Sunday, 21 May 2017

What is distinction between partition of property and separation of shares?

A partition of a property can be only among those having
a share or interest in it. A person who does not have a share in
such property cannot obviously be a party to a partition.
`Separation of share' is a species of 'partition'. When all coowners
get separated, it is a partition. Separation of share/s
refers to a division where only one or only a few among several
co-owners/coparceners get separated, and others continue to be
joint or continue to hold the remaining property jointly without
division by metes and bounds. For example, where four brothers
owning a property divide it among themselves by metes and
bounds, it is a partition. But if only one brother wants to get his
share separated and other three brothers continue to remain joint,
there is only a separation of the share of one brother.”
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT:
The Hon’ble Justice Subrata Talukdar
FMA 273 of 1985
Bina Ghosh vs  Mohanlal Ghosh 
Judgment on : 15/07/2016
Citation: AIR 2017(NOC) 219 Cal

Subrata Talukdar, J.: This is an appeal challenging the judgment and
order dated 26th April, 1984 in Title Appeal No. 42 of 1984 (for short
TA 42/84) passed by the Ld. District Judge at Howrah remanding apartition suit back to the Ld. Trial Court with the direction for
appointment of a new Partition Commissioner for partitioning the
properties in terms of the preliminary decree.
The appellants are the plaintiffs in the suit being Title Suit No.
46 of 1977 for partition of suit properties comprising both ‘bastu’ and
‘bazar’ lands (hereinafter referred to only as ‘bastu’ and ‘bazar’
property respectively). The respondents in this appeal are the
defendants in the suit.
By judgment and decree dated 29th April, 1978 the Ld. Trial
Court, being the Court of the Second Subordinate Judge, Howrah, was
pleased to decree the suit in preliminary form on contest against the
defendants. While so decreeing the Ld. Trial Court declared that the
plaintiffs possess one by sixth share in the suit property which were
directed to be amicably partitioned within three months from the date
of the decree.
Again, by the same preliminary decree the Ld. Trial Court
directed the parties to settle accounts from the ‘bazar’ property within
three months. In the event the suit property (presumably meaning the
‘bazar’ property) is not amicably partitioned and the accounts settled
within the period of three months, the plaintiffs were granted the
liberty to apply for appointment of a Partition Commissioner for
effecting the partition and settling the accounts through Court.Pursuant to the preliminary decree, which is not disputed by
either of the parties in this appeal, the Ld. Trial Court appointed a
Partition Commissioner and, such Commissioner submitted his report
after holding a local inspection. The report of the Ld. Partition
Commissioner was considered by the Ld. Trial Court while decreeing
the suit in final form vide judgment and decree dated 11th February,
1984.
While decreeing the suit in final form the Ld. Trial Court was
pleased to, inter alia, hold that the Ld. Partition Commissioner expired
on 7th November, 1983, that is after filing of his report in Court on the
5th of October, 1983. Therefore, there is no scope to bring the Ld.
Partition Commissioner for cross-examination and the final decree
requires to be decided on the basis of the papers already on record.
The Ld. Trial Court further found that the defendants have
taken the objection that the Ld. Partition Commissioner delayed in
filing his final report, the map submitted in respect of the report is
wrong and the valuation of the property has been arbitrarily fixed.
The Ld. Trial Court found that no prayer was made on behalf of the
defendants to cross-examine the Ld. Partition Commissioner and, the
report of the Ld. Partition Commissioner reflects the evidence of both
the plaintiffs and the defendants.
Dwelling on the evidence of DW1 as recorded by the Ld.
Partition Commissioner, the Ld. Trial Court put much emphasis onthe fact that DW1 expressed no reservation on behalf of self and the
other defendants to accept the shares qua the suit property proposed
to be allotted by the Ld. Partition Commissioner. Therefore, the Ld.
Trial Court found no infirmity in the allotment of the ‘bastu’ property
in favour of the plaintiffs as a whole and the ‘bazar’ property in favour
of the defendants as a whole. The Ld. Trial Court further took note of
the fact that while allotting the above noted suit properties the Ld.
