1.This is a revision by defendant-4 against the order dated 18-2-1981 passed by the Munsiff, Gulbarga, in F.D.P. No. 14 of 1980 (O.S. No. 110/69) appointing a Commissioner under Order 26 Rules 13 and 14 C.P.C.
2. One Mohd. Ibrahim who died on 6-3 1961 had left behind him his daughterRahimunnisa the plaintiff, and two sons Abdul Gafoor defendant-1 and Mohd. Abdul Kareem defendant-2. He left behind him the suit properties.
3. We are concerned at this stage only with item No. 1 of the property. The decree passed in relation to item No. 1 is that the plaintiff has got 1/5th share, defendant-2 has got 2/5th share and defendant-4 has got 2/5th share. Defendant- I sold the suit item No. 1 property to defendant-3 on 204-1967. In turn defendant 3 sold item No. 1 property to defendant-4 under a sale deed dated 9-8-1968. Defendant-3 had agreed to sell this very property to defendant-4 under an agreement dated 26-1-1967. This decree was ultimately confirmed by this Court in R.S.A. No. 1113 of 1979.
4. Now an application for final decree proceedings has been filed by the plaintiff for partition by metes and bounds of her l/5th share. The Trial Court appointed aCommissioner under Order 26 Rule 13 C.P.C.
5. Defendant-4 contended that be had constructed a building worth more than Rs. 70,000/- in the area on which suit item No. 1 property stood and that he had demolished the whole building and that the entire item No.1 property should be allotted to defendant-1 and in substance to him.
6. The Court below after considering the objections, passed the impugned order appointing a Commissioner under Order 26 Rules 13 and 14 C.P.C.
7. It is this order that is challenged by defendant-4 in this revision.
8. The Learned Counsel Shri Sundaraswamy for defen-daot-4 urged that whether defendants-3 and 4 were bona fide purchasers or not was immaterial for the purpose of the final decree proceedings. According to him, the vendor defendant-1 had admittedly 2/5th share in suit item No. 1 property. According to him, defendant-3 and thereafter defendant-4 stepped into the shoes of defendant-1 and therefore according to the Learned Counsel ShriSundaraswamy it should be considered as to whether the entire item No. 1 property could or should be allotted to defen-dant-4 or not. In short he contended that the question would boil down to this. According to him even if the entire item No. 1 property cannot be allotted to defendant-4 the Court should consider as to whether the plaintiffs claim can be satisfied by the award of owelty. The Learned Counsel Shri Sundaraswamy relied on Nutbeharj Das -v.- Nanilal Das and others . He referred to the observation contained in page 69 which reads as :
'The observations quoted by Mitter, J., from Ram Charan Mitter's Tagore Lectures on Partition emphasize an important principle, but as there is not even a plan of the homestead and buildings before the Board, it would not be safe or right to direct that the buildings should be divided into the same shares as the land. Perhaps the most ordinary method when one co-sharer has put up buildings on the land is to allot to him for his share a portion of the land which contains his building. When this cannot be done or would not be fair it may nevertheless beunreasonable and unnecessary to treat such co-sharer exactly as the others. The scheme of partition should not be taken out of the hands of thecommissioner of partition in advance, but should be left in the first instance to his discretion in the usual course.'
These observations of the Privy Council would expect of the Commissioner to consider as to whether the building should be divided into the same shares as the land. Perhaps the most ordinary method when one co-sharer has put upbuildings on the land is to allot to him for his share a portion of the land which contains his building. This requires the consideration as to whether defendant-4 can be allotted the entire item No. 1 property to the exclusion of the plaintiff. It also requires the consideration as to whether the plaintiffs claim can be satisfied by giving her sufficient owelty
9. Shri Sundaraswamy then relied on Gemalsingji Khumansingji and another-v.- Bai Fati and others : AIR1939Bom40 .. It has been laid down in page 41 as ;-
'It is well established that) in effecting partition of joint property between co-sharers and an alienee from one or some of them, equity requires that partition should be so effected as not to prejudice the latter. The principles which apply in cases of partition among Hindus also apply, according to our decisions, as observed by the Teamed Appellate Judge, in the case of Mahomedans. The underlying principle is, that a bona fide purchaser for value should not be prejudiced by reason of anysubsequent suit for partition brought on behalf of the other cosharers, and that if, without doing injustice between the parties, the equities between the alienee and the other cosharers can be so adjusted as to allow the purchaser the full fruit of his bargain for which he has paid full consideration, that ought to be done.'
