T.N. RAJASEKARversusN. KASIVISWANATHAN AND ORS.

A                                T.N. RAJASEKAR
                                         v.
                       N. KASIVISWANA THAN AND ORS.

                                   JULY 28, 2005

B                [RUMA PAL AND DR. AR. LAKSHMANAN, JJ.]



        Hindu Succession Act, 1956-Section I I-Distribution of property
  among Class II heirs-Properties valued at Rs. 3 crores-Five heirs-
C Appellant, one of the heirs, filed suit for partition-Fina/ decree passed by
  High Court-House property valued at Rs. 1.5 crores allotted to appellant,
  though his I/5th share amounted to only Rs. 60 lacs~On appeal, held:
  Owelty amount of Rs. 90 lacs has to go to other four heirs (respondents)-
  Pursuant to directions of this Court, appellant has already deposited Rs.60
  lacs-He is now directed to pay balance Rs. 30 lacs with interest to
D respondents whereupon peaceful vacant possession of the said house property
  shall be handed over to appellant.

          Owner of certain properties died unmarried and issueless. Appellant
    and the respondents succeeded to his estate as Class II heirs under the Hindu
E   Succession Act, 1956. Appellant filed civil suit on the original side of High
    Court for a preliminary decree for partition claiming ~/5th share for himself ·
    and for other incidental and ancillary reliefs. Single Judge passed preliminary
    decree, directing the resr.wndents to remit a sum of Rs. 37,68,000 into the
    Court and render accounts. Division Bench however directed the respondents
    to deposit only l/Sth share of Rs. 37,68,000 i.e. Rs. 7,53,000. It held that
F   there was no question of rendering accounts from the date Power of Attorney
    was given by the original owner and that the properties of the original owner
    which existed on the date of his death alone should be divided.

        Subsequently, on application of the appellant, the Single Judge passed
  final decree assessing the value of the properties to be Rs. 2,98,79,569.
G Appellant was allotted suit item No. 6 i.e. a house property valued at Rs.
  l,50,00,000, though his l/Sth share was only Rs. 59,75,914. The owelty
  amount of Rs. 90,24,086 was directed to be adjusted from the land acquisition
  compensation amount due to the appellant. Division Bench set aside the
  direction for adjustment of owelty from the land acquisition compensation
H                                       884
          T.N. RAJASEKAR v, N. KASIVISWANATHAN [LAKSHMANAN, J.)              885

  amount, but in other respects confirmed the decree of the Single Judge. Hence     A
  the present appeals.

          Disposing of the appeals, the Court,

         HELD: 1. The Division Bench of High Court elaborately considered the
  -valuation arrived at by the Advocate Commissioner and the valuation-of Item      B
   No. 6 suggested by the appellant and the respondent and the decisions arrived
   at by the Single Judge and ultimately held that there is no infirmity in the
   determination and value of Item No. 6 as made by the Single Judge. There is
• no infirmity in the judgment passed by the _Division Bench. It is confirmed
   subject to directions as below mentioned. [889-C]
                                                                                    c
        2. The Single Judge passed the final decree assessing the value of the
  properties at Rs.2,98,79,569 and towards the share of the appellant he was
  allotted Item No.6 the house property, the value of which was assessed at
  Rs.1,50,00,000. But the appellant's 1/5th share comes to Rs.59,75,914. The
  balance sum of Rs.90,24,086 has to come to the other four legal                   D
  representatives. Appellant, pursuant to the directions of this Court, has
  deposited Rs.60,00,000 in this Court. Deducting the sum of Rs.60,00,000,
  the appellant is now directed to pay the balance ofRs.30,24,086 with interest
  to the respondents as owelty amount as has been directed in the lower Court's
  order. On deposit of Rs.30,24,086, the respondents shall hand over the peaceful
  vacant possession of the suit Item No. 6 to the appellant. [889-D, E, F, G)       E

          CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 4561-4564 of
  2005.

        From the Judgment and Order dated 11.3.2003 of the Madras High Court        F
  in O.S.A. Nos. 23, 24/2003 and Cross Objections Nos. 4 and 5 of 2003.

                                       WITH

       S.D.N. Vimalanathan, S. Raju, Ms. Anjani Bansal and P. Narasimhan for
  the Appellant.
                                                                                    G
          A.TM. Sampath and Ms. T.S. Shanthi for the Respondents.

          The Judgment of the Court was delivered by

          DR. AR. LAKSHMANAN, J. Leave granted.
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    886                     SUPREME COURT REPORTS [2005) SUPP. I S.C.R.

