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S. Paramasivam Pillai Vs. Minakshisundaram Pillai Dead and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1923Mad96; 73Ind.Cas.863
AppellantS. Paramasivam Pillai
RespondentMinakshisundaram Pillai Dead and ors.
Cases ReferredIn Siddick Hajee Sumar Sait v. Mahomad Hussain Sait
minor, transaction with - fairness of transaction--partition--adult co-owner, position of--partial partition. - devados, j.1. the first defendant is the appellant in appeal no. 314 of 1918. the suit is by one meenakshi sundaram pillai for a division of the plaint property which belonged to him and to the first defendant or for the value of his share, should the court consider that it was inequitable that he should get possession of a moiety of the plaint land. the main allegations in the plaint are, that plaintiff's father chellaperumal pillai was a first grade pleader at sattur; that he purchased the plaint land in 1900 along with the first defendant under exhibit d; that his father diedin 1902; that in 1904 when the plaintiff was a minor, the 1st defendant entered into an arrangement with his mother as evidenced by exhibit a, whereby the plaint plot was allotted to the first defendant and another.....

Devados, J.

1. The first defendant is the appellant in Appeal No. 314 of 1918. The suit is by one Meenakshi Sundaram Pillai for a division of the plaint property which belonged to him and to the first defendant or for the value of his share, should the Court consider that it was inequitable that he should get possession of a moiety of the plaint land. The main allegations in the plaint are, that plaintiff's father Chellaperumal Pillai was a First Grade Pleader at Sattur; that he purchased the plaint land in 1900 along with the first defendant under Exhibit D; that his father diedin 1902; that in 1904 when the plaintiff was a minor, the 1st defendant entered into an arrangement with his mother as evidenced by Exhibit A, whereby the plaint plot was allotted to the first defendant and another plot which belonged in common to his father and the first defendant was allotted to him for his share; that he attained majority on 3rd January 1914 and that the plaint plot was worth much more than Rs. 500 the value given in Exhibit A; that he was entitled, to be given a moiety of the plaint site as there was no necessity for the execution of Exhibit A by his guardian, and that it was not binding on him. The first defendant pleaded among other things that the arrangement evidenced by Exhibit A was a bona fide arrangement , that the plaint plot was not worth more than five hundred rupees in 1904; that the plot allotted to the plaintiff was the more valuable of the two as it was situated opposite to the District Munsif's Court-house and other public buildings; that he did not act in any way unfairly to the plaintiff, and that the plaintiff s guardian had 'the very competent, independent and absolutely disinterested advice of the plaintiff's father's best and trusted friend;' that the arrangement was beneficial to the plaintiff and that he was not entitled to claim a moiety of the plaint land, and that the suit was barred by limitation. The other defendants are alienees from the first defendant who have built houses on the plaint land. They adopted the defence of the first defendant and added that in any event the plaintiff was not entitled to possession of the plaint land; that they had invested large sums of money in erecting houses, and that the plaintiff was not entitled to ask that they should be pulled dowh and removed.

2. The Temporary Subordinate Judge, Ramnad, held that the plaintiff's suit was not barred by limitation; that the arrangement evidenced by Exhibit A was without any necessity; that the first defendant did not act bona fide and that the other defendants were not bona fide purchasers for value, and gave a decree to the plaintiff for a sum of Rs. 16,500 being the value of a half share of the plaint property. Against this decree the first defendant has preferred Appeal No. 314 of 1918. The other defendants have preferred Appeal No. 60 of 1919. It is unnecessary to consider Appeal No. 60 of 1919 as the appellants did not bring the legal representatives of the first respondent on record within the time allowed by law. The plaintiff who was first respondent died in April 1921 and the application of the Vakil at the time of the hearing of the appeal to be allowed to bring on record the legal representatives of the plaintiff-respondent cannot be entertained after the lapse of one year and three months. The decree of the Subordinate Judge will stand so far as the appellants in Appeal No. 60 of 1919 are concerned. Appeal No. 60 is dismissed.

