M.K. Sharma, J.
(1) LA. NO. 94/88. This is an application under Order I Rule 10(2) Civil Procedure Code filed by Shri Sanjiv Kumar, through his mother and next friend Smt. Manohar Devi, praying for impleading him as a party to the suit being a coparcener to the Hindu Undivided Family property and on the basis of the principle 'every coparcener is entitled to a share upon partition'.
(2) The applicant is the son of the defendant No. 2, Shri Babu Lal, who appeared in the suit and contested the same all throughout. According to the applicant, since the suit property is a coparcenery property, every coparcener is entitled to a share on partition and, thereforee, the applicant being one of such coparceners, he is required to be imp leaded as one of the parties in the suit.
(3) Counsel appearing for the applicant stated that the applicant being admittedly one of the coparceners is entitled to safeguard his interest and should be allowed to be joined in the present proceedings. His further submission was that without impleading him as one of the party defendants in the present suit, the plaintiff was not entitled to any relief in the suit itself.
(4) The present application has been contested by the plaintiff as also by the defendant No. 3. According to the counsel appearing for the said plaintiff and defendant No. 3, the father of the applicant is a party defendant in the present suit being defendant No. 2 and at the time when the present application was filed, the applicant was admittedly a minor. thereforee, since the said applicant was staying with his father who contested the suit all through, the applicant is not a necessary party, particularly, when the father acted in a manner to protect and safeguard the interest of himself and that of the minor and did not act in a manner prejudicial to the interest of the said minor. It was submitted that the entitlement of the applicant to the property is qua his father who is the head of the family and the said branch being represented by the father, the applicant was neither a necessary party, nor is required to be imp leaded in the present suit.
(5) The suit was instituted by the plaintiff who is a brother of the defendants Nos. 1 and 2 and son of the defendant No. 3, seeking for partition, declaration and permanent injunction. The defendant No. 1 and 2 appeared in the suit and contested the same by filing written statement. The defendant No. 3 who is the mother also appeared in the suit and contested the same by filing her written statement. However, the defendant No. 3 sided with the plaintiff in his claim whereas, the defendants Nos. 1 and 2 put up a hostile claim as against the plaintiff.
(6) This court after hearing the parties and on consideration of the evidence on record passed a preliminary decree in the suit holding that the three brothers namely, the plaintiff and the defendants Nos. 1,2 and 3 and the mother are entitled to one-fourth share each in the suit properties, all of them having become co-owners after the death of their father and husband who admittedly had not left behind any will. In the suit, thereforee, the plaintiff sought for partition of the suit properties which was left behind by the father. This court also through the preliminary decree determined the share of the parties to the suit property as one-fourth each as they had become co-owners after the death of their father and husband who admittedly, had not left behind any will. Accordingly, thereforee, whatever claim the applicant might have to the suit properties is apparently qua his father and the father having been made a party in the suit and having contested the same all through, the interest, if any, of the applicant, was all along protected and his father, the defendant No. 2 never acted in any manner prejudicial to the interest of the applicant.
(7) Mulla in his Treatise 'Principles on Hindu Law' has stated thus in paragraph 333:-
'THE plaintiff in a partition suit should implead as defendants:- (i) the heads of all branches; (ii) females who are entitled to a share on partition; (iii) the purchaser of a portion of the plaintiffs share, the plaintiff himself being a coparcener; (iv) if the plaintiff himself is a purchaser from a coparcener, his alienor.'
It is further stated that the above are necessary parties and if any of them is not joined, the suit is liable to be dismissed.
(8) Mother who is entitled to a share on partition are made parties being necessary parties as has been said by Mulla.
(9) Reference may also be made to the case of Bishambar Das and others v. Kanshi Prasad and others reported in 1932, Lahore 641. In the said case it has been held that:-
'WHERE the suit is not for partition of the properties between all the alleged coparceners inter se but one for a division between the two branches of the family, it is settled law that to such a suit the really necessary parties are the heads of each branch of the family and it is not obligatory on the plaintiffs to implead all the members of the two branches. The suit can, thereforee proceed if the head of the plaintiffs branch is the sole plaintiff and heads of defendant's branches the sole defendants and any decree passed in the suit would be binding upon their descendants.'
