JUDGMENT Nainar Sundaram, J. 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 I.A. No. 404 of 1974, the application for passing the final decree, appointing a Commissioner to divide the proper ties 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. 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. Items 1 to 22, set out in schedule 'A' are immovable properties. Items 23 to 42, set out in schedule 'B' are outstandings and the share in the partnership business. We shall first take items 1 to 22, set out in schedule 'A'. In paragraphs 2 and 3 of his report, the second Commissioner deals with items 16 to 19 situate at Mudichoor. He observes in paragraph 3 as follows: I enquired the village Munsif and the other villagers. We find that statements were taken from two persons at Mudhichoor and their names are Kothandan and Radhakrishna Reddy. It is stated that of the two persons Kothandan is the village Munsif. These statements cannot be equated to recording of evidence as enjoined by the provisions of law. There was no examination in chief, cross-examination and re-examination, if any. No oath had been administered to these persons. While dealing with item 5 in paragraph 4 of his report, the second Commissioner observes as follows: On enquiry, I came to know that the site is sold at Rs. 750. It is not disclosed as to whom the second Commissioner enquired of. No evidence of the person, whom the second Commissioner is stated to have enquired, admittedly has been taken in accordance with law and placed as part of the record. 750. It is not disclosed as to whom the second Commissioner enquired of. No evidence of the person, whom the second Commissioner is stated to have enquired, admittedly has been taken in accordance with law and placed as part of the record. Dealing with items 20 to 22, the second Commissioner in paragraph 9 of his report, observes as follows: Further, I enquired about the value of one plot in Rajajipuram, on enquiry I came to know that one plot was sold at Rs. 3,000. I have taken a statement also from one Singaram Pillai residing at Plot No. 43/1 in Rajajipuram. Here again, there is no disclosure as to of whom all the second Commissioner enquired about the value of one plot in Rajajipuram. The statement of Singara Pillai is annexed, to his report. That again suffers the same infirmity as we found with regard to the statements of the two persons taken regarding items 16 of 19 at Mudichoor. Regarding item 1, in paragraph 11 of his report, the second Commissioner states as follows: I enquired the prevailing market value of one site therein. Regarding item 3, in paragraph 13 of his report, the Second Commissioner observes: I enquired the owner of the site on the North who had purchased the same recently. The relevant details of the persons enquired of are not disclosed. There had been no recording of the evidence of the said persons in due compliance with the provisions of law. 4. Coming to item 4, in paragraph 21 of his report, the second Commissioner observes: Hence, I enquired one Muthu Nadar resident of the same street about the present value of one ground in the locality. He stated that one ground was sold at Rs. 8,000 We have the statement of Muthu Nadar annexed to the report of the Second Commissioner. That statement also cannot be equated to the evidence of a witness taken before the Commissioner and it suffers the same lacuna as the other statements taken by the second Commissioner. Thus, we find that the second Commissioner states that he made enquiries and that he took statements from persons. The second Commissioner has chosen to accept and act upon the statements and the results of his enquiries. Only by this process, he arrived at the valuation of the items of immovable properties. Thus, we find that the second Commissioner states that he made enquiries and that he took statements from persons. The second Commissioner has chosen to accept and act upon the statements and the results of his enquiries. Only by this process, he arrived at the valuation of the items of immovable properties. Only on the basis of this valuation the second Commissioner allocated the shares. This valuation and allocation have found countenance at the hands of the Court below. The court below has not made any independent ascertainment of the value of the items of immovable properties and it has chosen to go only by the valuation done by the second commissioner. It is only on this background, learned Counsel for defendants 2 and 6 submits that the second Commissioner acted without jurisdiction in making enquiries and taking the statements and accepting and acting upon the results of such enquiries and statements for the purpose of arriving at the value of the items immovable properties and then allocating them on the basis of the said valuation. 5. This obliges us to consider the scope of the powers available to a Commissioner appointed by the Court to make partitions and as well as his powers to examine witnesses. Order 26, Rules 13 and 14 of the Code of Civil Procedure, hereinafter referred to as the Code, deal with commission to make partition of immovable property and the procedure of Commissioner and they read as follows: 13. Commission to make partition of immovable property where a preliminary decree for partition has been passed, the court may, in any case not provided for by Section 54, issued a Commission to such person as it thinks fit to make the partition or separation according to the right as declared in such decree. 