3. Appeal No. 314 of 1918 was argued at great length and the main contention for the appellant was that Exhibit A, being an ordinary partition arrangement unless the plaintiff could show that it was brought about by fraud, or any improper act on the part of the first defendant, it could not be set aside, and that the Subordinate Judge had wrongly thrown the onus of proving the necessity for the transaction on the first defendant and that the finding of the Subordinate Judge was vitiated by his wrong view of the law as regards the onus of proof. It is necessary to see what the facts are before applying the law to the facts of the case. The admitted facts are that the plaintiff's father Chellaperumal Pillai was a well-known First Grade Pleader in Sattur and acquired considerable property. He purchased the plaint property in 1900 under Exhibit D for Rs. 500 in his name as well as in that of the first defendant. He died In 1902 leaving the plaintiff and another son aged about 3 and Ids wife aged about 23 or 24 yar3. His wife was his own sister's daughter and after his death his affairs were managed by his widow and sister. In his Will he appointed four persons to assist the widow in the management of his estate one of whom is defendants witness No. 1. Another piece of land consisting of 4 plots situated opposite to the present District Munsifs Court-house was purchased for Rs. 500 in the joint names of first defendant and Chellaperunial Pillai. Though the document evidencing the purchase of the latter four plots has not been exhibited, yet it can be fairly held to have been proved that it was purchased in 1897 for Rs. 500. It is also well-known that Sattur is a place of commercial importance. There are several Cotton Mills and a number of Factories. The plaint site is near the road leading to the Railway Station, one of the principal thoroughfares of the town. The extent of the plaint land is 11,000 kulis. The extent of the other plot opposite to the District. Munsifs Court-house is 512 kulis. The plaintiff was a minor of about seven years of age and his mother a young Hindu widow at the time of Exhibit A. There is no evidence that there was any need for partition in 1904. The plaintiff's father had acquired before 1900 two plots of land called Marakadai or Timber depot land adjoining the road to the Railway Station which could connect the plaint land with the road. There was no access from the plaint laud to any of the public roads in 1904 and, subsequent to the date of Exhibit A, the first defendant bought the plots to the south and north of the plaint land in order to get access to the road on either sides by Exhibits III and H. There is also evidence to show that from 1897 people began to build near and about the plaint land. There is no evidence, that the plaintiff's mother consulted any independent person with regard to the division of the plaint land excepting defendants' witness No. 1 about whose evidence I shall have to say something later on.

4. On these facts the question is, whether the onus which was primarily on the plaintiff to show, that the transaction was not one for his benefit has really shifted to the first defendant. The plaintiff has, no doubt, to make out a case before he could ask for a decree in his favour. When it is admitted that the plaintiff was a minor and that his mother was a young widow and there were no near male relations, who could give independent advice to her when it is remembered that the first defendant knew all about this property from the very beginning, and when it is also remembered that defendants' witness No. 1 who was supposed to give disinterested advice acted, to say the least, most carelessly, for he says in his evidence, 'I did not look into the extent as to how many kulis it was. I did not then question any of them for what sum the land opposite to the Court-house has been bought and how much had been spent on it,' arid when we find a great disparity in extent between the extent of the plaint land, , and that of the land opposite to the Courthouse and when there is no ostensible reason for the division except the wish of the first defendant, the onus shifts and it is for the defendant to make out that the transaction was a fair one and not an unconscionable one. The plaintiff's father had acquired, as I said above; the timber depot land adjoining the road, and that would have given access to the plaint land from the road. When he acquired such a large plot as the plaint one measuring over two acres and when it is proved that houses were beginning to spring up from 1897 in or about the locality, one cannot but come to the conclusion that the plaintiff's father knew that the land would become valuable asa house-site in the course of a few years, that it would appreciate very much in value and that considerable profit would accrue by parcelling it out and selling the parcels to different people. That such an idea was also in the mind of the first defendant could be inferred from the fact that, soon after the purchase under Exhibit D, he began to purchase land adjoining the plaint land, vide Exhibits I and II. When the circumstances were such that the first defendant must have known that in the course of a few years the land would become very valuable as house-sites, it was most unfair on his part to take the whole of the plaint land for his share and give the plaintiff a small plot which, according to him, was worth Rs. 500.

