Aggrieved by the final decree passed, defendant Nos. 3 and 8 in O.S. 10 of 1970 which is a suit for partition, has approached this Court with these petitions.
2. Preliminary decree in the partition suit was passed on 31.7.1976. One share was allotted to the plaintiff. Nine shares to defendants 1 to 8 and six shares to defendants 10 and 12 to 14 and three shares to defendant No.16. In the partition suit plaint A, B and C schedule properties were found partible except item No. 59 of A schedule.
3. Preliminary decree was passed for 19 shares. Due to death there occurred variance in shares and it is not in dispute that allotment of shares as of now is as follows:
Defendants 2 to 4 and defendants 6 to 8 are together given 1020 shares, defendant No.5 - 120 shares, defendant No.12 - 200 shares, defendants 15 and 16 - 360 shares, defendant No.17 - 30 shares, defendant No. 14 - 30 shares, defendants 20, 21 and their father were given 200 shares and defendant No. 14 - 320 shares.
Subsequent to the death of defendants 1, 2 and 7, there was again change in quantum of shares. The first defendant bequeathed her share to defendants 3, 4, 6 and 8 by virtue of Will No.64/89. The second defendant died and her interest fell on defendants 3 to 8. 7th defendant released her share to third defendant by release deed No.23/85. With this sequence of events, the shares available to defendants 3 to 8 are as follows:
4. Defendant No.3 - 325, defendant No. 4 - 205, defendant No.5 - 40, defendant No. 6 - 205, defendant No. 7 - 40, defendant No.8 - 205, thus total of 1020 shares.
5. Initially a final decree was passed and some of the sharers had taken possession of their property. In that final decree inter se dispute between defendants 3 to 8 reserved to be considered in a supplementary final decree. The inter se dispute between defendants 3 to 8 is sought to be resolved in the present final decree proceedings.
6. In the supplementary final decree proceedings, in order to settle the dispute between defendants 3 to 8 commissioner was appointed and he filed Exts. C5 to C10 plans and reports. The third defendant filed I.A. 80 of 2009 objection to the Commission report and plan and defendant No.8 filed I.A. 136 of 2009. After considering the contentions of rival parties, final decree was passed which is under challenge. It is to be noticed that in fact the commission report was remitted for certain purpose alone though it finally determined the plots to be allotted to the sharers.
7. In these proceedings, we are primarily concerned with the objections raised by defendants 3 and 8. The common grievance of defendants 3 and 8 are that though they are having larger shares, they were allotted with less extent of property and the valuation made is inequitable. They have also a case that they have not been given prime properties and the commissioner had discriminated between sharers. Further complaint is that even though objections were raised by defendants 3 and 8, without considering the same ultimately an order was passed whereby defendants 3 and 8 were allotted with shares with less extent of property. In fact defendant No.8 has a case that in one of the plots allotted to him a water channell runs through the property. Offers were made before this Court regarding exchange of properties between defendants 4, 6 and 8.
8. One of the contentions which arises for consideration is regarding the allocation of Naalukettu which was a subject matter of debate before the court below. It has come out from the records that in fact the third defendant wanted it to be allotted to him as could be seen from the commission report and it was in fact allotted to him. Thereafter he retracted from the demand and stated that he did not want the Naalukettu. Then the court directed that the same may be auctioned and proceeds may be distributed. It may be noticed that Naalukettu was valued at Rs.2,07,000/-. Padippura was set apart to defendant No.3 and the pathayappura set apart to eighth defendant is valued at Rs.62,000/-. There are several objections taken to the Commission report like the allocation of the pond, well etc which are not very relevant for the present purpose. The court below after considering the various allegations disposed of the application as follows:
“In the result, the petitions are allowed on condition of deposit of a sum of Rs.2500/- each by the petitioners (Defendant Nos. 3 and 8) and the reports, accounts submitted by the Commissioner are hereby remitted back to him with a direction to exchange the plot allotted to D3 and D8 in Ext.C9(a) plan between themselves. If the 8th defendant is not interested in getting the family house 'Nalukettu' allotted to his share the same can be sold either in between the sharers or among the general public and the proceeds disbursed among the sharers. The Commissioner has to provide a pathway having a width of 10 feet to plot No.6 in Ext.C10(A) plan allotted to the share of D3. The Commissioner shall also provide pathway having a width of 10 feet to plot No.1 which is allotted to the share of D3 in Ext.C10(A) plan. The allotment to the other sharers are accepted. If the amount of Rs.2500/- each is not deposited within one week, the petition shall stand dismissed. No cost.”
9. It is true that defendants 3 and 8 have larger number of shares than the other sharers. Obviously it may appear that going by the extent of properties now allotted that they have been discriminated. Defendants 4 and 6 who have lesser shares have been allotted larger extent of property. Here one has to notice, if property is to be allotted to them as per the number of shares, the extent available to them will be negligible and they would be thrown to streets. In order to safeguard their interests, properties have been allotted to them and they are made liable to pay owelty amount towards equalization of shares. The approach is certainly just, reasonable and proper.
10. The third defendant has now confirmed that he would like to retain the Nalukettu which is valued as already stated at Rs.2,07,000/-.
11. Before going further one aspect may be noticed. Even though initially strong objection was taken to the valuation of the property, it was ultimately conceded that valuation may not be open to debate since that aspect had been accepted by the court earlier and some persons had got the properties allotted to them delivered. That cannot be re-agitated now.
12. If one closely looks at the valuation of the property allotted to each of the persons, it could be seen that there is not much difference in the allotment even though the fourth defendant and sixth defendant appear to have larger extent while considering the shares available to them. But the valuation of the property set apart to them shows that it is almost at par with property allotted to defendants 3 and 8 and more so when they are mulcted with liability to pay owelty amount.