The Bombay High Court has further referred to paragraph No. 261(3) of Mulla's Hindu Law (Edn. 8) at page 300 as :-
'The alienee of a specific property or of the undivided interest of a coparcener in such property has on a general partition an equitable right to have that property, or his alienor's share in that property, as the case may be, assigned to him if it could be done without injustice to the other coparceners. But there may be equities between the coparceners orliabilities attaching to the alienor's share which may render it inequitable or impracticable to do so. In such a case the alienee is entitled to recover from his alienor property of an equivalent value out of the properties allotted to the alienor for his share in substitution of the property alienated.'
The principles laid by the Bombay High Court require the Court to find out as to whether the purchaser could or should be allotted the entire property purchased by him or whether the claim can be satisfied by some other method.
10. The Learned Counsel Shri Sundaraswamy then relied on Tikam Chand Lunia v.- Rahim Khan Ishak Khan and Others : AIR1971MP23 . The Madhya Pradesh High Court has said in para 14 as :-
'In our opinion, the contention of the appellant has merit and must be given effect, to. On the death of a Mahomedan, his heirs become entitled to their specific shares inthe estate of the deceased as tenants -in-common. What they can validly insist upon is that they must be given property equal to their share in the property left by the deceased but they cannot insist that each single property must be divided into so many as represent the shares of the heirs.
It is trite that every co-owner has a legal right to have the joint properties partitioned. Mere reluctance or some inconvenience of other co-owners is not by itself sufficient to take away the said right. Different considerations, however, apply where a partition is inconvenient or is destructive of the intrinsic value of the property. In such cases Courts avoid actual partition as far as practicable and adopt a procedure more suitable in the circumstances of the case. The Court has the jurisdiction to allot such a property exclusively to one co-owner with suitabledirection for payment of owelty money to the others. We feel that there is no justification to deprive the plaintiff, who is a purchaser for value, from having an equity in his favour to stand in the shoes of his alienors to the extent of claiming a general partition of all the properties so that the equities may be worked out by allotting to the shares of his vendors the properties which have been alienated by them if such a course did not work injustice to the right of the other co-owners.'
The Madhya Pradesh High Court has further stated in para 15 as :-
'A co-owner under the Mahomedan Law has a right to sell his undivided share in the estate to which he has succeeded as an heir. An alienee of a specific item of the property stands in the shoes of the co-owner from whom he has purchased any specific item of property and thus, in our opinion, he obtains a personal right which he is equally entitled to enforce against th3 shares of his vendors.'
The principles laid down by the Madhya Pradesh High Court also requires the Court in final decree proceedings to consider as to whether it is possible to allot the property purchased by a third party to him exclusively and whether it is possible to compensate the other co-sharers or tenants-in-common by award of owelty.
11. All these things will have to be taken into consideration only at the time when the Court is seized with the question of accepting or rejecting the report submitted by the Commissioner. That stage does not arise till the Com-missioner submits his report.
12. The Learned Counsel Shri Sundaraswamy made a grievance that the Trial Court had already expressed its opinion in this matter. I think he is right in commenting upon the order passed by the Court below. The Court below ought to have restrained itself from expressing any opinion, because any expression of opinion by the Court below at this stage is likely to affect the opinion or the report which may be submitted by the Commissioner.The Trial Court appears to have been carried away by the impression that when the parties have been declared to have particular share in each of the properties, the partyconcerned is entitled to partition and possession in respect of each and every property. That appears to be a mistaken impression. In the case of partition by metes and bounds, whether the parties are Mahomedans or Hindus, the Court will have to consider as to whether it would be equitable, proper and just to allot the entire property to the purchaser and while doing so whether the claim of the others can be met by an award of owelty. Therefore, the Trial Court ought to have only stated that it was going to appoint a Commissioner under Order 26 Rules 13 and 14 C.P.C. without expressing any opinion about the claims of either of the parties. Had it done so there would not have been any opportunity for any one of the parties to make a grievance.