A          The above appeals were preferred by the appellant/plaintiffagainst the
    final judgment dated 11.03.2003 passed by the High Court of Judicature at
    Madras in O.S.A. Nos. 23 and 24 of 2003 and Cross Objection Nos. 4 and 5
    of2003. Respondent Nos. 1-3 T.N. Kasiviswanathan, T.N. Natarajan and T.N.
    Shanmughavel and the appellant - T.N. Rajasekar are brothers. The fourth
    respondent Kalyani Gopalan is the sister of the appellant. The appellant's
B   brother T.N. Ganapathi was sick and died on 06.05.1997 leaving the appellant
    and the respondents herein as his legal representatives of Class-II heir as per
    the Hindu Succession Act.
                                               '              .
          The suit property is the absolute property of T.N. Ganapthi. He died
C   unmarried and issueless. The appellant and the respondents have succeeded
    to his estate.

           During the pendency of the appeal, the appellant T.N. Rajasekar and the
    first respondent T.N. Kasiyiswanathan died. Their legal representatives were
    brought on record in I.A.No. 1 of2005 and I.A.Nos. 5-8 of2004 respectively.
D
           The appellant filed C.S. No. 110 of 1999 on the original side of the High
    Court for a preliminary decree for partition claiming l/5th share for himself and
    for other incidental and ancillary reliefs. The respondents have not filed any
    written statement. The learned single Judge passed the preliminary decree on
    11.09.2000. The single Judge directed the respondents herein to remit a sum
E   of Rs.37,68,000 into the Court and render accounts. Aggrieved by this order,
    the respondents herein preferred O.S.A. No. 78 of 2001. The Division Bench
    of the High Court directed the respondents to deposit only l/5th share of Rs.
    37,68,000 i.e. Rs.7,53,000 which is the due share of the appellant and that there
    was no question of rendering accounts from the date of Power of Attorney
p   given by late T.N. Ganapathi. The Division Bench by judgment dated 04.04.2001
    directed that the properties of late T.N. Ganapthi which existed on the date
    of his death alone should be divided.

          The appellant herein filed application No. 204 of2001 for passing a final
    decree and for appointment of an Advocate Commissioner. On 05.08.2002, the
G   learned single Judge passed the final decree assessing the value of the
    properties of Rs.2,98,79,569 out of which the appellant's l/5th share was
    Rs.59, 75,914. Towards the share of the appellant, he was allotted item No. 6
    of the schedule mentioned property i.e. House bearing Door No. 16, Dr.
    Vasudevan Street, Kilpauk, Chennai I 0 and the value of the house was
H   assessed at Rs.1,50,00,000. Thus it is evident that the appellant was allotted
    the house in excess of his share ofRs.59,75,914, the difference of which i.e.
          T.N. RAJASEKAR v. N. KASIVISWANATHAN [LAKSHMANAN, J.]                 887

    value of the house allotted deducting value of his share has to go to the other    A
    four legal representatives i.e. Rs.90,24,086. The learned single Judge also
    ordered that this amount of owelty to be adjusted from the land acquisition
    compensation amount due to the appellant/plaintiff herein.

          As there was no specific direction in the judgment of the learned single
    Judge regarding the allotment of properties to the respondents, the                B
    respondents filed application No. 4307 of 2002 for specific order on other
    items of the properties to them. On the application of the respondents for
    seeking specific direction for allotment of properties, the foamed single Judge
    ordered in the following terms on 22.11.2002.

            (i)   Item No. 6 was allotted to the plaintiff towards his l/5th share;
                                                                                       c
            .
           (ii)   The owelty amount ofRs.90,24,086 being the excess value of Item
                  No.6 allotted to the petitioner has to be paid by the plaintiff to
                  the defendants as owelty;

           (iii) Item Nos. I to 5, 7 as well as owelty amount in relation to Item D
                 No.6 allotted to the respondents representing their 4/5th share of
                 the schedule mentioned property;

           (iv) The defendants should pay 4/5th share of Rs.28,681 to the plaintiff.
                This has already paid to the Advocate Commissioner by the              E
                plaintiff.

          Aggrieved by this judgment and order both in the application Nos. 204
    of2001and4307 of2002, the respondents filed OSA 23 of2003 and 24 of2003
    respectively. The appellant filed Cross Objections for the Commissioner's
    Report and also reply affidavit to OSA Nos. 23 and 24. These appeals have F
    been disposed of by the Division Bench of the 'High Court on 11.3.2003
    allowing the
               .. appeals filed by the respondent partly by setting aside the
    direction issued by the learned single Judge to adjust the owelty amount from
    out of the land acquisition compensation proceedings. The Bench directed
    that the parties can get the compensation amount independently according
    to their shares as and when the amounts are deposited by the State G
    Government. In other respects, the decree of the learned single Judge was
    confirmed and the cross objections were dismissed. It is now seen from the
    rejoinder affidavit that all the sharers have withdrawn their respective land
    acquisition compensation amounts.

                                                                                       H

T
    888                    SUPREME COURT REPORTS [2005] SUPP. I S.C.R.

A          Against the above judgment, the appellant preferred the Special Leave
    Petition Nos. 14332-14335 of2003.

