Back
2020 Supreme(Mad) 1070
IN THE HIGH COURT OF MADRAS
S.M. SUBRAMANIAM, J.
Ramalingam - Appellant
Versus
Bhuvaneswari Ramalingam and Ors. - Respondents
A.S. No. 735 of 2019
Decided On : 14-02-2020
For the Appellant : P.S. Venkatasubramanian.
For the Respondents: N. Kumar Rajan.
Headnote:
Indian Evidence Act - Section 60 - Land Acquisition Act, 1984 - Partition Act - Section 3 - Evaluation of shares - True and fair market value of schedule property - Immovable properties - Appellant in appeal suit is the first defendant in the suit first respondent in appeal suit is plaintiff in the suit and the second and third respondents in the appeal suit are the defendants suit - For sake of convenience ranking of the parties in appeal suit would be referred to as per their ranks before Trial Court - Suit was instituted by first respondent/plaintiff for partition - Preliminary decree was passed that the plaintiff is entitled share in suit schedule property and accordingly, final decree proceedings were initiated - Trial Court made an effort to find out true and fair market value of the suit schedule property in order to the final decree proceedings and in this regard, an Advocate Commissioner was appointed for the purpose of ascertaining the value of the suit property – Held, However if market value is ascertained and fixed by Court, then he is at liberty to purchase the property from other sharers and deposit their shares in Court. Contrarily cannot go on raise objection with regard to the market value of the suit property in order to prolong and protract the issues and thereby depriving the rights of others from getting their rightful shares - In event of unwillingness on the part of the appellant, then Court can go for an open auction and thereafter, divide the shares in accordance with the preliminary decree passed. When the Advocate Commissioner as well as Senior Bailiff were appointed by the Court, submitted their Report and based on their Reports, the Trial Court fixed market value of property as then there is no reason for this Court to interfere with such fixation and if the appellant is interested in purchasing the property, he is at liberty to deposit the amount as stipulated in judgment and decree of the Trial Court, failing which the property should be sold out under Section 2 of Partition Act in public auction by appointing an Advocate Commissioner without any undue delay - Counsel appearing on behalf of appellant made a submission that appellant has already deposited a sum in credit - Thus, the appellant is at liberty to deposit balance amount as stipulated in judgment and decree of Trial Court in failing which suit property shall be sold out under Section 2 of the Partition Act, 1893 in a public auction by appointing an Advocate Commissioner and no further time is to be granted for the appellant in this regard – Appeal dismissed
JUDGMENT :
S.M. Subramaniam, J.
1. The appeal suit on hand is directed against the order and decree dated 23.04.2019 passed by the learned Sessions Judge, Mahila Court, Kancheepuram District at Chengalpattu in I.A. No. 293 of 2014 in O.S. No. 288 of 2005.
2. The appellant in the appeal suit is the first defendant in the suit, the first respondent in the appeal suit is the plaintiff in the suit and the second and third respondents in the appeal suit are the defendants 2 and 3 in the suit.
3. For the sake of convenience, the ranking of the parties in the appeal suit would be referred to as per their ranks before the Trial Court.
4. The suit was instituted by the first respondent/plaintiff Smt. Bhuvaneswari Ramalingam for partition.
5. Preliminary decree was passed that the plaintiff is entitled to 1/4th share in the suit schedule property and accordingly, final decree proceedings were initiated. The Trial Court made an effort to find out the true and fair market value of the suit schedule property in order to finalise the final decree proceedings and in this regard, an Advocate Commissioner was appointed for the purpose of ascertaining the value of the suit property.
6. Admittedly, the suit property situates within the Chennai City limits and accordingly, the Advocate Commissioner had undertaken the process of ascertaining the value of the suit property. The Advocate Commissioner filed his report and based on the report submitted by the Advocate Commissioner, the Trial Court fixed the valuation of the suit property as Rs. 6,50,00,000/-.
7. The appellant herein filed I.A. No. 293 of 2014 in O.S. No. 288 of 2005 to order evaluation of shares of the plaintiff, second and third defendants in the property described in the schedule, offer to sell the same to the appellant/first defendant at the price so ascertained and give all necessary and proper directions as the Trial Court may deem fit and proper.
8. The Trial Court, relying on the report of the Advocate Commissioner, received the objections from the appellant/first defendant and more specifically on the report of the Advocate Commissioner, which reads as under:-
"1. The Advocate Commissioner had on the 31st October 2015 visited the suit property and the only work done on the said date was the taking of measurements of the land and the building. The Advocate Commissioner had not on the 31st October 2015 make any enquiry in the local area with the residents.
2. The Warrant directs the Advocate Commissioner to make a local investigation of the property with the help of Civil Engineer/Approved Valuer. However, the Advocate Commissioner, at variance from the terms of the Warrant, fixed Mr. T. Seeniraj, a businessman carrying on business as Engineering Consultants, Flat Promoters and Contractors to help him in ascertaining the value of the site and building.
3. The Advocate Commissioner had not after the 31st October 2015 fixed any date for enquiry. The Advocate Commissioner did not conduct any enquiry in regard to the market value of the property and failed to afford opportunity to the parties to take part in any enquiry relating to market value of the property.
4. The finding of the Advocate Commissioner that the site value in the open market is Rs. 11,000/- per square feet is fanciful, absolutely baseless and not supported by any evidence.
5. The Advocate Commissioner erred in not considering the registered Deeds of Sale produced by the petitioner. The finding of the Advocate Commissioner "As per the recently obtained guideline value from the Alandhur Sub Registrar Office, the site value is Rs. 6,000/- per square feet. Hence, all the Sale Deeds are overruled" is clearly illegal and beyond the scope of the Warrant.
6. The observation of the Advocate Commissioner that Counsel appearing for R-2 and R-3 furnished a memo stating the value as Rs. 5.20 crores and 6 crores would appear to be factually incorrect.
7. The Advocate Commissioner failed to note that the Warrant does not authorise Engineer/Appro
