MOIDEEN Vs. ABOOBACKER

JUDGEMENT

(1.) This revision arises from the proceedings for the passing of a final decree for partition. The revision petitioner is an assignee from defendants 1 to 6 in the suit. The plaintiffs filed O.S. 56 of 1975 for partition. A preliminary decree was passed awarding 756/7776 shares to the plaintiffs and the remaining shares to defendants 1 to 6. The plaintiffs filed I.A. 2774 of 1979 seeking to purchase the shares of the assignee from defendants 1 to 6, the revision petitioner. That application was allowed, A Commissioner was appointed to value the building. Accepting the valuation made by the Commissioner the Trial Court directed the plaintiffs to deposit a sum of Rs. 66,560 as the value of the share of the revision petitioner. A final decree was passed on 21st September 1993 by which the plaint schedule property was allotted to the plaintiffs and declaring that the plaint schedule property belongs to the plaintiffs exclusively and the defendants have no right over, the plaint schedule property. The decree also provided for the withdrawal of the amounts deposited towards the value of the share of the revision petitioner. The plaintiffs were directed to deposit the necessary non judicial stamp paper for engrossing the final decree.

(2.) Without complying with the directions in the final decree, the plaintiffs filed I. A. 4638 of 1993 seeking review of the final decree. According to them since the plaintiffs were allowed to purchase the shares of defendants 1, to 6 now represented by the revision petitioner, their assignee, a deed of assignment had to be executed by the revision petitioner in their favour convening his share over the building to them. This application was opposed by the revision petitioner who contended that there was no error either of fact or of law in the final decree passed by the court and there was no -necessity for execution of any sale deed by the revision petitioner in favour of the plaintiffs as claimed by them. The Trial Court allowed that application. It is not seen from the order of the court below allowing the application for review on what basis the review was granted, though it is seen that there is a reference to S.4(1) of the Partition Act in the order. Feeling aggrieved by the reviewing of the final decree and the delay in getting the value of his share, the revision petitioner filed an appeal before the District Court. That court after: referring to S.4 (1) of the Partition Act proceeded to observe that the said section contemplated only the execution of a sale deed. Since the plaintiffs were allowed by the court to purchase the share of the revision petitioner fas assignee from defendants 1 to 6, the other sharers) there was no question of passing a final decree for partition and the only thing that could be done was the execution of a sale deed by the revision petitioner transferring his rights in the property to the plaintiffs. The appellate court dismissed the appeal. This is challenged before me.

(3.) In the course of the proceedings for the passing of the final decree, the court ordered that the entire property be allotted to the plaintiffs subject to their paying off of the shares due to defendants 1 to 6 (presently due to the revision petitioner as their assignee) and that a final decree be passed on that basis. I do not see anything which calls for the execution of an assignment deed by their assignee in favour of the plaintiffs in such a situation. The lower appellate court seems to think that S.4 (1) of the Partition Act stands in the way of the court passing a final decree as it did in this case originally. First of all, it is doubtful whether S.4 (1) of the Act applied to this case since the suit was not by the assignee of the sharers. The procedure adopted by the court in the present case of permitting the plaintiffs to buy off the shares of the assignee from defendants 1 to 6 can strictly be only in exercise of its power to do so as a court passing a final decree in a suit for partition. In fact it could not be traced to exercise of any power under the Partition Act as such., Moreover, when the final decree allots the entire plaint schedule property to the plaintiffs and provides for the value of the shares to be paid to the other sharers, all that is needed is the relevant provisions in the final decree and there is no need for the sharers whose rights have been purchased for executing an assignment deed . outside the court or through the process of court. The final decree passed by the court operates as the absolute title of the plaintiffs subject to the obligation to pay the value of the other sharers as indicated in the final decree. The courts below were therefore clearly in error in reviewing the final decree that was passed by the Trial Court on 21st August 1993. I am therefore satisfied that the order reviewing the final decree of the Trial Court is one which is clearly erroneous and the lower appellate court has clearly erred in affirming the order reviewing the final decree. I find that the order reviewing the final decree is one without jurisdiction and is also on the basis of a clearly erroneous understanding of the legal position. I therefore set aside the orders of the courts below dismiss the Review Petition and restore the final decree that was passed by the Trial Court on 21st August 1993.