(10) Learned counsel for the applicant placed reliance on a decision of the Supreme Court in Rattan Chettiar and others Vs . S.M. Kuppuswami Chettiar : [1976]1SCR863 . I have gone through the ratio of the said decision and I am of the opinion that the said decision is not applicable to the facts and circumstances of the present case. In that case, the plaintiffs father who is defendant No. 5 was a person of weak intellect and he did not care to protect the interest of the minors. In view of the aforesaid distinguish- ing feature, the ratio of the decision is not applicable to the facts of the present case. Learned counsel also relied upon the decision of Kakumanu Pedasubhaya and another Vs . Kakumanu Akkamma and another : [1959]1SCR1249 . The learned counsel particularly relied upon the principles of law laid down in the said case to the effect that:-
'THE Hindu law makes no distinction between a major co-parcener and a minor co-parcener so far as their rights to joint properties are concerned. A minor is, equally with a major, entitled to be suitably maintained out of the family properties, and at partition, his rights are precisely those of a major'.
No dispute has been raised in the present case contrary to the law laid down by the Supreme Court. It is settled law that a Court is always to see as to whether the action is beneficial to the minor or not.
(11) On consideration of the facts and circumstances of the case, I find that the claim of the applicant to a share in the property is qua his father who was made a defendant in the present suit and contested the same throughout and adopted all such actions which was in the best interest of himself and also in the best interest of his descendants including the applicant. Under these circumstances, I find no merit in this application and, thereforee the same stands rejected.
(12) I.A. NO. 95/1988. Counsel appearing for the parties state that this application has become anfractuous and the same stands accordingly dismissed as such.
(13) I.A. No. 96/1988. This is an application filed by the defendants Nos. 1 and 2 challenging the order dated 11.11.1987 passed by the Local Commissioner and seeking for quashing of the same and further praying that another Valuer be appointed at the cost of. the plaintiff, who should be directed to submit a report in terms of the judgment and order dated 24.10.1985 passed by this Court. While passing a preliminary decree, this Court appointed Shri Baldev Raj, Advocate as a Local Commissioner with direction to suggest mode and manner of partition of the suit properties and to put the parties in their respective shares. The Local Commissioner got the evaluation of the properties in suit done by Shri R.P. Dhingra of Messrs Dhingra & Associates, Valuers. Shri R.P. Dhingra, submitted his valuation report of the suit property on 10.7.1987 to the Local Commissioner. The Local Commissioner forwarded a copy of the aforesaid valuation report submitted by the Valuer to the parties and asked the parties to the suit by his letter dated 16.7.1987 to file objections to the report, if any, within a fortnight. The defendant Nos. 1 and 2 filed objection to the aforesaid report submitted by the Valuer. The Local Commissioner heard the representation of the parties and considered the objections raised by the defendants Nos. I and 2 to the report of the Valuer and thereafter, by his order dated 11-11-1987 rejected the objection and held that the valuation of the plot/land for all the properties fixed by the Valuer is legal and is in order. Being aggrieved by the aforesaid order passed by the Local Commissioner, the defendants Nos. 1 and 2 has preferred this application.
(14) The Local Commissioner was appointed by this court to effect partition of the suit properties in equal shares between the parties. The Local Commissioner in pursuance of the aforesaid appointment recorded the evidence adduced by the parties in respect of their case. Since, however, none of the parties led any evidence about the cost of the land involved in the three properties and in order to know the exact portion and area of occupation of each of the parties apart from the approximate cost of construction and the value of the land, the Local Commissioner thought it fit and necessary to engage the service of an Architect/Valuer. The Local Commissioner after obtaining suggestions of the names of such Architects from the parties, the name of Messrs Dhingra Associates was selected in the presence of parties and the work of evaluation of the properties in dispute was assigned to it. As a matter of fact, the name of Messrs Dhingra Associates was suggested by the defendants Nos. 1 and 2. The said Valuer on consideration of valuation of the properties and also taking into consideration the factum of depreciation submitted his report before the Local Commissioner. The Local Commissioner, as it appears from his order dated 11.11.1987 considered the report of the Valuation Officer and critically analysed the same qua the objections raised by the defendants Nos. 1 and 2.