         We heard Mr. S.D.N. Vimalanathan, learned counsel for the appellant
    and Mr. A.T.M. Sampath, learned counsel for the respondents. Mr. S.D.N.
    Vimalanathan made the following submissions:-
B
           (a)   The order of the learned trial Judge and of the Division Bench
                 is not correct in stating the rough value given by the appellant/
                 plaintiff in the plaint as Rs. I ,50,00,000 for the purposes of
                 valuation in the plaint as the valuation given in the plaint is
                 tentative and not based on the market value of the site and
c                building on the date of filing of the plaint;

           (b)   All the immoveable properties are valued by the approved
                 engineer who was the retired Chief Engineer for which no
                 objections were raised by either parties;
D          (c)   There cannot be any estoppel against the statute as the non-
                 judicial stamp papers to be supplied cannot be on the value
                 stated in the plaint.

         Concluding his arguments, the learned counsel submitted that this
E  Court should accept the value of Item No. 6 as stated by the Commissioner
   and the owelty amount be arrived at and as the appellant has deposited over
   and above their value to the tune of Rs.60 lacs, suitable directions may be
   passed for adjustment. The learned counsel also submitted that the learned
 · Judges of the Division Bench have not answered many of the contentions
   raised before them and; therefore, such an omission by the learned Judges
F of the Division Bench amounts violation of the principles laid down under
   Order XXVI Rule 13 ofC.P.C. and Order XXXXI Rule 31 and Rule 33 and the
   original side rules of the High Court and since there is an apparent omission
                                                                                       1
   to answer the questions raised in the OSAs and the cross objections except
   Item No. 6 and the said infirmities is not legally sustainable, the matter may
G be remitted for a fresh consideration before the Division Bench except Item
   No.6 of the plaint schedule.

           Per contra, Mr. A.T.M. Sampath, learned counsel for the contesting
    respondent submitted that the appellant himself valued Item No.6 at
    Rs.1,50,00,000 both in the plaint as well as in the final decree application and
H   that the Court appointed Commissioner recorded the same in his report with
      T.N. RA.TASEKAR v. N. KASIVISWANATHAN [LAKSHMANAN, J.]                889

reference to Item No.6 of the suit item. He would also further submit that since   A.
the learned Judges of the Division Bench have elaborately dealt with all the
submissions made by both the parties there is no need or necessity to remit
the matter for fresh consideration insofar as other items of the plaint schedule
properties are concerned.

      We have perused the entire pleadings and all the annexures filed along       B
with the appeals. We have also carefully perused the judgment under appeal.
We are of the opinion that there is no infinnity in the judgment passed by
the learned Judges of the Division Bench. The learned Judges in paragraphs
16 and 17 have elaborately considered the valuation arrived at by the advocate
Commissioner and the valuation of Item No.6 suggested by the appellant and         C
the respondent and the decisions arrived at by the learned single Judge and
ultimately held that there is no infinnity in the detennination and value ofltem
No.6 as made by the learned single Judge.

       As already noticed, the learned single Judge passed the final decree
assessing the value of the properties at Rs.2.98,79,569 out of which the D
appellant's I/5th share was Rs.59,75,914 and towards the share of the appellant
he was allotted Item No.6 the house property situated at Kilpauk, Chennai,
the value of which was assessed at Rs.1,50,00,000. The appellant's I/5th share
comes to Rs.59,75,914. The appellant, pursuant to the directions of this Court,
have deposited Rs.60,00,000 in this Court whiclJ, is now deposited in short E
tenn fixed deposit with the UCO Bank, Supreme Court Compound, New, Delhi.
Deducting the value of the house allotted to the share of the appellant, the
balance sum ofRs.90,24,086 has to come to the other four legal representatives.
Deducting the sum of Rs.60,00,000 which was deposited by the appellant
earlier, the appellant is now directed to pay the balance of Rs.30,24,086 with
interest to the respondents as owelty amount as has been directed in the F
lower Court's order. The appellant wants three weeks time to deposit the same
in this Court. We, therefore, grant three weeks' time from today to deposit the
balance of Rs.30,24,086 in the UCO Bank towards the credit of the present
proceedings in this Court. The respondents are at liberty to withdraw the
entire sum deposited with accrued interest from the UCO Bank, Supreme
Court Compound, New Delhi on production of the copy of this judgment. On G
deposit of the balance amount of Rs.30,24,086, the respondents shall hand
over the peaceful vacant possession of the suit Item No. 6 i.e. House bearing
No. 16, Dr. Vasudevan Street, Kilpauk, Chennai 600 010 to the appellant
herein/plaintiff within one week thereafter. The above directions shall be
                                                                                   H
    890                  SUPREME COURT REPORTS [2005) SUPP. I S.C.R.

A complied with punctually by both parties.
          In the result, the judgment of the Division Bench of the Madras High
   Court is confirmed subject to the directions mentioned in paragraphs supra.
   The appeals stand disposed of accordingly. There would be no order as to
   costs.

   B.B.B.                                               Appeals disposed of.