Partition Commissioner was pleased to observe that the ‘bazar’
property was valued four times higher than the ‘bastu’ property.
Accordingly, the suit stood decreed in final form.
Assailing the final decree dated 11th February, 1984 the
defendants came up by way of an appeal being TA 42/84 (supra)
which was finally decided on the 26th of April, 1984. The Ld. Appellate
Court was of the view that the Ld. Partition Commissioner having died
before his report could be considered by the Ld. Trial Court, there was
no occasion on the part of the defendants to examine the infirmities in
the report. The supporting documents connected to the report of the
Ld. Partition Commissioner namely, the field book, the evidence, the
sketch map etc. were filed on 2nd December, 1983 before the Ld. Trial
Court without notice to the Court and strangely, after the death of the
Ld. Partition Commissioner. The circumstance of such filing remains
unexplained and could not be brought to the notice of the Ld.
Partition Commissioner (since deceased).The Ld. Appellate Court also found the assessment of evidence
by the Ld. Trial Court to be wrong. To the mind of the Ld. Appellate
Court the Ld. Trial Court chose to rely entirely on the evidence filed by
and on behalf of the Ld. Partition Commissioner.
Holding that the basic principle of a partition proceeding is to
give effect to the existing possession of the parties, the Ld. Appellate
Court found error in the method of allotment of the suit property as a
whole adopted by the Ld. Partition Commissioner. To the further
mind of the Ld. Appellate Court it was incumbent upon the Ld.
Partition Commissioner to consider the existing possession of the
parties in the ‘bastu’ property as well the accounts connected to the
‘bazar’ property and thereafter proportion the shares equally between
the parties.
Therefore, the Ld. Appellate Court came to the conclusion that
the principles of partition having stood violated by the Ld. Partition
Commissioner and, such error being adopted in toto by the Ld. Trial
Court, the only option left was to remit the suit for fresh consideration
by directing the appointment of a new Partition Commissioner.
The judgment and order of remand passed by the Ld. Appellate
Court dated 26th April, 1984 (supra) is under challenge in this appeal.
Arguing on behalf of the appellants, Sri Sabyasachi
Bhattacharyya, Ld. Senior Counsel and Sri Pratik Prakash Banerjee,
Ld. Counsel raise the following points:-i) That there was no procedural infraction in the carriage of
proceeding by the Ld. Partition Commissioner;
ii) DW1 had accepted unequivocally on behalf of self and other
defendants that the defendants are willing to accept whatever
portion of the suit properties are proposed to be allotted to them
by the Ld. Partition Commissioner.
iii) That in view of the stand taken by DW1 to accept the allotment
awarded by the Ld. Partition Commissioner, the more valuable
‘bazar’ property stood allotted in favour of the defendants.
iv) The defendants did not object to the steps taken by the Ld.
Partition Commissioner and, proceeded to file an evasive
objection before the Ld. Trial Court which was noticed while
decreeing the suit in final form vide judgment and decree dated
11th February, 1984.
v) It is an admitted position that at all times culminating in the
report filed by the Ld. Partition commission it is the plaintiffs
who are in possession of the ‘bastu’ property and the defendants
have separate residence which will be apparent from the
summons served in the suit.
vi) It is alleged by the defendants that the Ld. Partition
Commissioner measured the suit properties using the prismatic
compass survey method but, did not file any map for conveyingthe entire idea of the suit properties, particularly the ‘bazar’
property. However, according to the plaintiffs, the Ld. Partition
Commissioner assessed the entire properties – both ‘bastu’ and
‘bazar’ – and found the entire ‘bastu’ portion in possession of
the plaintiffs excepting the single room which is in occupation of
defendant no.2 and used for business purpose.
vii) It is also argued by the appellants that the Ld. Appellate Court
ignored the fundamental point that the allotment made by the
Ld. Partition Commissioner was effectively on consent. Relying
on Order 23 Rules 9 & 10 CPC, the appellants highlight the fact
that there is no binding requirement that a Partition
Commissioner is always required to be examined.
viii) Relying on the judgement reported in 2001 (2) SCC 221 in the
matter of D.P. Chaddha vs. T.N. Mishra & Ors., Ld. Counsel
for the appellants reiterates that rectification of a recording by
the Ld. Trial Court cannot be taken recourse to at the appellate
stage.
