IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 28TH SEPTEMBER 2010 / 6TH ASWINA 1932 RSA.No. 1208 of 2009() ---------------------- AS.18/2007 of SUB COURT, VATAKARA OS.160/2004 of MUNSIFF COURT, VATAKARA .................... APPELLANT IN A.S. 18/07 ------------------------------------------- KIZHAKKETTIL MUHAMMAD NASEER, S/O.ABOOBACKER HAJI, AGED 39 YEARS, TRADER, NUT STREET, VATAKARA, KATAMERI AMSOM DESOM RESIDING AT KIZHAKKETTIL, VADAKARA TALUK, POST KATAMERI, KOZHIKODE DISTRICT, KERALA STATE. BY ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY RESPONDENT(S): RESPONDENT IN A.S 18/07 -------------------------------------- MURICHANDIYIL SARA, D/O.AYISSAKUTTY SOOPY HOUSEWIFE, AGED 55 YEARS, RESIDING AT PUTHUSSERI MEMUNDA AMSOM, KEEZHAL DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. ADV. SRI.C.VATHSALAN SRI.K.RAKESH ROSHAN THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J -------------------------------------- R.S.A No.1208 OF 2009 -------------------------------- Dated this the 28th day of September 2010 JUDGMENT Defendant in a suit for partition has filed this appeal challenging the final decree passed in such suit which was confirmed by the lower appellate court as well negativing the challenges canvassed against such decree. 2. The respondent/plaintiff in the suit is none other than the sister of the appellant. Under the personal law applicable to the parties, which govern the rule of partition of their family property, the appellant/defendant was entitled to a major share ie, 35/40 and the plaintiff only an infinitely small share ie, 5/40. During the final decree proceedings, when the advocate commissioner inspected the site to effect division of the property in terms of the preliminary decree, a request was made by the plaintiff to allot her an area which is sufficient to put up a house. Though as per the share due to her, she was entitled to 2.8 cents only in the property, the advocate commissioner, considering the request made, prepared a plan showing the allotment to be made to the plaintiff as 3.86 cents, fixing the value of owelty to be paid for such excess area alloted payable to the appellant/defendant in the suit. Report and plan of the commissioner was objected to by the respondent contending among others that as the plaintiff has only an infinitely small area he R.S.A No.1208 OF 2009 - 2 - should be permitted to purchase her share. In the context, it has to be noted that otherwise than in the objections to the commission report, the defendant did not seek before or after the appointment of the Commission by the court to purchase the share due to the plaintiff. Be that as it may the trial court, after considering the objections raised by the defendant to the commission report, of which no steps were taken to substantiate the same by examining the commissioner, negatived the challenges against the report by a separate order. Pursuant thereto, accepting the report and the allotment made by the commissioner, the final decree was passed. That final decree, after reappreciation of the materials, was confirmed by the lower appellate court dismissing the appeal of the defendant. Concurrent decision so rendered by the two courts below is challenged in the appeal. 3. I heard the learned counsel for the appellant and also the learned counsel for the respondent to whom notice was issued before admission. Adverting to Rule 14 of Order 26 of the Code of Civil Procedure, the learned counsel for the appellant submitted that the advocate commissioner was incompetent to make an allotment for an excess area in favour of the plaintiff, fixing the owelty thereof to be paid in respect of such allotment, without specific order from the court directing the commissioner to do so. The division made by R.S.A No.1208 OF 2009 - 3 - the commissioner is totally inconvenient to the enjoyment of the property alloted to the defendant and as the plaintiff has only an infinitely small area as her share, on the facts and circumstances involved in the case, the defendant should have been allowed to purchase her share as per the amount fixed by the commissioner, is the submission of the counsel. The learned counsel appearing for the respondent pointing out that both the courts have approved the division made by the commissioner on the principles of equity which the courts are fully empowered to take note of and give effect to in separation of plaint property in a suit for partition, no interference thereof is called for in the absence of circumstances indicating that the discretion so exercised was perverse. So much so, it is contended that no interference with the decision concurrently rendered by the courts below is called for in the present case. 4. After perusing the judgments rendered by both courts with reference to the submissions made by the counsel, I find considerable force in the submission made by the learned counsel for the respondent that both the courts have approved the division effected by the advocate commissioner though it was not strictly in compliance of the provision covered by Rule 14 Order 26 of the Code of Civil Procedure solely in consideration of the principles of equity. Where equitable consideration is taken by a court, which is R.S.A No.1208 OF 2009 - 4 - permissible when division is effected as between the sharers in pursuance of a decree passed in a suit for partition, in the absence of any materials showing that wrong principles have been followed or the division effected is unconscionable , it may not be proper to modify or interfere with the division effected for the sole reason that there is an infringement of the rule applicable in fixation of allotments or providing of owelty. It is also seen that dehors the provisions of the Partition Act the appellant/ defendant could have applied for before the court below to purchase the share of the plaintiff, where it is only an infinitely small area, showing his entitlement to have the whole property. That was not done at any stage of the final decree proceedings other than setting forth as a ground of objection to the commission report. Whatever be the objections to the commission report, needless to point out, no steps were taken to substantiate the same. In such circumstances, I find no interference with the decree passed by the court below is called for. Appeal is dismissed. Sd/- S.S.SATHEESACHANDRAN JUDGE //True Copy// P.A to Judge vdv