(15) The valuation report has been submitted by an approved Valuer who is an expert. I have looked into the report of the Valuer and I find that the said report is an elaborate report. The Objectors have not questioned the integrity of the said Valuer. The Valuer has carefully and laboriously executed his task as is apparent from his report. As is disclosed from the dated 11.11.1987 passed by the Local Commissioner, I find that the Local Commissioner has critically analysed the said report of the Valuer and has not blindly accepted the same. Although objection was taken with regard to valuation of property No. 83, subsequently, defendant Nos. I and 2 did not press for the objection. The Local Commissioner has by a detailed order examined the report of the Valuer and thereafter, has come to a categorical Finding that the same is in order. Interference is not to be resorted to with the result of a long and careful local investigation except on clearly defined and sufficient grounds.
(16) In Chandan Mull Indra Kumar and others Vs . Chiman Lal Girdhar Das Parekh and another reported in , it has been held that:-
'IT is not safe for a Court to act as an expert and to overrule the elaborate report of a Commissioner whose integrity and carefulness are unquestioned, whose careful and laborious execution of his task was proved by his report, and who had not blindly adopted the assertions of either party'.
(17) On careful consideration of the report of the Valuer as also the order dated 11.11.1987 passed by the Local Commissioner, I find no illegality and/or irregularity in the said order and accordingly, the present application stands rejected.
(18) S. NO.. 807/1982. The plaintiff instituted the present suit against the defendants seeking partition of the suit properties. The defendants Nos. 1 and 2 are the brothers of the plaintiff while the defendant No. 3 is their mother. According to the plaintiff, the suit properties were inherited from their father by the three brothers and the mother, who is defendant No. 3 and accordingly, the parties to the suit have one-fourth share each in the suit properties.
(19) In the suit, the plaintiff sought for passing a preliminary decree for the partition of the entire properties and for a declaration that the plaintiff is the owner of one-fourth share and after so determining the share of the parties, to appoint a Local Commissioner for suggesting manner and mode of partition and thereafter, to pass a final decree in the suit.
(20) This Court after recording evidence of the witnesses produced on behalf of the parties and after hearing the arguments advanced by the parties by judgment and order dated 24.10.1985 passed a preliminary decree declaring the plaintiff and the defendants Nos. 1,2 and 3 as owners of one-fourth shares each in the suit properties bearing Nos. 83,86 and 166, Masjid Moth, New Delhi. This Court further appointed Shri Baldev Raj, Advocate as the Local Commissioner with a direction to effect the partition of the properties and put the parties in their respective shares. It was further directed that the Local Commissioner would also go into the accounts of the amount realised by the defendants Nos. I and 2 as rent of the properties and with further directions to find out as to whether any improvement had been carried out in the properties in suit and if so, during which period and which of the parties had incurred the expenses. In pursuance of the aforesaid judgment and preliminary decree passed by this Court, the Local Commissioner issued notices to the parties for appearance before him. All the parties to the suit put in appearance through their counsel. The Local Commissioner after inspection of all the three sites in disputes directed the parties to adduce their evidence in support of their respective claims regarding the additional construction and improvement, if any, made by them jointly or individually in the three properties in disputes and the defendant Nos. I and 2 were also directed to render account of the rent realised by them after the death of their father with a further direction to the parties to File documents, if any, in support of their respective claims.
(21) Since none of the parties led any evidence about the cost of the land involved in the three properties and in order to know the exact portion and area in occupation of each of the parties and also the approximate cost of construction and the value of the land, the Local Commissioner thought it fit and necessary to engage the services of an Architect/Valuer. The parties were requested to suggest the names of some of the Architects and after discussion with the parties, Messrs Dhingra Associates was selected by the Local Commissioner for the purpose in presence of the parties. Incidentally, it may be stated that the name of Messrs Dhingra Associates was suggested by the defendants Nos. 1 and 2. Messrs Dhingra Associates evaluated the properties in dispute and submitted their Valuation report which after hearing the parties was accepted by the Local Commissioner by his order dated 11.11.1987. The aforesaid report of the Valuer was challenged before this Court through I.A. No. 96/1988 by the defendants Nos. 1 and 2, which has been considered. This Court upon discussion of the various facets of the same upheld the valuation report.