In the facts of the present case there is no ambiguity that the
Ld. Partition Commissioner filed the report during his life time and
such report recorded the consent of the defendants to both the
valuation and the allotment of the suit properties.In support of the above noted points the appellants rely upon
the judgments reported in AIR 1965 Cal 199 (at Paragraph 13) and
AIR 1997 Cal 59 (at Paragraph 7).
ix) Pointing out to the observations of the Ld. Appellate Court to
the effect that the partition must follow the existing possession
of the parties, the appellants draw the attention of this Court to
the final decree emanating from the report of the Ld. Partition
Commissioner to the effect that barring a single room in the
‘bastu’ property, the rest of the ‘bastu’ property stood in
possession of the plaintiffs. Seeking to rely heavily on the
proceedings in CAN 7957 of 2015, which is an application for
producing additional evidence, Ld. Counsel for the appellants
submits that during pendency of the present appeal there was a
grave attempt by the respondents to dispossess the plaintiffs
from the ‘bastu’ property. Such attempted act of dispossession
compelled the plaintiffs to approach the Hon’ble Supreme Court
by way of a contempt petition and, by order dated 23rd
February, 2015 the Hon’ble Apex Court was pleased to appoint
a Court Commissioner to submit a report.
x) Ld. Counsel for the appellants next submits that the report of
the Ld. Court Commissioner clearly underscored the fact that
the plaintiffs were in possession of the ‘bastu’ property and, with
mala fide motive the respondents and their agents forciblyattempted to the dispossess the plaintiffs from the ‘bastu’
property. The Ld. Court Commissioner found that none of the
evidence sought to be produced by the respondents
corroborated any semblance of their possession over the ‘bastu’
properties (also generally decided as the suit property). On the
contrary several documentary and photographic evidence not
only showed that the plaintiffs are in possession of the suit
properties but, the defendants attempted to forcibly break into
such ‘bastu’ property.
xi) The Hon’ble Apex Court took strong notice of the report of the
Ld. Court Commissioner (supra) and, by further order dated
24th April, 2015 in the contempt proceeding recorded the
concession made on behalf of the defendants-alleged
contemnors that the ‘bastu’ property would be handed over to
the plaintiffs failing which the plaintiffs shall have the liberty to
take all assistance from the jurisdictional Commissioner of
Police. Pursuant to the order of the Hon’ble Apex Court dated
24th April, 2015 (supra) the portion of the ‘bastu’ property
forcibly occupied by the defendants was handed over to the
plaintiffs in presence of the Ld. Court Commissioner who
recorded the same vide his report filed before the Hon’ble Apex
Court on the 30th of April, 2015.xii) Therefore, Ld. Counsel for the appellant points out that there
can arise no question of remand as directed by the Ld. Appellate
Court since the Appellate Court itself recorded that the existing
possession of the parties qua the suit properties requires to be
respected. Admittedly, the ‘bastu’ property stood in actual,
physical possession of the plaintiffs and, such possession was
correctly recognised by the Ld. Trial Court while decreeing the
suit in final form on the 11th of February, 1984.
xiii) Ld. Counsel for the appellants accordingly urge this Court to
take judicial notice of the subsequent developments as played
out before the Hon’ble Apex Court after filing of the present
appeal and, such subsequent developments stood corroborated
through the application for production of additional evidence
under Order 41 Rule 27 CPC.
Arguing for the defendants/respondents Sri Saptangshu Basu,
Ld. Senior Counsel and Sri Aniruddha Chatterjee, Ld. Counsel urge
this Court to notice the following points:-
a) That admittedly the Ld. Partition Commissioner died on 7th
November, 1983 after filing his report on 5th October, 1983.
