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P.K. Balasubramanium
C.J.
JUDGMENT
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
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
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
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
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
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
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
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
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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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