(22) The Local Commissioner after hearing the parties and on examination of the evidence on record extensively came to the conclusion that there are two groups, one comprising of the plaintiff and the defendant No. 3 and the other comprising of defendants Nos. 1 and 2 and that he felt satisfied to give four suggestions in all in respect of partitioning the aforesaid properties in between the parties to the suit. Considering the fact that the father of the plaintiff and the defendants Nos. 1 and 2 died in the year 1938 and thereafter for 30 years or so, the parties remained joint and had been pooling their income, major contributions being that of defendants Nos. 2 and 2 and also considering the well being of the family and to save the properties from being sold, he has given his first suggestion as follows:-
'(1) That House No. 83 now Unit 'C' and 'D' be given to the plaintiff and the Defendant No. 3 respectively, details where of is given under:- ___________________________________________________________________________ Description of House Nos. Area Amount approx. property (Rs.) ___________________________________________________________________________ Plaintiff 83 63 +15.5 1,36,000.00 Unit C ___________________________________________________________________________ Defendant 83 52+15.5 98,000.00 No. 3 Unit D ___________________________________________________________________________
Since plaintiff would be getting property Unit 'C' worth Rs. l,36,000.00 which is more than the value of Unit 'D' to the tune of Rs. 38,000.00 or so approximately. thereforee, the plaintiff may be asked to compensate his mother by paying her Rs. 20,000.00 in lumpsum or pay Rs. 200.00 per month as a maintenance payable on 1st of every month by cheque so long as she is alive. The payment of Rs. 200.00 p.m. shall remain a charge on Unit 'C' till defendant No. 3 is alive. House Nos. 166 and 86 be given to defendants Nos. 1 and 2 jointly as per detail given below:-
____________________________________________________________________________ Description of House Nos. Area Amount approx. property (Rs.) ____________________________________________________________________________ Unit A 166 84 sq. yds. 1,87,000.00 ____________________________________________________________________________ Unit B 86 5 sq. yds. 1,16,000.00 ____________________________________________________________________________ 3,03,000.00 ____________________________________________________________________________
Out of Units 'A' and 'B', defendants No. 1 may be given ground floor of Unit No. 'A' and Defendant No. 2 be given first floor of same House (Unit 'A') with common right of use of W.C. and Bath room and passage on the ground floor or vice-a-versa. It would be open to the defendants to keep Unit 'B' jointly or sell it and divide the sale proceeds thereof between themselves in equal shares. In case defendant Nos. 1 and 2 do not want to occupy House No. 166 (Unit 'A') jointly as suggested above then defendant No. 1 may be given complete Unit 'A' which is already in his possession and defendant No. 2 be given Unit 'B' i.e., House No. 86 or vice-a-versa. Whosoever gets House No. 166 (Unit A) will have to pay Rs. 35,000 to the other getting House No. 86 (Unit 'B'). House No. 166 is well built up property as compared to House No. 86. Anybody getting House No. 86 will have to spend at least that much on its addition and alterations etc. It may be mentioned at this stage that during the course of arguments it was also suggested by the learned counsel for the defendants Nos. 1 and 2 that House No. 86 (Unit 'B') be given to the defendant No. 2 and he may be compensated with a sum of Rs. 50,000.00 contributed by all the remaining three parties. It was also suggested that House No. 83 (Unit 'C' & 'D') be given to the plaintiff and defendant No. 3 jointly and House No. 166 (Unit 'A') be given to Richhpal. This suggestion was, however, subsequently slightly modified by him and it was suggested that lei the plaintiff and defendant No. 1 be asked to contribute this sum of Rs. 50,000.00 and Defendant No. 3 be not asked to contribute anything. It means that Defendant No. 1 was willing to contribute Rs. 25,000.00 if he were given House No. 166(Unit 'A'). I have now suggested a payment of Rs. 35,000.00 by the person getting Unit 'A', as he would be getting well built up property worth Rs. 53,000.00 more as compared to his entitlement of Rs. l,34,000.00 The Local Commissioner has also stated that if the aforesaid suggestion is not acceptable to the parties, there could be two other alternative suggestions as shown in Seriall Nos. 2 and 3 of his report and lastly, he has stated that if none of the aforesaid suggestions is acceptable to the parties, then all the three properties might be sold in auction and proceeds thereof might be given to the parties in equal shares. He has further stated in his report that since the properties have been constructed jointly by the parties by contributing whatever little they could afford from their resources, the question of giving any finding as to the additional constructions and when it was done had become unnecessary.
