The appellant in both these appeals is the first defendant in O.S. No.40 of 1994 of the Subordinate Judge's Court, Quilandy. 2. The suit was one for partition. A preliminary decree was passed and partition and separate possession of 1/7th share of the plaintiff in the suit was granted. Similarly, the shares to which the defendants are entitled were also fixed. The parties are Muslims and as per Hanafi Law of Succession applicable to them, the first defendant being the son is entitled to get double the share of a daughter. The share of the first defendant was fixed as 2/7 and the shares to each one of the defendants 2 to 5 is also fixed as 1/7, as that of the plaintiff.
3. The plaintiff has applied for the passing of the final decree through I.A. No.780 of 1996 before the court below. The actual extent of the property available for partition is 8.63 cents as per the commissioner's report and plan. The commissioner has reported that the property cannot be partitioned by metes and bounds, as there is a residential building in that property. The first defendant filed I.A. No.688 of 1997 in the final decree application claiming that he may be permitted to purchase the shares of the other co-owners. Similarly, the plaintiff filed I.A. No.944 of 1997 in the final decree application for permitting her to purchase the shares of the other co-owners including the present appellant. The court below, through the impugned common order, has disposed of both the said I.As and ordered that the plaint schedule property has to be sold among the sharers, to the sharer who offer the highest value, and the sale proceeds shall be distributed to the sharers in the proportion of their respective shares. The first defendant, aggrieved by the said order, has come up in appeal.
4. Heard Shri.P.Rahul, learned counsel for the appellant and Smt.Shameena Salahudheen, the learned counsel for the respondents.
5. The learned counsel for the appellant has pointed out that the appellant is occupying the building situated in the plaint schedule property and that he has no other building of his own to reside; whereas, the plaintiff has got another building, wherein she is residing separately. It has also been pointed out that by this time, the appellant had purchased the shares of respondents 2 and 4 also, thereby he is entitled to 4/7 shares in total. In equity, the appellant claims that the principle of owelty within the meaning of Section 3 of the Partition Act, 1893 has to be adopted to protect the right of the appellant, who is presently residing in the building, especially when he is holding the major shares over the property.
6. Learned counsel for the appellant has produced a copy of the Sale Deed dated 5.12.2006, which shows that respondents 2 and 4 have sold their shares to the present appellant for consideration. It is not discernible from the said copy as to whether the Sale Deed is registered or not. It is for the appellant to obtain either a registered Sale Deed or Release Deed, as the case may be, from respondents 2 and 4. In such case, the appellant is entitled to 4/7 shares in the property. Being a major share holder in that property, and especially when he is occupying the building therein as his residence, equity demands the principle of owelty to come into play under Section 3 of the Partition Act, 1893. In Badri Narain Prasad Choudhary v. Nil Ratan Sarkar (A.I.R. 1978 S.C. 845), it was held that:
“Where the suit property is so small that it cannot be conveniently partitioned by metes and bounds without destroying its intrinsic worth, 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.”
In that case, the defendant was a smaller co-sharer holding 3/16 shares and he was using the property as a shop-cum-residence. In that case, it was held that in equity, he should be given a preferential right to retain the whole suit property on payment of the compensation being the just equivalent of the value of the plaintiff's 13/16 shares to them. Here in this particular case, the appellant being a major share holder, who is presently holding 4/7 shares, is entitled to purchase the shares of the other sharers by applying the principle of owelty on the ground of equity. Of course, the appellant is bound to pay the other three shares including the plaintiff's share amounts in accordance with the present market value of the property, which has to be determined by the commission, through the strict supervision of the court below. Matters being so, the appeals are only to be allowed.
In the result, these appeals are allowed and the impugned common order is set aside. The matter is remitted to the court below with a direction to appoint the earlier commissioner himself, or if that commissioner is not available, another fresh commissioner, at the expense of the appellant, to carry out the partition in accordance with the preliminary decree based on the observation made by this Court as above. In carrying out the partition, the market value of the property has to be arrived at and the amount to which each one of the sharers is entitled has to be arrived at by applying the principle of owelty, as contained under Section 3 of the Partition Act, 1893. The entire property shall be alloted to the appellant by making him liable to pay the share amounts of the other sharers from the amount of owelty. The appellant is given an opportunity to prove before the court below that he has purchased the shares of respondents 2 and 4 out of the property. If it is so proved, respondents 2 and 4 shall not be entitled to any share amount, and such shares will devolve on the appellant.
The parties shall appear before the court below on 28.8.2014. There is no order as to costs.
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B.KEMAL PASHA, JUDGE dl // TRUE COPY // PA to Judge