R.P. Mookerjee, J.
1. This appeal is directed against a final decree in a suit for partition. Some of the defendants have come up to this Court. In view of the Order which we are passing it is not necessary for us to deal with all the questions which have been raised in this Court.
2. The shares of the parties have been determined by the preliminary decree. There are four items of property: (1) 13, Nazir Lane, (2) 8, Rangalal Street, (3) 33-1 and 33-2 Nazir Lane, and (4) 4, Gopal Doctor Road, all being in Kidderpur, Calcutta. A Commissioner for partition was appointed under R. 13 of Order 26 of the Code of Civil Procedure. Questions were raised by the parties both as regards valuation and as regards allotment. Various sittings were arranged by the Commissioner. Experts were examined on behalf- of the two contending parties. The Commissioner fixed a lump sum value for 4, Gopal Doctor Road and gave detailed valuation about the other items of property.
3. In the final report, as submitted by the Commissioner, it is stated that both the parties examined experts, and
'After the close of expert evidence the parties left the matter of valuation to me. In compliance with the wishes of the parties I have valued all the properties and declared them before the parties or their lawyers on 9-1-1951. The valuation settled by me is given below......'
On behalf of the plaintiff-respondents, it is contended that the Commissioner was appointed an arbitrator by the parties for fixing the valuation. The partiesare, therefore, not entitled to question the decision as given by the Commissioner. We may state that the Commissioner in his report has not referred either to the opinion of the experts or to any reasons in support of the valuation, as fixed by him, either generally or in particular. We do not think that the Commissioner was appointed as an arbitrator by the parties and that they are bound by the decision given by him. When a Commissioner is appointed under Rule 13 of Order 26, Civil P.C., he is to consider the claims made by the contesting parties and such evidence as is produced before him. He has, therefore, to come to his decision for being placed before the Judge. In the present case, the parties could not come to an agreement, and therefore, the matter was to be left for the decision of the Commissioner. That is all that was done, and nothing more than that. We do not think that it would have been proper for the Commissioner also to act formally as an arbitrator in a matter of thisdescription.
4. Before the learned Subordinate Judge, objections were filed to the final report as submitted by the Commissioner. The objections filed by the plaintiffs were not and are not pressed by them now. The defendants, however, press their objections. Attempts were made by them to cite witnesses before the learned Subordinate Judge. They were not allowed to adduce any oral evidence. The learned Subordinate Judge held that after the parties had sufficient opportunity to adduce evidence before the Commissioner, it would be waste of time to allow them to examine witnesses afresh before the Court, and he proceeded to hear the arguments in support of the objections and gave his final decision accepting the report as made by the Commissioner.
5. The general view expressed by the learned Subordinate Judge cannot be supported. Under Rule 14 of Order 26, Civil P.C., which, is in the followingterms:
'14. (1) The Commissioner shall, after such inquiry as may be necessary divide the property into as many shares as may be directed by the order under which the commission was issued and shall allot such shares to the parties, and may, if authorised thereto by the said order, award sums to be paid for the purpose of equalizing the value of theshares.
(2) The Commissioner shall then prepare and sign a report or the Commissioners (where the commission was issued to more than one person and they cannot agree) shall prepare and sign separate reports appointing the share of each party and distinguishing each share (if so directed by the said order) by metes and bounds. Such report or reports shall be annexed to the commission and transmitted to the Court; and the Court, after hearing any objections which the parties may make to the report or reports, shall confirm, vary or set aside the same.
(3) Where the Court confirms or varies the report or reports it shall pass a decree in accordance with the same as confirmed or varied; but where the Court sets aside the report or reports it shall either issue a new commission or make such other order as it shall think fit.'
There is no room for doubt that the Commissioner is to submit his recommendations in the form of a report, or reports. The Court after hearing any objections which the parties may make shall confirm, vary or set aside the report. The words at the end of sub-rule (2) that the Court 'shall confirm, vary or set aside the same' were substituted for the words 'shall either quash the same and issue a new commission or (where the Commissioners agree in their report) pass a decree in accordance therewith' as contained in Section 396 of the repealed Code under which the Court could only either accept the report or reject the report, but had no power to vary it. The introduction of the word 'vary' in sub rule (2) enables the Court to modify the report in a proper case. The Court, therefore, is required to examine the correctness or otherwise of the report, either in its entirety or in part. The provisions, as contained in sub-rule (2) of Rule 14, do not specify in detail the procedure to be followed by the Court. The proper procedure, in our view, should be that after the parties had adduced materials before the Commissioner, so far as the valuation of the property is concerned, the parties should not be allowed to adduce further expert evidence off hand. The Commissioner whose report is under consideration if proposed to be examined by either of the parties should be called. If after examining the Commissioner and cross-examining him by either party, the Court finds that materials are available either to accept the report on the face of it or to remit the report either to the old Commissioner or to a fresh Commissioner, the Court will proceed to do the same. If, however, the Court finds, it necessary that further materials should be made available, it may in an exceptional case allow fresh evidence as to the valuation being put before the Court.
6. The examination of the Commissioner when the report submitted by him is being questioned is essential, if any one of the parties requires it The omission by the learned Subordinate Judge in the present case to examine the Commissioner was not correct. He ought to have allowed the Commissioner to be called and then proceeded according to law.
7. 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. One Labanyabala Seal, a sister of one of the parties, is entitled to maintenance and we are told that a charge has been created in her favour in an earlier litigation. One of the properties now under partition, viz., 8, Rangalal Street, has been charged for the payment of such maintenance. For determining the market-value of the interest which is now to be burdened the amount of maintenance payable to Labanya has to be decided. The Commissioner made a reference to the Court and he had fixed Rs. 60/- per month as the proper maintenance. This amount, however, was fixed in the absence of the party concerned. Strictly speaking it may be possible for the Court now to effect partition of the property in question without consulting Labanya, but such a decision would not bind her. It is, therefore, desirable that the maintenance which is to be paid to her should be determined in her presence to avoid all future disputes and litigation. We direct that she be added as a party defendant, and the question of her maintenance be decided in her presence.
8. From the report submitted by the Commissioner it further appears that no reasons, either general or detailed, have' been given for fixing the valuations of the different items of property. It is desirable that the Commissioner should submit asupplementary report giving, the reasons for the recommendations made by him. After such a supplementary report is received, the parries will be given opportunity to file objections to the Commissioner's report. If any one of the parties prays for the examination of the Commissioner in Court that is to be allowed. As to what further evidence will be allowed to be adduced, if at all, is to be determined by the Court below after the Commissioner has ,been ex amined, arid the learned Judge has formed an opinion as regards the objections raised by the parties.
9. The result, therefore, is that this appeal is allowed. The judgment and decree passed by the Court below are set aside and the case is remitted to that Court for rehearing according to law in the light of the directions given above. Costs of this Court will be borne by the 'respective parties. Further costs will be in the discretion of the Court below.
10. I agree.