(23) I have heard the learned counsel appearing for the parties on the aforesaid report submitted by the Local Commissioner. The counsel appearing for the plaintiff and the defendant No. 3 fairly submitted before me that both of them are' agreeable to accept any of the four suggestions made by the Local Commissioner in his report. They had also given a further alternative suggestion that House No. 166 and House No. 86 covering a total area of 159 sq.yds could be given in favor of the plaintiff and the defendant No. 3 and House No. 83, measuring in all about 146 sq.yds could be given to defendants Nos. 1 and 2. Alternatively, the plaintiff also offered to take House No. 166 by himself and the rest of the properties being given to the other three defendants.
(24) The counsel appearing for defendants Nos. 1 and 2, however/stated that the alternative suggestions given by the plaintiff and the defendant No. 3 are not acceptable to them. thereforee, I am left with the task of considering the four suggestions given by the Local Commissioner in his report. The counsel appearing for defendants Nos. 1 and 2 stated that they are not agreeable to any of the aforesaid suggestions in view of the fact that the Valuer has not given correct value in respect of the aforesaid properties and, thereforee, the report of the Local Commissioner having been based on the Valuation report cannot be acted upon. In respect of the public auction also, the counsel submitted that they have sentimental attachment to the aforesaid three properties and accordingly the same could not be ordered to be sold in public auction.
(25) Having regard to the submissions advanced by the counsel for the parties and having gone through the records of the case including the report submitted by the Local Commissioner, I find that the suggestion No. 1, as just and equitable. It was suggested there under that the plaintiff be given Unit No. 'C' comprising of House No. 83, area being about 78.5 sq.yds and the defendant No. 3 be given Unit No. 'D', that is the remaining part of House No. 83 measuring about 67.5 sq.yds and the defendant No. 1 be given Unit No. 'A', comprising of House No. 166 having a total area of about 84 sq.yds and the defendant No. 2 be given Unit No. 'B' comprising of House No. 86 measuring about 75 sq.yds. The House Nos., area of the property and valuation of the same as suggested by the Local Commissioner is given hereunder:-
____________________________________________________________________________ Description of House Nos. Area Amount approx. property (Rs.) ____________________________________________________________________________ Plaintiff 83 63 +15.5 = 78.5 1,36,000.00 Unit C ____________________________________________________________________________ Defendant 83 52 + 15.5 = 67.5 98,000.00 No. 3 Unit D ___________________________________________________________________________ Defendant 166 84 sq. yds. 1,87,000.00 No. 1 Unit A ____________________________________________________________________________ Defendant 86 5 sq. yds. 1,16,000.00 No. 2 Unit B ____________________________________________________________________________
(26) The Local Commissioner has further suggested in the said suggestion No. 1 that, if the properties are partitioned in the aforesaid manner, then the plaintiff would be liable to pay Rs. 20,000.00 in lumpsum or to pay Rs. 1001- per month as maintenance payable on first of every month by cheque so long the defendant No. 3 is alive. Similarly, he has suggested that if the defendant No. 1 chooses to occupy House No. 166, he shall have to pay Rs. 35,000.00 to the defendant No. 2.
(27) Considering the well being of the family and to save the properties from being sold and on consideration of all the four suggestions as made by the Local Commissioner and by the parties, I am of the considered opinion, that the suggestion No. 1 appears to be a reasonable, just and equitable and also in the best interest of all the partics. Accordingly, I pass a final decree in the present suit in the following manner:- The plaintiff is declared to be the owner and shall take possession of part of House No. 83 (Unit No 'C') and he' shall pay a sum of Rs. 20,000.00 to the defendant No. 3 within a period of six months from today. The defendant No. 3 is declared to be the owner and be put in possession of Unit 'D' comprising the remaining portion House No. 83 measuring a total area of 67.5 sq. yds, and in addition shall receive Rs. 20,000.00 payable by the plaintiff to her within a period of six months from today. The defendant No. 1 is declared to be the owner of Unit 'A' comprising House No. 166, Measuring about 84 sq.yds, which is the ground floor of the said House No. 166 and the defendant No. 2 is declared as owner and be put in possession of the first floor of the same House No. 166 with common right to use of W.C, bathroom and passage on the ground floor. The defendant No. 1 in addition shall pay Rs. 35,000.00 to the defendant No. 2 within six months from today.
(28) The suit accordingly stands decreed to the extent indicated above. The parties shall however bear their own costs.