14. Procedure of commissioner: (1) The Commissioner shall, after such inquiry as may be necessary, divide the property into as many shares as may be directed by the order under which the commission was issued, and shall allot such shares to the parties, and may, if authorized thereto by the said order, award sums to be paid for the purpose of equalizing the value of the shares. (2) The Commissioner shall then prepare and sign a report or the Commissioners (Where the Commission was issued to more than one person and they cannot agree) shall prepare and sign separate reports appointing the share of each party and distinguishing each share (if so directed by the said order) by metes and bounds. Such report or reports shall be annexed to the commission and transmitted to the Court; and the Court, after hearing any objections which the parties may make to the report or reports shall confirm, vary or set aside the same.... (3) Where the Court confirms or varies the report or reports it shall pass a decree in accordance with the same as confirmed or varied; but where the Court confirms or varies the report or reports it shall pass a decree in accordance with the same as confirmed or varied; but where the Court sets aside the report or reports it shall either issue a new commission, or make such other order as it shall think fit. In the general provisions in Order 26 of the Code, Rule 16 deals with the powers of Commissioner to examine parties and witnesses and it required extraction as follows: 16. Powers of Commissioners: Any Commissioner appointed under this Order may, unless otherwise directed by the order of appointment, (a) examine the parties themselves and any witness whom they or any of them may produce, and any other person whom the commissioner thinks proper to call upon to give evidence in the matter referred to him. (b) Call for and examine documents and other things relevant to the subject of inquiry. (c) at any reasonable time enter upon or into any land or building mentioned in the order. As we could see from the extract, as per Clause (a) of Rule 16, a Commissioner appointed under Order 26, unless otherwise directed by the order of appointment may examine the parties themselves and any witness whom they or any of them may produce and any other person whom the Commissioner thinks proper to call upon to give evidence in the matter referred to him. Rule 17 speaks about the attendance and examination of witnesses before Commissioner and it reads as follows: 17. Rule 17 speaks about the attendance and examination of witnesses before Commissioner and it reads as follows: 17. Attendance and examination of witnesses before Commission: (1) The provisions of this Code relating to the summoning, attendance and examination of witnesses, and to the remuneration of and penalties to be imposed upon, witnesses, shall apply to persons required to give evidence or to produce documents under this Order whether the Commission in execution of which they are so required has been issued by a Court situate within or by a Court situate beyond the limits of India, and for the purposes of this rule the commissioner shall be deemed to be a Civil Court: (Provided that when the Commissioner is not a Judge of a Civil Court he shall not be competent to impose penalities; but such penalties may be imposed on the application of such Commissioner by the Court by which the Commission was issued). (2) A Commissioner may apply to any Court (not being a High Court) within the local limits of whose jurisdiction a witness resides for the issue of any process which he may find it necessary to issue to or against such witness, and such Court may, in its discretion, issue such process as it considers reasonable and proper. When Rule 17 speaks about the provisions of the Code, relating to the summoning, attendance and examination of witnesses, it would have reference only to Order 18, which deals with hearing of the suit and examination of witnesses. By the force of Order 18 of the Code, Section 138 of the Evidence Act stands attracted. If so, there shall be examination in chief, then cross-examination and re-examination, if any. It is needless to state that the powers of the commissioner with reference to examination of witnesses have got to be gleaned from the provisions referred to above. The Commissioner cannot travel beyond them and purport to make enquiries and take and record statements at random and then act upon them. If there is a direction to the contrary in the order of his appointment, certainly the commissioner is bound by it and he will be precluded from examining cither the parties or witnesses whom the parties may produce or the Commissioner himself may think it proper to call. If there is a direction to the contrary in the order of his appointment, certainly the commissioner is bound by it and he will be precluded from examining cither the parties or witnesses whom the parties may produce or the Commissioner himself may think it proper to call. In the absence of such a direction, the Commissioner is at liberty to do the examination of the parties or witnesses as per " Rules 16 and 17 of Order 26 of the Code read along with Order 18 of the Code and Section 138 of the Evidence Act. If the examination of the parties or the witnesses is not done as enjoined by the above rules, certainly such examination will have no sanctity annexed to it in the eye of law and the statements recorded by any other process and enquiries made will have to be ignored as totally lacking in jurisdiction and they could not form the basis for any finding to be rendered or report to be given by the commissioner and certainly that could not form the basis for any decision by the Court. 