Admittedly again the records of the Ld. Trial Court show that
the supporting evidence collected by the Ld. Partition
Commissioner in the form of exhibits, sketch map, notesheets
etc. were filed subsequently on 26th April, 1984. It is notgathered from the records of the Ld. Trial Court as to how and
by whom at the end of nearly six months from the date of the
unfortunate demise of the Ld. Partition Commissioner, such
documents came to be filed before the Ld. Trial Court.
b) Therefore, the Ld. Counsel for the respondents submits that due
to the death of the Ld. Partition Commissioner he could not be
examined with regard to filing and acceptance of such report.
In view of the above noted circumstances, the Ld. Trial Court
could not have taken judicial notice of the report of the Ld.
Partition Commissioner. Due process demands that the report
of the Ld. Partition Commissioner be filed along with its
supporting documents and record of such filing be maintained
by the Ld. Trial Court. Such due process does not appear to
have been followed in the facts of the present case.
c) Ld. Counsel for the respondents also seriously questions the
principles of valuation adopted by the Ld. Partition
Commissioner. Such valuation fails to apply the judicially
recognized principles of partibility of both the ‘bastu’ and ‘bazar’
properties and, derivatively also fails to take notice of the
allotment of shares to each of the parties qua such partibility.
In a clear violation of judicial principles, the Ld. Partition
Commissioner allotted as a whole the ‘bastu’ and the ‘bazar’
properties respectively to either of the parties.d) Supporting the judgements of the Ld. Appellate Court, Ld.
Counsel for the respondents argue that in such circumstances
it is trite law that an opportunity be granted to examine the Ld.
Partition Commissioner under Order 26 Rule 10(2) CPC.
However, such examination could not take place since the
Commissioner himself was no longer alive.
In support of above noted points the respondents rely on the
decisions reported in AIR 1935 Lahore 501 in the matter of Nasir
Ahmed & Anr. vs. Sarfaraz-ur-Rahman Khan & Anr. and, AIR
1957 Cal 19 in the matter of Gourhari Das & Anr. vs. Jaharlal
Seal & Anr.
e) Taking this Court to several pages of the Paper Book, Ld.
Counsel for the respondents point out that before the Ld.
Partition Commissioner it was suggested on behalf of the
defendants that the ‘bastu’ property be divided among all cosharers.
In the light of the above noted suggestion it cannot be
deduced that the reply of DW1 accepting the allotment made by
the Ld. Partition Commissioner can be read as a concession.
Therefore, when the report of the Ld. Partition Commissioner is
itself in doubt, no final decree can issue unless such Partition
Commissioner is allowed to be cross-examined. There cannot
be in law a joint allotment amongst the co-sharers/parties to
the suit of the entire of the ‘bastu’ and ‘bazar’ propertiesrespectively since, such joint allotment negates the essence of a
partition between the parties. Therefore, Ld. Counsel for the
respondents argue in one voice that the order of remand by the
Ld. Appellate Court should not be touched.
f) On the application for adducing additional evidence as filed by
the appellants before this Court being CAN 7957 (supra), Ld.
Counsel for the respondents point out that it is not the stage in
this appeal that such application can be entertained. This
Court must confine itself to the appreciation of the materials on
record qua the validity of remand. Therefore, at this stage no
additional evidence can be produced or entertained by this
Court since, this Court is only required to make up its mind
whether remand was justified on the basis of the existing
materials on record.
Relying on the decisions reported in AIR 1985 Cal 233 in the
matter of Sunil Chandra Shosh vs. Hemendra Kumar Dey as well
as AIR 1965 SC 1008 in the matter of The Municipal Corporation
of Greater Bombay vs. Lala Pancham & Ors., Ld. Counsel for the
respondents argue that additional evidence should not be allowed to
be produced at the appellate stage for enabling the appellants to make
out a new case.Having heard the parties and considering the materials on
record, this Court arrives at the following conclusions:-
A) That the Ld. Partition Commissioner died on 7th November,
1983, i.e. soon after submitting his report on the 5th of October,
1983.