5. Mr. T.R. Ramachandra Iyer very strenuously contended, that all we have to look to, is the value of the two plots on the date of Exhibit A in order to decide whether the transaction was a fair one or an unfair one. If the two plots were in the same locality and the environments were the same, his argument might be considered tenable. But when it is shown that one plot was more than 20 times the size of the other, and when it is remembered, that in a growing town of commercial importance open land inside the town may sooner 01 later become valuable as house-sites, it is impossible to resist the conclusion that the first defendant induced the plaintiff's mother and her advisers to take the small plot near the public buildings and got for himself a large plot likely to rise in value in a short time. In this connection, we have to see whether the plaintiff's mother had not only really disinterested, but sound advice. The defendants' 1st witness Mr. Viswasa Nadar is a respectable Second Grade Pleader, who is also the Government Pleader of Sattur. But a reading of his evidence shows that either he was careless of the interests of his friend's son or paid no attention to the contents of the document to which he put his signature as attesting witness. He does not seem to have made any enquiry as regards the extent of the plaint land or its value on the date of Exhibit A. He made no enquiries as to the value of the plot opposite the Court-house or the superstructure thereon, and his statement that some pariahs offered Rs. 3 to 5 per huh for a portion of the plot for a pathway without taking the trouble to find out how much he could realise by such sale is not of much value. As a Pleader he ought to have known that a minor's property could not be parted with unless some advantage was likely to accrue to him by such transaction; and his utter indifference as to what really happened to the minor's property shows that, however honest his intention might have been, his conduct was wholly against the interests of the minor. He, as a Vakil, ought to have advised the mother not to part with an extensive property which was likely to become valuable. He, as a local resident, must have known the state of things not far from his own house. That houses were beginning to spring up from 1897 about the plaint land, he must have been aware of, as it lay near the road going to the Railway Station. That the plaint site was attracting the attention of would-be buyers must have been known to him, and his not advising the plaintiff's mother not to part with the whole of the plaint site, I can only attribute it to sheer in difference and carelessness. He could very well have advised the mother to take a half share of the plaint property as well as a half share of the property opposite to the Court-house. Defendants' 2nd witness is an old retired First Grade Pleader of Sattur. His evidence that Chellaperumal Plllai was anxious to build an office or bungalow opposite to the District Munsif's Court-house cannot have any influence in deciding whether the transaction evidenced by Exhibit A was beneficial to the minor or not, because that wish had ceased with his death and no body in his senses could have imagined that the plaintiff, a young boy of seven years of age, was going to become a Vakil and was going to build an office opposite the Court-house. There is some inconsistency in the evidence of defendants' witness No. 1 when he says that the District Judge of Tinnevelly, Mr. Phillips, inspected the site for a Court-house in 1897. It is well-known that Mr. Phillips, now Phillips J., was District Judge of Tinnevelly from 1903 to 1906 and from the records called for from the office, it is found that the Government placed funds at the disposal of the D.P.W. for building a Court-house only in 1902. So it cannot be said to have been satisfactorily made out that Chellaperumal Pillai expected in 1900 that a Court-house was going to be built about 1905-1906 and he had an intention of building an office in front of the Court-house which did not exist before 1905. It may be that Chellaperumal Pillai had an idea of building an office on that road. But that is no ground for depriving the plaintiff of a very valuable house-site of considerable extent.

