to the respondent so as to enable him to enter his portion from road. The learned Single Judge accordingly passed a comprehensive final decree. The final decree dated 6 June 2012 is challenged in O.S.A.No.310 of 2011. The order dismissing the application bearing No.3730 of 2011 is the subject matter in O.S.A.No.311 of 2011.
Rival Contentions in summary:
11. The learned Senior Counsel for the appellants made the following submissions:
(i) The appellants are having sentimental attachment to the property and as such the entire property should have been allotted to them.
(ii) The trial Court allotted 654.48 sq.ft. of land to the respondent in the back portion. It is not possible for the respondent to obtain planning permission from the Chennai Metropolitan Development Authority in view of the small size of the plot. This aspect was not considered by the learned Single Judge while rejecting the application for valuation of property and allotment of the property in its entirety to the appellants.
(iii) Though the respondent was given only 654.48 sq.ft. of land, in effect he was given more extent, in case the land ear marked for road is also taken into consideration.
(iv) By allotting 1/5 share to the respondent on the back portion of the property, a part of the substantial property is wasted for forming road. This fundamental aspect was not taken note of by the trial Court while rejecting the application for bulk allotment to the appellants.
12. The learned counsel for the respondent made the following substantial contentions:
(i) The land in question is situated in a covetable locality within the jurisdiction of Chennai Corporation. It has got high market value. The appellants wanted allotment of the entire land to them including the house portion so as to develop it as real estate to the detriment of the respondent.
(ii) The appellants constructed first floor of the building in violation of the order of injunction. The appellants are therefore not entitled to any kind of equity.
(iii) The question of invoking the provisions of the Partition Act would arise only in case the property is found not partible. The Commissioner has already found that the nature of property is such that, it is possible for division and as such there is no question of allotting the entire property to the appellants.
(iv) The division of property by metes and bounds is the Rule and grant of money value is only an exception. The Advocate Commissioner filed two alternative share lists, one allotting the front portion and the other allotting back portion to the respondent. The Court without allotting the front portion allotted back portion to the respondent. The respondent has accepted the said allotment. The appellants now wanted the entire land for real estate purpose and as such the plea based on sentiments was rightly negatived.
(v) When it is found that the property is partible, there is no point in making a request to allot the entire property and to give money value to the respondent. The trial Court was therefore perfectly correct in passing a final decree after rejecting the application for wholesale allotment to the appellants.
The Points for determination:
13. (i) Whether the Trial Court was justified in passing the final decree by allotting the back portion to the respondent as suggested by the Advocate Commissioner?
(ii) Whether the appellants are entitled to an order directing sale of the entire plaint schedule property to them on payment of just compensation?
Discussion:
14. The respondent initiated proceedings for partition claiming 1/5 share. There was no dispute before the Trial Court with respect to the share claimed by the respondent and as such a preliminary decree was passed. Thereafter, the respondent filed interlocutory application to pass a final decree in terms of the preliminary decree. The Advocate Commissioner appointed by the Court submitted two share lists and plan. The Court having found that the property is partible, accepted the alternative share list and allotted back portion to the respondent. Before passing final decree, the trial Court rejected the application filed by the appellants for a direction to the Court to value the entire property and allot the entire item to them. This made the appellants to challenge the order passed by the trial Court in application No.3730 of 2011 and the final decree.
15. Before considering the question raised by the appellants on the ground of equity and in the light of the provisions of partition Act, we deem it fit and proper to refer the salient features of the law relating to partition.
Concept of Partition:
16. Partition is a comprehensive legal process in and by which joint ownership and common possession of property is converted into individual property of the respective sharers. Each sharer is allotted a specific item of property of the joint family, after such division by metes and bounds. It is an elementary principle of law that in case there are several co-owners, partition should be effected among them by giving to each sharer his/her share IN SPECIE to the extent possible. In short, if the property is capable of division by metes and bounds, each co-owner should be given a share instead of money value.
17. In a suit for partition, the Court at the first instance, declares the right of parties and the property available for partition. The decree passed in the suit, which is in the nature of a preliminary decree directs partition of joint property in definite shares.
18. Section 97 of the Code of Civil Procedure provides that in case a party to the partition suit fails to challenge the preliminary decree, he would be precluded from disputing its correctness in appeal, which may be preferred from the final decree. Therefore it is clear that the rights of the parties are crystalised and conclusively determined by the preliminary decree.
19. After passing the final decree, it is open to any one of the parties to initiate proceedings for passing a final decree. The Court after taking cognizance of the final decree application is obliged to proceed in accordance with Order XXVI Rule 13 of the Code of Civil Procedure. The Court would appoint an Advocate Commissioner to partition the property by metes and bounds. The Commissioner appointed for such purpose acts as the authorised officer of the Court and as such he is duty bound to distribute the property among the parties taking into account their respective shares and in the light of the direction given by the Court in the warrant of appointment on the basis of the preliminary decree. Rule 14 of Order XXVI contained a legislative mandate that the Commissioner would allot such share to the parties, meaning thereby joint property should be divided in specie and each one of the sharers should be given a specific item. Sub Rule (2) of Rule 14 of Order XXVI mandates that the Commissioner shall prepare and sign the report apportioning the share of each parties by metes and bounds. This makes the position very clear that the Commissioner is obliged to effect physical division of property into two or more shares. Since a co-owner is entitled, as a matter of right, to partition the co-ownership property, he is also entitled to claim allotment of a specified extent of property to him. The possible difficulty to the other sharers in case the property is divided into two or more shares, cannot be a ground to deny physical division of property and separate allotment to the co-owners in accordance with the share position.