B) Admittedly, such report was objected to by filing a written
objection on behalf of the defendants before the Ld. Trial Court
on the 22nd of November, 1983 by raising several points
connected to the veracity and the accuracy of such report of the
Ld. Partition Commissioner.
C) This Court notices that by the judgment and preliminary decree
dated 29th of April, 1978 (supra) it was accepted by the parties
that the plaintiffs have 1/6th share in the suit properties
(meaning thereby the ‘bastu’ property) and second, the accounts
of the ‘bazar’ property require to be settled amicably. On the
failure of the parties to reach an amicable settlement, the
Partition Commissioner will both explore the question of
effecting partition in the suit (read ‘bastu’) property as well as
settle the accounts.
D) To the further mind of this Court the report of the Ld. Partition
Commissioner accepted by the Ld. Trial Court in the final decreedated 11th February, 1984 stands at variance to the preliminary
decree dated 29th April, 1978 (supra).
E) To the further mind of this Court the Ld. Partition
Commissioner having died on the 7th of November, 1983, the
subsequent filing of the supporting evidence before the Ld. Trial
Court without a reference point in the record endorsing such
filing, is a departure from due process. In the above noted
circumstances this Court finds that the respondents have
succeeded in making out a case for remand.
F) This Court is also of the view that the report of the Partition
Commissioner filed on 5th October, 1983 was objected to at the
earliest point of time by the defendants vide their objection
dated 22nd November, 1983. Such objection ought to have been
treated with the yardstick applied to a partition proceeding by
the Ld. Trial Court prior to finalising the decree on 11th
February, 1984. However, this Court notices that the Ld. Trial
Court proceeded to treat the so-called concession of the DW1
before the Ld. Partition Commissioner (since deceased) as
sacrosanct and agreed without any reservation to the complete
report of the Ld. Partition Commissioner.G) This Court is of the further view that the Ld. Appellate Court
correctly appreciated that both the principles of allotment and
valuation were not followed by the Ld. Partition Commissioner.
H) Before parting with this case this Court is also required to
notice the observations made by the Ld. Appellate Court that
the basic principle of partition must follow the existing
possession of the parties. Reading such observations in the
light of the report of the Ld. Court Commissioner appointed by
the Hon’ble Apex Court by order dated 23rd February, 2015 in
the contempt petition, this Court finds that the plaintiffs were
sought to be illegally dispossessed during the pendency of this
appeal by the defendants and, following the report of the Ld.
Court Commissioner read with the solemn order of the Hon’ble
Apex Court dated 23rd April, 2015, the plaintiffs were put back
into possession of the ‘bastu’ property on the 23rd of April, 2015
in presence of the Ld. Court Commissioner, which has been
recorded in the report of the Ld. Court Commissioner on 30th
April, 2015.
Accordingly, this Court cannot agree to the observations made
by the Ld. Appellate Court to the effect that “it is, however admitted
and established fact that both the parties to suit are in possession of
the bastu property.”In the backdrop of the above discussion the judgment and order
impugned of the Ld. Appellate Court dated 26th April, 1984 is not
interfered with except in respect of the above noted observations that
both the parties to the suit are in possession of the ‘bastu’ property
which stand set aside.
Subject to the above noted modification the order of remand
stands upheld with the condition that the parties shall maintain
possession qua the ‘bastu’ property as on 25th April, 2015 in terms of
the report of the Ld. Court Commissioner dated 30th of April, 2015
until the ultimate disposal of the partition proceeding in accordance
with law taking notice of the observations made above.