6. The provisions of the Code themselves being beyond ambiguity, there may not be need to cite any case law. But, still we would like to refer to two pronouncements; one of a learned single Judge of the High Court of Allahabad and another of a Bench of this Court. Iqbal Ahmed, J. of the High Court of Allahabad in Nandkishore v. Shiam Sundar A.I.R. 1938 All. 215 frowned upon the examination of parties by the Commissioner in violation of the relevant provisions of Order 26 of the Code in the following terms: Rule 16, of Order 26 authorities the Commissioners appointed by the Court to examine witnesses unless there is a direction to the contrary contained in the order of appointment. But this Rule is subject to the provisions of Rule 17 which enacts that the provisions of the Code 'relating to the... examination of witnesses...' shall apply to persons required to give evidence.... But this Rule is subject to the provisions of Rule 17 which enacts that the provisions of the Code 'relating to the... examination of witnesses...' shall apply to persons required to give evidence.... The provisions as regards the examination of witnesses are set forth in Order 18 the code which lays down inter alia that the evidence of witnesses shall be taken in open Court and the method in which the evidence is to be recorded is prescribed by Section 138, Evidence Act which provides that witnesses shall be first examined in chief then cross-examined and then re-examined. It is therefore imperative that the parties must be afforded an opportunity of examining cross examining and re-examining the witnesses and the recording of statements of witnesses without affording such opportunity to the parties is not warranted by law. The provisions of Rule 16 of Order 26 are no doubt, as observed by the learned Judge of the lower Appellate Court permissive in the sense that they vest discretion in the Commissioner to examine or not to examine a witness. But once the Commissioner has decided to examine or not to examine a witness. But once the Commissioner has decided to examine a witness the mandatory provisions of Rule 17 of Order 26 come into play and those provisions in their turn attract the provisions of Order 18 of the Code and of Section 138, Evidence Act. It follows that it is not permissible for a Commissioner to record the statements of witnesses secretly and the absence of parties without giving them due notice of the date and time on which he proposes to examine the witnesses. In the present case the Commissioner stated that he examined the tenants in the absence of the parties as he feared that the recording of the statements of the tenants in the presence of the parties might lead to a breach of the peace. I am not concerned with the question whether or not the reason assigned by the commissioner for recording the statements of the tenants without giving notice to the parties was well-founded. But the fact remains that the parties has no opportunity of cross-examining the tenants who were examined by the Commissioner and their statements could not therefore be treated as evidence in the case. But the fact remains that the parties has no opportunity of cross-examining the tenants who were examined by the Commissioner and their statements could not therefore be treated as evidence in the case. The Commissioner based his report on the statements of the tenants recorded by him and as those statements did not constitute legal evidence the report was inadmissible in evidence and could not be made the basis of a decision. In Ramakka v. Nagesam A.I.R. 1925 Mad. 145 Spencer and Venkatasubba Rao, JJ. did not countenance the acting on information given by witnesses whose statements were not reduced to writing and they Characterised such statements as 'not legal evidence' upon which the court can decide. In the present case, we have found that the second Commissioner badly observed that he made enquiries. With regard to statements recorded by him and annexed to his report already referred by us, those statements do not fit in with the provisions, set out in Rules 16 and 17 of Order 26 of the code, read with Order 18 of the Code and Section 138 of the Evidence Act. 7. 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 statistical 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 re port 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. 8. If we take note of the above features, we are obliged to hold that the bases upon which the report of the second Commissioner is built stand shaken and demolished. 8. If we take note of the above features, we are obliged to hold that the bases upon which the report of the second Commissioner is built stand shaken and demolished. There is a need to appoint a fresh Commissioner to do the valuation of the items on the basis of legal evidence and then do the allocation of the shares to the respective parties. We need not express any opinion at this juncture with reference to the items to be allocated for the shares of the respective parties, since only after that is done by the final decree to be passed afresh, there may be a contingency, if the parties are still disgruntled over the same, to examine the propriety or otherwise of the same, in appropriate proceedings. 