13. Shri Shivaraj Patil placed before me R.S. Maddanappa (deceased) by his L.Rs.-v.- Chandramma and Another : 3SCR283 . The Supreme Court has stated as :-
'No man who spends money on improving property, knowing fully well that he has no title to it can be permitted to deprive the original owner of his right to possession of the property except upon the payment for the improvements which were not effected with the consent of that person. The doctrine of acquiescence is of no help to such a man, for he who knows the true state of affairs, cannot say that any mistaken belief was caused in his mind by reason of what the owner said or did.'
The question of applicability of Section 51 of T.P. Act was considered in the said case. I do not want to express any opinion at this stage as to whether the principles laid down by Section 51 would be really applicable to the facts of the case or not. But, however, I would like to say that Section 51 would come into play in a case where the purchaser wants a party concerned to pay the money by way of compensation for the improvements effected by him. But, however, I leave the matter to the Trial Court to consider it. It was a case where the purchaser had purchased the property from a person who had absolutely no right, title or interest in the property.
14. Shri Shivaraj Patil then placed before me Smt. Kala Devi -v.- Radha Kishan and another . The Rajasthan High Court has stated as :-
'In the present case there is no room for any doubt that thedefendant-vendee knew it very well from the very beginning that the plaintiff being a co-sharer and having other rights, had a right of pre-emption under the Act. In fact the defendant-vendee in her written statement did not even challenge the right of pre-emption of the plaintiff. Neither the vendee nor the vendor took steps to be sure that the plaintiff would not pre-empt. It, therefore, cannot be said in the present case that the vendee believed in good faith at the time of sale in her favour that she was absolutely entitled to the property. Under the circumstances the vendee cannot be said to have made the improvements believing in good faith that she was an absolute owner of the property in dispute. Consequently she is not entitled to any amount spent on account of repairs and improvements. The repairs and improvements made by the vendee were not made in good faith and on the contrary, she showed 'undue haste intaking up the work of repairs in spite of the warning given by the plaintiff pre-emptor.'
It was a case where the effect of Section 51 of the T.P. Act was considered. I have already stated about this aspect of the matter above. It is for the Trial Court to find out as to whether the principle laid down by Section 51 of the T.P. Act would be applicable to th' facts of the present case.
15. Shri Shivaraj Patil then placed before me Gourbari Das and another -v.- Jabarlal Seal and another. The Calcutta High Court has stated in para 7 as :-
'With regard to the merits we would not express any option at this stage, but would just indicate the defects which have been brought to our notice and which require solution by the Learned Subordinate Judge.'
The Calcutta High Court has rightly laid down the principle of guidance that in cases of final decree proceedings, the High Court should be normally reluctant to express any opinion, because the Court dealing with the decree final proceedings and the Commissioner will have to consider about the possibility or otherwise and about the method of effecting partition.
16. I would like to make it clear that the Commissioner has been appointed in this case under Order 26 Rules 13 and 14 C.P.C. Rules 13 and 14 of Order 26 C.P.C. clearly lay down the guiding principles which should be borne in mind by the Commissioner while effecting the partition. I am sure that the Commissioner will bear in mind all the above principles and the various guide lines above referred to by me and would submit his report to the Court and it is for the Court to accept the report of the Commissioner or to reject it or to vary it. The principles laid down by Rules 13 and 14 of Order 26 C.P.C. clearly lay down that it is not the only function of the Commissioner to divide the proper-ties into definite portions as per the shares declared by the Court. It is for him to suggest as to whether it is possible for him to effect partition by metes and bounds in respect of the plaintiff's 1/5th share or whether it can be done by some other method. It is open to the Commissioner to consider as to whether it would be equitable, fair and just or not to divide the property by metes and bounds or to allot the entire property or as to whether defendant-4's claim can be met by award of any owelty.
17. With these observations, the revision is disposed of.