Back
2005 Supreme(SC) 959
2005(5) Supreme 222
Supreme Court of India
(From Madras High Court)
Mrs. Ruma Pal & Dr. AR. Lakshmanan, JJ.
T.N. Rajasekar —Appellant
versus
N. Kasiviswanathan & Ors. —Respondents
Civil Appeal Nos. 4561-4564 of 2005
(Arising out of SLP (C) Nos. 14332-14335 of 2003)
Decided on 28-7-2005
Counsel for the Parties :
For the Appellant : S.D.N. Vimalanathan, S. Raju, Ms. Anjani Bansal and P. Narasimhan, Advocates.
For the Respondents : A.T.M. Sampath and Ms. T.S. Shanthi, Advocates.
Headnote:Hindu Law—Suit for partition of property amongst Class II heirs under Hindu Succession Act—Preliminary decree passed determining 1/5th share of plaintiff-appellant—Final decree was passed assessing value of properties at Rs. 2,98,79,569—Out of which appellant’s share came to Rs. 59,75,914—Item No. 6 of schedule mentioned property was allotted towards share of appellant and its value was assessed at Rs. 1,50,00,000/- — Deducting Rs. 59,75,914 towards 1/5th share of plaintiff-appellant, appellant was directed to deposit Rs. 90,24,086/- as owelty—Appeal—Valuation arrived at by advocate Commissioner and valuation of property Item No. 6 suggested by appellant and respondents were taken into consideration—No infirmity in impugned judgment.
Held : We are of the opinion that there is no infirmity 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 the respondent and the decisions arrived at by the learned single Judge and ultimately held that there is no infirmity in the determination and value of Item 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 appellant’s 1/5th 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 1/5th 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 which is now deposited in short term 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 of Rs. 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 lower Court’s order. (Paras 13 and 14)
Judgment
Dr. AR. Lakshmanan, J.—Leave granted.
2. The above appeals were preferred by the appellant/plaintiff against 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 of 2003. 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 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.
3. The suit property is the absolute property of T.N. Ganapathi. He died unmarried and issueless. The appellant and the respondents have succeeded to his estate.
4. During the pendency of the appeal, the appellant T.N. Rajasekar and the first respondent T.N. Kasiviswanathan died. Their legal representatives were brought on record in I.A.No. 1 of 2005 and I.A.Nos. 5-8 of 2004 respectively.
5. The appellant filed C.S.No. 110 of 1999 on the original side of the High Court for a preliminary decree for partition claiming 1/5th 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 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 1/5th 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 given by late T.N. Ganapathi. The Division Bench by judgment dated 04.04.2001 directed that the properties of late T.N. Ganapathi which existed on the date of his death alone should be divided.
6. The appellant herein filed application No. 204 of 2001 for passing a final decree and for appointment of an Advocate Commissioner. On 05.08.2002, the 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 1/5th 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 - 10 and the value of the house was assessed at Rs. 1,50,00,000/-. Thus it is evident that the appellant was allotted the house in excess of his share of Rs. 59,75,914/-, the difference of which i.e. value of the house allotted deducting value of his share has to go to the other 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.
7. As there was no specific direction in the judgment of the learned single Judge regarding the allotment of properties to the respondents, the 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 learned single Judge ordered in the following terms on 22.11.2002.
(i) Item No. 6 was allotted to the plaintiff towards his 1/5th share;
(ii) The owelty amount of Rs. 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. 1 to 5, 7 as well as owelty amount in relation to Item 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 th