While taking cognizance of the application for production of
additional evidence this Court takes positive notice of the judgement
of the Hon’ble Division Bench reported in CLT 1994 (2) HC 34 in the
matter of Bangshidhar Pal vs. Anil Kumar Pal which at
Paragraphs 4 and 5 read as follows:-
“4. In the instant case, one of the two grounds urged on behalf of
the applicant/plaintiff falls within Clause (aa). So far as the
findings of the Court are concerned, relating to the said ground,
the findings may be said to be of factual nature without
perversity and as such there is no scope for interference in the
present revisional application. So far as the other ground is
concerned the same has been argued to be one drawing
sustenance from Clause (b). A careful reading of the said Clause
(b) indicates that the requirement must be of the Court and Courtmust hold that such requirement exists if either of the two
purposes mentioned in the said Clause constitutes the same.
5. The language of the said Clause (b) leaves no room for doubt
that any finding by the Court about its requirement can be arrived
at only at the stage of pronouncement of the judgement after the
hearing is concluded. Mere opportunity of the Court to look at the
evidence on record without a judicial consideration by application
of its mind in the context of the arguments made on behalf of the
contesting parties cannot enable the Court to form any view about
its requirement. The decisions of the Supreme Court in the cases
of K. Venkataramiah Appellant v. A. Seethamma Reddy and Ors.
respondents . The Municipal Corporation of Greater Bombay
Appellant v. Lala Pancham and Ors. respondents (AIR 1963, SC
1008), Arjan Singh Appellant v. Kartar Singh and Ors.
Respondent (AIR 1951, SC, 153. Natha Singh and Ors. Appellant
v. The Financial Commissioner Taxation Punjab and Ors.
Respondent , lend support to the above view. The default on the
part of a party cannot affect the power of the Court to allow
additional evidence when the Court requires the same. It is
noticeable that the Clause "for any other substantial cause" is in
the nature of a residuary Clause empowering the Court to allow
additional evidence if interest of justice so requires though the
requirement may not be for enabling the Court to pronounce
judgment. It is clear from the aforesaid Supreme Court decisions
that whenever there is obscurity in the evidence or any lacuna
preventing the Court from coming to a comprehensive conclusion
the Court is entitled to invoke its discretion under Clause (b). It is
apparent that such infirmity or lacuna cannot be deciphered
unless the evidence on record, whether oral documentary, has
been considered by the Court judicially and weighed. That is whyCourt cannot be in a position to form a view under Clause (b)
before the hearing of the appeal is concluded and the stage of
considering the respective contentions with the records is
reached.”
Furthermore, the Hon’ble Apex Court in 2009 (9) SCC 689 in
the matter of Shub Karan Buba Alias Shub Karan vs. Sita Saran
Bubna & Ors. has, inter alia held at Paragraphs 5 & 6 observed as
follows:-
“5. `Partition' is a re-distribution or adjustment of pre-existing
rights, among co-owners/coparceners, resulting in a division of
lands or other properties jointly held by them, into different lots or
portions and delivery thereof to the respective allottees. The effect
of such division is that the joint ownership is terminated and the
respective shares vest in them in severalty.
6. A partition of a property can be only among those having
a share or interest in it. A person who does not have a share in
such property cannot obviously be a party to a partition.
`Separation of share' is a species of 'partition'. When all coowners
get separated, it is a partition. Separation of share/s
refers to a division where only one or only a few among several
co-owners/coparceners get separated, and others continue to be
joint or continue to hold the remaining property jointly without
division by metes and bounds. For example, where four brothers
owning a property divide it among themselves by metes and
bounds, it is a partition. But if only one brother wants to get his
share separated and other three brothers continue to remain joint,
there is only a separation of the share of one brother.”This Court is conscious of the fact that the power of remand by
an Appellate Court cannot be exercised at random. However, since
the final partition decree has been arrived at by the Ld. Trial Court
without following the procedure mandated by law, this Court accepts
the remand directed by the Ld. Appellate Court subject to the
modifications and conditions directed above.
Both FMA 273 of 1985 and CAN 7957 of 2015 stand
accordingly disposed of.
There will be, however, no order as to costs.
Urgent Xerox certified photocopies of this judgment, if applied
for, be given to the parties upon compliance of all requisite formalities.
(Subrata Talukdar, J.)
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