6. Mr. Ramachandra Iyer's main contention is that Exhibit A. was a partition arrangement and that a partition arrangement, unless it was brought about by fraud, or undue influence, ought to be upheld and he relies on Balkishen Das v. Ram Narain Sahu 30 C. 738 . No doubt, in a joint Hindu family partition at some time or other is likely to take place and the mere existence of minors cannot prevent a partition taking place. But it is always open to a minor member to show that the partition was not fair. Lord Davey delivering the judgment of their Lordships of the Privy Council observes at page 752: 'There is no doubt that a valid agreement for partition may be made during the minority of one or more of the co-parceners. That seems to follow from the admitted right of one co-parcener to claim a partition; and (as has been said) if an agreement for partition could not be made binding on minors, a partition could hardly ever take place. No doubt, if the partition was unfair or prejudicial to the minor's interests, he might, on attaining his majority, by proper proceedings, set it aside so far as regards himself.' This is the principle which governs partitions in Hindu joint families--it is open to a minor member to show that a partition was unfair or prejudicial to the minor's interests. The case of a co-owner claiming a division with a minor stands on a, slightly different footing. In a joint Hindu family there may be a number of members and it may not be in the interests of the family to keep them joint. But in the case of a co-owner who is only interested along with a minor in one or more items of property, when division is effected, such division must be a fair one and not prejudicial to the interests of the minor. The case of an alienation by a minor's guardian stands on a different footing. In order to justify the alienation of a minor's property the tests laid down in Hunoomanpersaud Panday v. Babooee Munraj Koonweree 6 M.I.A. 393 : 18 W.R. 81n. should be satisfied--the actual pressure on the estate, the danger to be averted or the benefit to be conferred. But the case of a co-owner asHng for a division of properly belonging to himself and a minor occupies a position midway between that of partition in a joint family and that of alienation by the guardian of a minor. Whenever an adult person deals with a minor through the minor's guardian, it is his duty to see that the transaction is a fair one and that the minor is not prejudiced in any way by any act or omission on his part. Reliance was also placed by the appellant on Yeechuri Ramamurthy v. Yeechuri Ramamma 33 Ind. Cas. 961 : 30 M.L.J. 308 : 3 L.W. 322, as supporting the contention of the appellant. Srinivasa Ayyangar, J., in delivering the judgment of the Court observed at page 311 page of 30 M.L.J.--[Ed.] 'Partition amongst the members of the family is a family arrangement and is generally resorted to in order to keep peace in the family or preserve the family properties; and the principles applicable to family settlements are applicable to partitions among the members of a family. There must, of course, be equal knowledge on the-part of the members and there must not be any overreaching or fraud.... In some cases the very nature of the transaction or the method of division may show that it was unfair or prejudicial to the interests of the minor and in such cases the burden winch was on the Plaintiff in the first instance may be Sited at once. The burden may also be shifted in cases where the facts are specially in the knowledge of a particular party (See Section 106 of the Evidence Act).' This case instead of supporting the appellant's contention is against it. The ruling in Nallappa Reddi v. Balammal 2 M.H.C.R. 182 was strongly pressed upon our attention by the appeallant; there a minor on attaining majority sought to set aside a partition in which he was represented by his mother as guardian. The learned Judges say: 'In this case the plaintiff and his brothers appear to have been represented in good faith by their mother and natural guardian, and there in nothing to indicate fraud, or that any undue advantage was taken of the plaintiff's minority, or of the sex of their mother.' It appears that the plaintiff's branch in that case obtained only one muttah as its share while four muttahs were allotted to the other branch, and it was contended that the division was unequal on the face of it. Dealing with this contention the learned Judges observe, 'there is no evidence of the relative value of these five muttahs' and in the concluding portion of the judgment says that 'no such gross inequality has been shown, as would justify us in setting aside the division of 1837 on this ground.'

7. It was urged by Mr. T. Rangachariar for the first respondent's legal representative that a tenant-in-common or a co-owner was entitled to be given his share in every item of the property belonging to himself and other co-owners and he relied upon Debendra Nath Bhattacharjee v. Hari Das Bhattacharjee 7 Ind. Cas. 844 : 13 C.L.J. 322 : 15 C.W.N. 552; Ashanullah v. Kali Kinkur Kur 10 C. 675 Mahomed Ibrahim v. Haji Mahomed Ibrahim 7 Bom. L.R. 482 and Moideensa Rowthen v. Mhaammad Kasim Row then 28 Ind. Cas. 895. It is no doubt proper that, wherever practicable, co-proper should be given a share in each item of property but this doctrine should not be too strictly applied by Courts. Where property cannot be divided conveniently or where division into small portions would affect the value of the property prejudicially it is inequitable that Courts should grant to the various members, property which according to his estimate would be equal in value, but where property could be divided without in any way affecting its utility or its commercial value into a number of plots, it is proper that each co-sharer should have a slice of it according to his share. In India the feeling against parting with immoveable property is strong and Courts should give due regard to it in effecting division of family or ancestral property. The principles governing cases of a partition in joint Hindu families cannot apply to cases of co-owners as is seen from Moideensa Rowthen v. Mahammad Kasim Rowthen 28 Ind. Cas. 895, where Ayling and Tyabjee, J J., observed at page 896 : 'It is, therefore, futile to describe a suit in which one heir claims to receive his share of the property of the deceased from another heir as a suit for partial partition and to say that, therefore, the suit is not maintainable. Both the terminology and the principles of the Hindu Law are in such a case inapplicable. This point must be kept distinct from the questions that may arise when an heir claims his share of the property of the deceased, and when he in reality ought to institute a suit for administration he asks for what is styled 'partial partition.' In such a case it would be a question for the Court whether in order to avoid multiplicity of suits the plea of any defendants ought not to be given effect to in order that the whole estate of the deceased should be administered and in due administration should be partitioned for once. But the question cannot permit of a hard and fast Rule to govern all circumstances.'