20. In case the Advocate Commissioner has divided the property by metes and bounds, taking into account the respective shares of parties and adjusted the share value by fixing owelty amount, the Court under normal circumstances should not disturb such division. The Commissioner in a given case is of the view that the suit property is incapable of division in specie, it is open to him to allot the entire property to one party on payment of owelty amount, which is otherwise called as "just compensation" to other sharers. While making such allotment by accepting the method suggested by the Advocate Commissioner, the Court should balance equity by allowing the major sharers to retain the property in case they have made a request for joint allotment and to pay just compensation to the minor share holder.
Equitable Partition:
21. The Court while considering the proceedings for passing a final decree would be confronted with a difficult situation in case a request for reservation of residential house or any other kind of superstructure on equitable ground is made by one of the parties to the final decree. The Court in such a case is expected to consider variety of factors. There would not be much difficulty for such equitable allotment of residential house or other superstructure subject to payment of just compensation or owelty to other sharers in case the property is situated in a backward or rural area, where the land value is comparatively less and there is no scope for any kind of fluctuation. That is not the case of property abutting main roads or having commercial value. In case the property is situated in an urban area or within the jurisdiction of Municipality, Municipal Corporation or Metropolitan City, the Court cannot shut its eyes to the ground reality. The land value is increasing considerably in these areas on account of limited supply and more demand. The sharer, who wanted preferential allotment on equity must be directed to pay market value in such cases. The plea of reservation on equitable ground must be a bona fide one. There are cases in which the occupant of the house would be employees of Banks, Corporates or Government employees eligible for house building allowance for the purpose of construction of residential house. However, they would not undertake such a course with a view to claim equitable allotment of co-ownership property with superstructure. The Court in such cases must make a genuine exercise to see as to whether the request for allotment on equitable ground is a ruse for getting preferential allotment and thereafter to sell it to strangers for a fabulous sum. While doing equity to a party, the Court should not do injustice to the opponent. Reservation on equitable ground is therefore not a right. It is a way of equitable partition of property.
22. There are two stages in the matter of allotment of the entire property or superstructure to one sharer or group of sharers on the ground of equity. The Court at the first stage is expected to take a decision as to whether the party is really entitled for reservation on the ground of equity. The fact that a particular sharer is residing in the house property alone cannot be a ground for preferential allotment of valuable property to him on equitable grounds. The Court must examine the case by taking an overall view of the matter. The financial position of the party claiming preferential right to retain the property on the ground of his occupation of the house property is also a relevant factor. In case any of the other sharers are also not having residential houses of their own and the property is divisible, the same is also a vital factor to deny the claim of one of the sharer to give preferential right to retain the entire suit property or house on the ground that he has been using it for residential purpose. The Court therefore in such cases is bound to exercise its judicial discretion objectively. The entire background facts should be taken note of while deciding the application for allotment of property in its entirety or reservation of house property by directing the other sharers to accept the money value.
23. The next stage would come after a decision is taken by the Court to reserve either the residential house or the entire property to one party and to direct others to accept owelty amount. The Court is expected to fix the land value and superstructure taking into account the market rate. The Court should therefore undertake the exercise to fix just compensation payable to the other sharer. In case any of the parties have indicated the prevailing land value in the locality or in the neighbourhood either in the pleadings or documents, such value should be taken as the upset price. The Court then should call upon the parties to place their offers for the purpose of fixing just compensation. The Court has to take the maximum amount as indicated by any of the sharers and the value has to be determined accordingly. Thereafter option should be given to the sharer who wanted equitable allotment. In case he is prepared to pay the amount determined earlier, allotment should be made. If he is not prepared to pay the said amount for purchasing the share of others, the Court has no other option than to reject the claim of reservation and accept the division made by the Commissioner.
24. Therefore it is clear that in case the property is susceptible of division, the attempt of the Court must be to divide it by metes and bounds. The question of other method would come only in case division is not feasible.
25. Partition Act, 1893 conferred a right on a sharer to request the Court to sell the property to him subject to the co-relative right of the other share holder to plead for sale of larger share at the valuation fixed by the Court.
26. Section 2 of the Partition Act empowers the Court to initiate proceedings for sale and distribution of sale proceeds among the share holders. The sale in such a situation is not as a matter of course. There must be sufficient materials before the Court to arrive at a positive conclusion that on account of the nature of suit property or the number of share holders or on account of any other special circumstances, it would be difficult to divide the property by metes and bounds and the sale of the property and distribution of proceeds among the sharers would be more beneficial to all the parties. The discretion should be exercised to do justice to the shareholders. The attempt of the Court normally must be for an equitable distribution of proceeds to the greater advantage of parties. A conjoint reading of Sections 2 and 3 would show that the right to make a claim to purchase the property at a value to be fixed by Court under Section 3would arise only in case a situation has arisen when it is not practicable to effect actual division of property.
