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.)