8. It is clear, therefore, that a co-owner can bring a suit for division of a particular item of property and any subsequent suit for division of other items would not ordinarily be barred. It is unnecessary to consider the contention of the respondent that a person effecting a division of property with a minor is an alienee of the property and, therefore, the necessity for it and the advantage to be gained by it should in all cases be proved by the party dealing with the minor. Each case must depend upon its circumstances. The learned Subordinate Judge, no doubt, considered that it was the duty of the first defendant to prove the necessity for the division in 1904 and the advantage to be gained by the plaintiff thereby. That is not a correct view of the law. All that he had to show was ' that it was a fair transaction and the guardian acting on behalf of the plaintiff had all the information which he himself could have had if he had taken the trouble to get it.

9. The decision reported in Kerammulla Miah v. Keramutulla Meah 49 Ind. Cas. 86 : 23 C.W.N. 118 may seem to support the respondent's contention but a careful reading of it would show that it cannot support such a wide proposition.

10. Justice New bould in delivering the judgment of the Court observed at page 123 page 23 C.W.N.--[Ed.]: 'There its nothing in the doctrine of family arrangements opposed to the general principle, that, when it is sought to bind a minor by an agreement entered into on his behalf, it must be shown that the agreement was for the be refit of the minor. If improper advantage has been taken of the minor's position a family arrangement can be set aside on the ground of undue influence or inequality of position or one of the other grounds which would vitiate such an arrangement in the case of adults. But where there is no defect of this nature the settlement of a doubtful claim is of as much advantage to a minor as to an adult and where a genuine dispute has been fairly settled, we hold that the dispute cannot be re-opened, solely on the ground that one of the parties to the family arrangement was a minor.' It in quite clear, therefore, that when an arrangement is not fair, it cannot he for the benefit of the minor.

11. Now let us see from the evidence on record whether the arrangement under Exhibit A could have been for the benefit of the minor. Exhibit, E dated 8th October 1905, throws considerable light on the state of things in 1905. Exhibit A was dated 15th July 1904. According to that document 11,000 kulis are valued at Rs. 500. In Exhibit F which was executed about 5 months after Exhibit A we find that two hundred kulls were valued at Rs. 100 and the vendee was asked to leave 2 yards of space along the house to be built for a toad way. So it may be fairly taken that a hull at that time in a plot of land which had no access to the public road was worth at least annas eight. So in 1905, 11,000 kulls must have been worth at least Rs. 5,500. Could it be said that the value of the land which was only Rs. 500 in July 1904 suddenly jumped up to Rs. 5,000 or Rs. 6,000 in October 1905? Exhibit F clearly shows that people were beginning to consider that the plaint land could be utilised for house-sites. On the date of Exhibit E the first defendant was not in a position to give his vendees access to public roads, but he was hoping to buy land to the south and north of plaint land in order to lay out roads to connect it with public roads. Unless there is specific evidence that on the date of Exhibit A the price of plaint land was only Rs. 500 and had not risen even by a few rupees above the price, paid for it in 1900 it would be impossible to hold that the price remained stationary; considerable light is thrown by the number of purchases of small plots of the plaint land by different persons in 1900. There were no less than 20 sales by the first defendant, vide documents Exhibits XIX, XX, XXIV, XXV, XXVI, XXVIII, XXX to XXXVI and houses began to be built Soon after and the evidence is that more than So houses, some of them worth from Rs. 2,000 to Rs. 3,000, had been built on the plaint land prior to the date of suit. In these circumstances, it can be safely assumed that the plaint land was worth much more than Rs. 500 the nominal value put upon it in Exhibit A. There is, however, one important fact--its potential value the plaintiff's father had bought the timber depot land in order to give access to the road. If the first defendant had only dealt fairly with the plaintiff, he would have told the plaintiff's mother that there was the Marakadi land belonging to her husband which could be made 'use of for the purpose of making a road-way to the plaint site. His suppression of that knowledge from the plaintiff's mother, I consider, is sufficient to vitiate the whole transaction. He has not gone into the witness-box to tell the Court why be demanded a division in 1904 and under what circumstances Exhibit A carne to be executed and that he acted bona fide with due regard to the interests of the minor. I, therefore, hold that the transaction evidenced by Exhibit A was not a fair one but an unconscionable one brought about by the suppression of facts which should have been brought to the notice of tie plaintiff's guardian. It is unnecessary to notice in detail the other cases quoted by the appellant as those cases turned upon the facts proved. In Natesa Iyer v. Rama Iyer 10 Ind. Cas. 221 : 9 M.L.T. 498 , which was a second appeal, there was a finding of fact and the learned Judges observed that strong reason for supporting the arrangement under discussion beneficial to the plaintiff WES available and that the settlement Was fair and prudent. In Siddick Hajee Sumar Sait v. Mahomad Hussain Sait 37 Ind. Cas. 728 : (1916) 2 M.W.N. 341 Abdur Rahim, Officiating Chief Justice, observed at page 525 Pages of 4 L.W.--[Ed.] 'as there is really no allegation that the settlement was not bona fide, or that the account, so settled is impeachable because to any substantial errors I see no reason why the settlement should not be held binding' and Scshagiri Aiyar, J., observed at page 527 Pages of 4 L.W.--[Ed.] that 'insas-much as there is no allegation that this settlement was not come to after careful Scrutiny of the accounts, there is no reason to doubt that this sum did not represent the actual amount due to the minor on the date of the settlement.'