27. The Supreme Court in R.Ramamurthi Iyer v. Raja V. Rajeswara Rao, (1972) 2 SCC 721 andRani Aloka Dudhoria and ors. vs. Goutam Dudhoria and ors. (2009) 3 Scale 865 considered the scope and ambit of Sections of 2 and 3 of the Partition Act and held that a positive finding that the property is incapable of division by metes and bounds and that the property cannot be reasonably or conveniently be partitioned are pre-requisite for attracting the provisions ofPartition Act, 1893.
Whether appellants are entitled for preferential allotment:
28. The appellants wanted the trial Court to appoint an Advocate Commissioner for the purpose of valuation of entire property and allot it to them on payment of just compensation.
29. The question is whether the appellants are entitled for such a direction in spite of the finding recorded by the trial Court on the basis of the report submitted by the Advocate Commissioner that the property is divisible.
30. The appellants constructed the first floor without any regard to the law of the land. The order passed by the learned Judge dated 7 June 2012 in Contempt Petition No.811 of 2011 very clearly shows that the appellants have even violated the order of injunction and constructed the first floor to the existing residential building without planning permission presumably to plead reservation on equitable ground.
31. The appellants now wanted allotment of the house on equitable grounds. It is trite that those who seek equity must come to the Court with clean hands. The appellants have no regard even to the order passed by this Court. The trial Court restrained them from putting up further construction. Even then the appellants proceeded and completed the construction. The findings recorded by the learned trial Judge in Contempt Petition No.811 of 2011 has now become final. The learned trial Judge instead of punishing the appellants, accepted their unconditional apology and closed the chapter, taking into account the relationship of parties. The conduct of the appellants disentitled them from claiming equity.
32. The Advocate Commissioner appointed by the Court very clearly stated that the property is partible. In fact, the Advocate Commissioner has filed two share lists and plan, which is indicative of the fact that the property could be partitioned in an effective manner and equitably in the interest of both the parties. The learned trial Judge having found that the appellants are the major sharers allotted the front portion, which includes the residential house, to them. The respondent was given the back portion. He was also given way to enter the back portion.
33. The question of directing sale instead of actual division would arise only in case the Court is of the view that by reason of the nature of property or the number of share holders or of any other circumstances, division of the property cannot reasonably or conveniently be made. The trial Court on the basis of the report submitted by the Advocate Commissioner has arrived at a clear finding that the nature of property is such that it could be divided by metes and bounds. There are no special circumstances in this case to direct allotment of the entire property to the appellants.
34(a) The learned Senior Counsel for the appellants placed reliance on a decision of a Division Bench of this Court in Dr.Prasanna Venkatachalam v. Akkamma & Others (2009) 5 Law Weekly 903 in support of his contention that this Court under similar circumstances directed the parties to place their offers in sealed coversand thereafter sold the property to one of the parties taking into account the maximum value.
(b) In Prasanna Venkatachalam, the parties have expressed their sentiments to the property and their desire to retain it. The Division Bench directed the parties to place before it in a sealed cover mentioning their offers as the purchase price of property. The parties have submitted their respective offers. The Court accepted the highest offer and fixed the market price of the property and thereafter allotment was made.
(c) In the case on hand, the property is capable of division by metes and bounds. it is therefore not necessary to ascertain the value of the entire property independently.
35(a) The learned Senior Counsel for the appellants has taken up a contention that it is not possible to construct a building in the property allotted to the respondent.
(b) The learned trial Judge has observed that there is no necessity to obtain planing permission to put up a shed and as such there would not be any difficulty to enjoy the property by the respondent. There is no need for such an observation for the simple reason that it is for the respondent to decide the manner and method of enjoyment of the property allotted to him. The respondent has not made a claim before the Court that he wanted more extent, as otherwise, it would not be possible for him to obtain planning permission. The respondent is satisfied with the land allotted to him. Therefore the argument on the basis of Building Regulation has no force.
Conclusion in respect of two points framed for determination:
36. There is no question of directing the respondent to sell his share to the appellants in view of the nature of property and the division made by the Advocate Commissioner. We are therefore of the view that the learned trial Judge was perfectly correct in rejecting the application for sale of the property to the appellants. The second point is answered accordingly.
37. The learned Trial Judge considered the alternative share list and plan submitted by the Advocate Commissioner and accepted the share list wherein back portion was ear marked to the respondent. The learned trial Judge partitioned the property by metes and bounds in an equitable manner. The respondent also wanted a share in the property by physical division instead of its money value. The nature of the property is such that both sides could be given property to the extent of their share. This aspect was taken note of by the learned Single Judge and accordingly equitable division was made. The final decree passed by the Trial Court is therefore unexceptional. The first point is answered accordingly.
38. We do not find merit in any of the contentions raised on behalf of the appellants.
Disposition:
39. For the reasons set out above, we dismiss the Original Side Appeals. Consequently, the connected MPs are closed. No costs.


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