MEHRUNNISSA BEGUM Vs. BEGUM NATHU BIBI

JUDGEMENT

(1.) THIS is an appeal against the final decree in a suit for partition O. S. No. 37 of 1963, on the file of the Subordinate Judge of chengalpattu. The estate in respect of which the suit for partition was laid, belonged to one late Ismail Khan. The estate comprised of immovable properties set out in schedule A, as well as outstanding and a share in a partnership business, set out in Schedule'b'. The appellants are defendants 2 and 6. The respondents are the plaintiffs and the other defendants. The preliminary decree in the suit was passed on 31. 8. 1965. It was subsequently modified by this Court on 82. 1973 in Appeal No. 560 of 1966. By the preliminary decree, the shares of the parties got determined as follows: Plaintiffs 62/104; Second Defendant 7/104; Defendants 1 and 3 to 5 35/104. The third-defendant died pending the suit and her legal representatives are defendants 7 to 11. On 8. 4. 1976 there was an order in ia. No. 404 of 1974, the application for passing the final decree, appointing a commissioner to divide the properties in terms of the preliminary decree. The commissioner appointed, submitted his report. His report was not found to be satisfactory and it was ignored and on 1. 3. 1978 there was an appointment of a fresh Commissioner and he was directed to re-value the properties and suggest allotment of shares to respective parties. The second commissioner submitted his report and he has made valuation of the properties and on the basis of the same, he has allocated the shares to the respective parties. Defendants 2 and "6 objected to the valuation done by the second Commissioner. Despite their objections, the Court below, on the basis of the valuation done by the second commissioner and accepting the allocation of the shares to respective parties, passed the final decree. As already noted, this Appeal is directed against the final decree, passed by the Court below.

(2.) APART from other comments, adverse to the method of valuation, adopted by. the second commissioner, Mr. G. Rajan, learned counsel appearing for defendants 2 and 5, would take a legal objection to the process of valuation adopted by the second Commissioner. Learned counsel for defendants 2 and 6 would submit that the second Commissioner acted upon statements and evidence gathered by him, without examining the persons concerned in accordance with law and the second Commissioner arrived at the valuation on the basis of these materials and this has vitiated the valuation done by the second commissioner and the said valuation alone formed the basis for making the allocation of shares to the respective parties and hence the Court below ought not to have accepted and acted upon the valuation and the allocation of shares as done by the second Commissioner. This legal objection is substantial one and our assessment of the same obliges us to sustain it.

(3.) LEARNED Counsel for defendants 2 and 6 has also pointed out other infirmities in the report of the second Commissioner regarding valuation of the items of immovable properties. With regard to items 16 to 19, the second Commissioner, without any sastistical basis, says that for converting those lands into house sites, a minimum expenses of Rs. 434/- per cent will be required. He also speaks about rise in price without disclosing any date. Regarding item 9, he speaks about the age of the building and the materials used for construction, without giving any details therefore. For items 10 to 15, even though documentary evidence is produced regarding value, the second Commissioner would go by surmises. Concerning item 4, the second commissioner declines to adopt the rental value, without assigning any acceptable reason therefor. A reading of his report gives the Court, the impressing that he has done the work of valuation and allocation in a most unorthodox manner, that cannot fit in with the concept of law, governing this process.