Important points:
As per the procedure laid down under Order XXVI Rule 14 of the CPC, the Commissioner has to conduct such necessary enquiry before dividing the property into as many shares and that for effecting a fair partition, the properties shall have to be valued according to the market value prevalent at that time; for which purpose, the parties will have to be called upon to offer their opinion on the valuation. She says that even if, an agreed valuation is found to be grossly inadequate, the Commissioner is not bound to accept such valuation and that he has to re-assess the value of the properties by adopting any of the recognized methods of valuation, after examining necessary witnesses and calling for any document, as is sanctioned by the provisions of Sub Rule 1 to Rule 17 of Order XXVI, which construes the Commissioner to be a Civil Court for such purpose.

JUDGMENT :

The functional role of a Partition Commissioner and the statutory obligation of Courts while dealing with the report of such Commissioner, in a suit for partition, under the ambit of Order XXVI Rule 14 of the Code of Civil Procedure is called under scanner by the appellant in this appeal.

2. This appeal was originally preferred by defendants 1 and 2 in O.S.No.81/1997 on the files of the Court of the Sub Judge, Attingal; but pending this lis, the second appellant applied to transpose himself as the sixth respondent giving up the challenge against the impugned judgment and decree. Hence, as now matters stand, there is only one appellant, who is the first defendant in the aforementioned suit.

3. The appellant alleges that the final judgment and decree of the Trial Court has been issued in flagrant violation of the provisions of Order XXVI Rule 14 of the Code of Civil Procedure (for short, 'the CPC'), since the said Court has accepted the report of the Commissioner even without considering the objections filed by him against the same.

4. The appellant says that, as is clear from the impugned judgment, the Trial Court has recorded that objections had been filed by him much prior to the date on which the decree had been issued, but that since the appellant “did not take any steps to examine either the commissioner or the experts to establish that there is any defect in the Commissioner's report” (sic.), the objections are untenable. The appellant contends that these conclusions of the Trial Court are wholly opposed to law and that, hence, it is liable to be set aside by this Court.

5. I have heard Smt.Anagha Lakshmy Raman, learned counsel appearing for the appellant; Sri.R.S.Kalkura, learned counsel appearing for respondents 1 to 5/plaintiffs; and Sri.T.K.Radhakrishnan, learned counsel appearing for the sixth respondent (who was originally the second appellant).

6. For the sake of convenience and clarity, I will hereinafter refer to the parties as they are ranked in the Trial Court.

7. Smt.Anagha Lakshmy Raman, learned counsel for the appellants, began her submissions by asserting vehemently that the report of the Advocate Commissioner, which has been now accepted by the Trial Court, is untenable because it had been settled without even issuing notice to her client. She says that, going by Order XXVI Rule 14 of the CPC, it was the duty of the Trial Court to have considered her client's objections and to have then varied, modified or set aside the report of the Commissioner as the situation warranted. She says that since the Commissioner has settled the report even without issuing notice to her client, the Trial Court ought not to have accepted the same but should have rejected it under the mandate of the afore provision.

8. The learned counsel further says that the impugned judgment is unacceptable since the only reason why the Commissioner's report has been approved by the Trial Court is that the objections filed by her client had not been established by him by examining the Commissioner or the experts who valued the properties. Smt.Anagha Lakshmy Raman, submits that the procedure adopted by the Advocate Commissioner and by the Trial Court goes totally contrary to the role of a Partition Commissioner under law and she relies on the opinion of in Mitra's Co-ownership and Partition, 8th edition (Eastern Law House), to impress upon me that as per the procedure laid down under Order XXVI Rule 14 of the CPC, the Commissioner has to conduct such necessary enquiry before dividing the property into as many shares and that for effecting a fair partition, the properties shall have to be valued according to the market value prevalent at that time; for which purpose, the parties will have to be called upon to offer their opinion on the valuation. She says that even if, an agreed valuation is found to be grossly inadequate, the Commissioner is not bound to accept such valuation and that he has to re-assess the value of the properties by adop