13. It is contended on behalf of the third defendant that most of the objections raised by him are accepted by the trial court and ultimately when the final decree application is sought to be disposed of, none of the grievances stand redressed and he is at a disadvantage.
14. It is true that some of the objections raised by the third defendant have been accepted by the court below, but that is regarding the extent of properties alloted etc. In fact, the lack of accessibility in respect of two of the plots raised by defendant No.3 have been accepted by the court below and for that purpose the court below remitted the commission directing the Commissioner to provide access to those properties.
15. Now that the third defendant has expressed his willingness to have the Naalukettu allotted to him, one need not bother about the same. The Naalukettu was directed to be sold by auction. The lower court after directing the Commissioner to provide a pathway to the properties allotted to the third defendant, has chosen to accept the allotment to other sharers.
16. As already noticed, the main grievance of defendants 3 and 8 is that though they were entitled to larger number of shares, the extent of property allotted to them is far less than due to them.
17. True, it appears to be so. But as already noticed, going by the valuation, it may be seen that there is not much of a difference between the extent of property allotted to each of the persons. The Pathayappura which is valued at Rs.62,000/- is allotted to the 8th defendant and that takes in quite a number of shares that is due to him. So is the case of defendant No.3 who had been allotted Naalukettu which is valued at Rs.2,07,000/-.
18. Of course, the Commissioner when examined was not able to answer as to why certain properties were allotted to certain sharers. But on going through the report as a whole, it can be seen that the commissioner has attempted to partition the properties in the best possible manner bearing in mind the valuation of the property as assessed by him and thus allotted properties to the shares. Of course, there could have been a different mode of allocation altogether. But unless it is shown that the allocation now made suffers from serious infirmities, one need not interfere with the same.
19. Here, one cannot omit to note that the suit is of the year 1971 and we are in 2014 and still some of the sharers are yet to get properties allotted to them. The litigation is going on for nearly half a century.
20. Before this Court, the learned counsel appearing for the third defendant and eighth defendant made suggestions for exchange of properties with other sharers. In fact the fourth defendant was willing to exchange item No.14 shown in Ext.C9(a) plan for equal extent of property which may be given to him either by third defendant or eighth defendant as the case may be, to which defendants 3 and 8 were not amenable. Defendant No.8 in fact offered that he is willing to take property allotted to defendant No.4 and in turn he would give the property allotted to him to defendant No.4. To which defendant No.4 was not amenable.
21. There is a way provided as common pathway to Naalukettu which is allotted to the third defendant. That way is accessible to defendant No.4 as well as defendant No.8 also. Objection is taken by the third defendant to the fact that defendant Nos.4 and 8 have other access to their respective properties and the pathway which leads to the Mana may be set apart exclusively to him and he is willing to pay proportionate amount to defendants 4 and 8.
22. One cannot omit to note that defendants 4 and 8 have other means of access to their respective properties set apart to them. The suggestion of third defendant that the pathway leading to the Mana may be set apart exclusively to him on his paying proportionate value to defendants 4 and 8 seems to be just. When this suggestion was put to defendants 4 and 8, it was repelled by defendant No.8 on the ground that in order to have access to Pathayapura he needs the way. If as a matter of fact defendants 4 and 8 cannot give up their right of way now made mention of, further consideration of that matter is closed. It is true that the fourth defendant has access through other means. But it is to be remembered that the way is carved out from the family property and not from the property exclusively set apart to the third defendant. Being not a feasible suggestion, it is only to be rejected.
23. Objection is taken by the third defendant to the observation of the court below that 15 cents set apart to him can be sold in public auction and money be taken by him. Of course, there is some anomaly in that finding. But to upset the entire allocation for the said purpose will not be justifiable. It is true that it is near a river bank. But as already noticed, when the valuation of the property is taken into consideration, it follows that no injustice is done to any of the sharers.
24. It is significant to notice that an order is now passed remitting the report of the Commissioner for certain purposes. It was suggested by counsel for defendants 3 and 8 that if the commission report is remitted to the commissioner for certain purposes, it will be only appropriate to direct the commissioner to make allocation in a more equitable manner so that interests of all sharers are safeguarded.
25. It has already been noticed that nearly half a century has elapsed and the litigation is yet to reach finality. To upset the entire allocation and let the litigation continue for another decade will be doing injustice to the parties. For equalisation of shares, the court below also ordered owelty to be paid to the sharers who are having less extent of properties, though entitled to more shares.
26. Considering the nature of the properties, the allocation of the properties, the number of sharers and also the structures in the property, there seems to be no justification for this Court to interfere with the allocation made and the order now passed by the trial court. Perfect partition is always impossible and if there has been some inequities with regard to the shares allotted to them, owelty is directed to be paid so as to equalise the sharers. This Court will not justified in interfering with the order of the court below.
27. One fact needs to be noticed in this regard. 12th defendant who had nothing to do with the issue on hand was also made a party and property set apart to him remains undelivered. So is the case with defendants 15 and 16. They have been unnecessarily dragged into these proceedings by the respective petitioners. In fact, it is a case where exemplary costs ought to have been granted to them. But since considering the relationship between the parties, it is felt that it is inappropriate at this point of time to award costs to them. It is made clear that property set apart to them shall be delivered forthwith as expeditiously as possible, at any rate, within a period of two weeks from the date of receipt of a copy of this judgment.
This Court finds no reason to interfere with the order of the court below and these Original Petitions are without merits and they are accordingly dismissed.
P. BHAVADASAN, JUDGE sb.