12. The next contention urged by Mr. Ramachandra Ayyar was that no preliminary decree was passed. This can be no objection to the decree as it stands, as it gives the plaintiff only the value of his share. There is no direction to divide the plaint property by metes and bounds. The plaintiff very rightly gave up his claim to a moiety of the plaint property and was content to receive its market-value, inasmuch as a number of people, about 80, had built houses on the plaint land. Mr. Ramchandra Aiyar further contended that the plot opposite the District Munsif's Court-house was not brought into the hotchpot. The learned Subordinate Judge directed that the plaint should be amended by including it. Evidently, owing to some oversight, it was not included. The plaintiff's legal representative does not object to the first defendant getting his share of it. In respect of that there will be a preliminary decree for division by metes and bounds.

13. Mr. Ramachandra Aiyar further objected to his client being, made responsible for the whole of the decree amount as he had realised by sale of the plaint property a much smaller amount. I think there is some force in this contention. The plaintiff could have insisted upon his getting possession of the plaint property raid could also have insisted upon defendants other than the first defendant removing their superstructures because the transaction under Exhibit. A was wholly void so far as he was concerned. But the plaintiff was well advised in not asking that the land should be vacated by the defendants and it is in the interests of the defendants that a money-decree w as passed in favour of the plaintiff. The land has considerably risen in value since the purchase by the various defendants on account of their having built houses on the plots purchased by them. The Subordinate Judge has found that the alienees from 1st defendant were not bona fide purchasers for value. I think the Court could very well exercise its discretion in the circumstances by directing the defendants ether than the 1st defendant to bear a proportionate share of the value of the property after deducting the actual amount paid by them. In other words, the 1st defendant is liable as between himself and the other defendants only to the extent of the amounts received by him as the price of plots sold to them. The plaintiff could execute his decree against the 1st defendant and other defendants for the whole amount. But the other defendants could claim as contribution from the first-defendant amounts not exceeding the amounts actually paid by them for buying the property. A note should be made in the decree to this effect. The question of limitation was not pressed by Mr. Ramachandra Aiyar. He did not challenge the finding of the lower Court on the point.

14. Subject to the modification as regards the other plot, the appeal is dismissed with costs of the first respondent's legal representative.

15. Mr. Rangachari pressed his Memorandum of Objections and claimed a higher amount than that allowed by the Subordinate Judge. There is no clear evidence that the value of the plaint land was anything more than that estimated by the Subordinate Judge. The evidence of defendants' witness No. 4 is not at all satisfactory; and the few documents, such as Exhibits XIV (a) and XXIX, do not throw any light on the actual value of the plaint land on the date of the plaint. I see no reason to disturb the finding of the learned Subordinate Judge as regards valuation. In the result, the Memorandum of Objections is dismissed with costs.

Spencer, J.

16. I agree.

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