9. Learned Counsel for defendants 2 and 6 would also express a grievance with regard to Valuation of the outstandings in items 23 to 42 in schedule 'B'. The second Commissioner has taken only the face value of the outstandings in items 25 to 40, and no enquiry has been made as to whether the amounts in respect of these outstandings have been realised and if so by whom and further as to whether interest should be charged and if so the quantum of interest that should be held due in respect of these outstandings. Learned Counsel for defendants 2 and 6 would also comment that the second Commissioner and equally so the court below erred in not permitting his clients to place the appropriate expert evidence through a technical man, namely, an Engineer on the question of the valuation of item 4 of immovable properties in schedule A. It must be noted here that the court below dismissed I.A. No. 418 of 1980 taken by defendants 2 and 6 seeking permission to examine an approved Engineer and a Registered Valuer. The main controversy between defendants 2 and 6 on the one side and the plaintiffs and others on the other rage over this item 4 of schedule 'A'. The Second Commissioner could have done well by taking the evidence of an expert for arriving at the value of this item, if not in respect of the other items. The main controversy between defendants 2 and 6 on the one side and the plaintiffs and others on the other rage over this item 4 of schedule 'A'. The Second Commissioner could have done well by taking the evidence of an expert for arriving at the value of this item, if not in respect of the other items. Hence, if the parties seek to place evidence through an expert, such as an engineer with regard to value of item 4 and as well as other items whose value may require assessment through an expert, certainly that should be permitted and we are giving directions to that effect in the present judgment. 10. Mr. D.K. Srinivasagopalan, learned Counsel appearing for some of the respondents, would submit that there should be a direction for rendition of accounts in respect of item 42 of schedule 'B'. This question was neither argued before, nor dealt with by the Court below in its fair order passed in support of the final decree. If the parties are entitled to the above relief and if there is a room in law and on facts for claiming the relief by making further and independent steps, they are at liberty to do so. We are not expressing any opinion on this aspect. 11. Regarding item 24, learned Counsel for defendants 2 and 6 would submit that the second Commissioner has not taken into account the interest that must be held to be due thereon. This aspect may also be gone into by the fresh Commissioner to be appointed. With regard to item 23, the second Commissioner has taken note of the amount due under the fixed deposit as given by the bank concerned. The fixed deposit stood in the name of the deceased Ismail Khan. It will have to be ascertained by the fresh Commissioner as to whether after the demise of Ismail Khan, whether any interest accrued due on this fixed deposit from the bank and if so the quantum. Item 41 is a negligible item involving Rs. 31 Learned Counsel for defendants 2 and 6 is not particular that any relief should be granted to his clients in respect of this item 41. This is recorded. Item 41 is a negligible item involving Rs. 31 Learned Counsel for defendants 2 and 6 is not particular that any relief should be granted to his clients in respect of this item 41. This is recorded. With regard to item 42, which is a share in the partnership business, learned Counsel for defendants 2 and 6 would submit that the second Commissioner here again has not made any enquiry as to who is enjoying the benefit of the share in the partnership and if so, what could be the income therefrom and what would be the entitlement of the parties to the same and the second Commissioner has not arrived at the value of the shares of the parties, after making the above assessment. All these aspects also require examination by the fresh Commissioner. The Second Commissioner has not adverted to these aspects and as a result the Court below also did not refer to these aspects and adjudicate the rights of the parties. 12. The discussion, which was preceded, obliges us to interfere in this Appeal and we allow this Appeal, set aside the second Commissioner's report and consequently the fair order and the final decree passed by the Court below in I.A. No. 409 of 1974 in O.S. No. 37 of 1963 and remit the matter back to the court below with the following directions: (1) The Court below will appoint a fresh commissioner for doing the valuation of all items set out in schedules 'A' and 'B' avoiding the infirmities noted above adhering to the directions given above; and thereafter do the allocation of the shares to the respective parties; (2) The Commissioner who will be appointed afresh by the court below, as per Clause (1) supra; shall examine the parties if they offer themselves for such examination and witnesses and in particular any expert witnesses, such as an engineer, if produced by them on the relevant aspects, as well as examine witnesses, whom he thinks proper to be examined on the relevant aspects, adhering to the provisions of the Code, referred to above. The commissioner, who has, to be appointed by the court below as per Clause (1) supra, may also permit the parties to place any documentary evidence as they may choose in support of their respective cases. The commissioner, who has, to be appointed by the court below as per Clause (1) supra, may also permit the parties to place any documentary evidence as they may choose in support of their respective cases. (3) All the above processes should be completed and the final decree should be passed by the court below pursuant to this judgment and decree of remittal, within a period of six months from the date of receipt of copies of this judgment and decree, along with the records. Considering the nature of the case and the relationship of the parties, we make no order as to costs in this appeal.