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2002(3) Supreme 484
SUPREME COURT OF INDIA
(From Karnataka High Court)
Umesh C. Banerjee & Y.K. Sabharwal, JJ.
M.L. Subbaraya Setty (Dead) by LRs. &: Ors. -Appellants
versus
M.L. Nagappa Setty (Dead) by LRs. and Ors. -Respondents
Civil Appeal No. 2892 of 2002
(Arising out of SLP (C) No. 7690 of 2000)
With
C.A. Nos. 2893-2895 of 2002
(Arising out of SLP (C) Nos. 7762-7764 of 2000)
Decided on 23-4-2002
Counsel for the Parties :
For the Appearing Parties : Shanti Bhushan, Rama Jois, P. Krishnamurthy, Sr. Advocates, Amit Dhingra, Gopal Jain, Mrs. Yugandhara Jha, Sanjay Pathak, P.H. Parekh, P.R. Ramasesh, K.G. Raghavan, Mrs. Shiraz Contractor Patodia, Dhanyam Chinnappa, Anirudh, Ms. Priyanjali Yadav, Advocates.
Held : We may also clarify that the direction that the present possession of the parties shall be respected as far as possible also does not mean that if the plaintiff is not in possession of any immovable property and the same are in possession of the defendants, he could not be allotted the immovable property even though he is so entitled as per his share. If that was so, the words "as far as possible" in the said direction would become redundant. When the Court directs that the present possession of the parties shall be respected, it means that if partition of the property is to be effected, then as far as possible the person in possession of a property should be allowed to retain it by equalization of share but it does not mean that a person out of possession of all immovable properties should not be allotted any part of the immovable property whatsoever. In view of the earlier decision and aforesaid discussion, it is not possible to accept the contention that the plaintiff is not entitled to a share in the joint family immovable properties. (Para 34)
(ii) Civil Procedure Code, 1908-Order 20 Rule 18 and Order 26 Rules 13 and 14-Valuation of properties in suit for partition-Law as to date of valuation whether date of filing suit, date of preliminary decree or date of passing of final decree (the last)-Plaintiff holding in excess of his 2/19th share-Effect-Accounting.
Held : Another question to be determined is as to the date of valuation of the properties in a suit for partition. Ordinarily, it has to be the date of the passing of the final decree and not the date of filing of the suit for partition. In a given case, however, there may be exception of this general rule. (Para 27)
The effect of the plaintiff holding excess of 2/19th share would be that the plaintiff would be accountable for the value of those shares as on the date of the final decree. (Para 30)
Held finally : The actual partition is effected by passing of the final decree. The valuation has, thus to be as on the date of final decree. (Para 32)
(iii) Suit for Partition and Income of Joint Family Properties-Ancesstor died in 1936-Dispute arose in 1938-Referred to Arbitrator-On 11th July 1940 arbitrators made special provisions in agreement with the parties-The parties failed to carry out those directions-Suit for partition filed in 1948-Plaintiff had possession of bonds, shares and securities in 1940-Non-availability at the time of partition-What is the effect-Are the parties in possession of joint family properties liable to give accounts? (Yes)-For what period-Final decree proceedings to be expedited-High Court affirmed-Appeal dismissed. (Paras 36 & 37)
Held : The effect of non-availability of shares, bonds and securities by itself is not to deprive the plaintiff of his 2/19th share if on valuation he is otherwise entitled thereto. Parties in possession are liable to give accounts for the rents, income, profits and dividends in respect of the joint family property to others from 11th July, 1940 up to passing of the final decree. (Para 35)
JUDGMENT
Y.K. Sabharwal, J.-Leave granted.
2. Applications for substitution allowed.
3. The dispute in these appeals relates to the partition of the estate of the family of one Lachiah Setty - one of the wealthiest families in the erstwhile Mysore State. The family had extensive business in Coffee and other commodities. The family possessed considerable movable and immovable properties including Coffee estates. Lachiah Setty died in the year 1936. Despite the desire expressed by him that even after his death, his children should live in harmony, united and without any difference as he felt that the vast properties had been acquired on account of the family remaining united, the disputes started between brothers within about two years of his death, i.e., in 1938.
4. The disputes were referred to three arbitrators for division of the family properties. The arbitrators entered upon reference on 1st April, 1940. The arbitration proceedings were, however, not very smooth. Differences arose with regard to the management of the family properties business. The elder brother Nagappa Setty was disinclined to remain in the family house along with other brothers. He was on one side and other brothers and mother on the other.
5. On 11th July, 1940, the arbitrators made a special provision, in agreement with the parties, with regard to the business. Securities of the value of Rs.1,49,833/- were found in the hands of Nagappa Setty and of the value about Rs.1,45,616/- in the hands of his other brothers. The stock-in-trade was valued at Rs.1,32,495/-. There was no partition as such of the securities and stock-in trade, but on an ad hoc basis, the arbitrators directed that Nagappa Setty should retain with him securities of the value of Rs. 55,337/- and hand over the rest to other brothers. The other brothers, on the other hand, were directed to make over to Nagappa Setty stock-in-trade, worth Rs. 24,840/-. The parties, however, failed to carry out those directions although, in the first instance, they had agreed to the arrangement.
6. During arbitration proceedings, one of the arbitrator died. The other co-arbitrators were requested to continue with the arbitration, but they could not make much progress. Allegations were made about the partiality against one or the other of the arbitrator and since the arbitration was not completed by certain date, all attempts at arbitration aborted.
7. In the year 1948, Nagappa Setty filed against his brothers and mother a suit for partition of his share and the income of the joint family properties. He claimed in that suit 1/4th share on the basis of Will of Lachiah Setty. The Will was challenged by other brothers being inoperative either as a valid will or a valid family arrangement. According to them, the properties were ancestral joint family properties which Lachiah Setty was incapable of disposing of by will. There was no occasion also for execution of a family arrangement and, hence, it was pleaded that will could not be regarded as a family arrangement.
8. In the aforesaid suit, it was held that the suit properties were the ancestral joint family properties which could not be disposed of by Lachiah Setty by Will and that there was no family arrangement and even if it were to be deemed to be a family arrangement, it was void. The High Court disagreeing with the District Court on the question of Nagappa Setty share being 1/19th held that he was entitled to 2/19th share in the properties and not 1/19th share as held by the Trial Court. Nagappa Setty died on 20th February, 1949. His heirs and legal representatives have been prosecuting the suits and the appeals. The members of the branch of Nagappa Setty are respondents in these appeals. Defendants to the suit filed in 1948 are also represented by their heirs and legal representatives on account of deaths from time to time. They are appellants in these appeals.
The suit was decided in the year 1956. The appeals therefrom were decided by the High Court
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