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2008 DIGILAW 173 (CAL)

Renu Bala Das v. Sandya Das

2008-02-08

BHASKAR BHATTACHARYA, RUDRENDRA NATH BANERJEE

body2008
Judgment :- (1.) THIS first appeal is at the instance of both the defendants in a suit for partition and is directed against the final decree dated 5th September, 1990 passed by the Assistant District Judge, 4th Court, Alipore, 24-Parganas (South) in Title Suit No. 39 of 1982 thereby accepting the report of the Advocate Commissioner and passing final decree for partition on thai basis. (2.) THERE is no dispute that the plaintiff had eight annas share in the property while her two uncles, the defendant Nos. 1 and 2 have four annas share each. The plaintiff acquired title to the property by virtue of two deeds of gift executed by her father and another uncle. (3.) THE suit was contested by the defendants jointly and the learned Trial judge initially passed a decree declaring the eight annas share in the property in favour of the plaintiff. Subsequently, on the application on the defendants, the learned Trial Judge further passed a second preliminary decree thereby also declaring four annas share each of the defendants. (4.) THE parties having failed to amicably partition the properties in accordance with the preliminary decree, a Partition Commissioner was appointed who after hearing the parties and making inspection submitted his report suggesting partition. (5.) THERE is no dispute that two premises being premises No. 21, Beninandan. Street and 22b, Beninandan Street are the subject-matters of the suit out of which the present appeal arises. Premises No. 22b, Beninandan Street is a small house having an area of only 14 chittaks of land, whereas, 21, Beninandan street is a large two-storied building on more than 3 cottas of land. (6.) THE Commissioner allotted the premises No. 22b, Beninandan Street exclusively in favour of the plaintiff in addition to the red marked area in 21, beninandan Street. (7.) SO far the premises No. 22b, Beninandan Street is concerned there are four rooms out of which two are in occupation of the defendant No. 2 while the other two are tenanted. (8.) THE premises No. 21, Beninandan Street was divided into three parts; the extreme nor them portion being marked as b was allotted to the defendant no. 1, the middle portion marked as a was allotted to the plaintiff and the southern portion being marked as c was allotted to the defendant No. 2. (8.) THE premises No. 21, Beninandan Street was divided into three parts; the extreme nor them portion being marked as b was allotted to the defendant no. 1, the middle portion marked as a was allotted to the plaintiff and the southern portion being marked as c was allotted to the defendant No. 2. The portion marked as c was the smallest of the lot while portion marked as a was the largest. As the defendant No. 2 obtained the smallest portion whereas the defendant No. 1 got larger portion in proportion to his share, the defendant no. 1 was asked to pay owelty money to the defendant No. 2 for equating the valuation of the shares. (9.) BEING dissatisfied, both the defendant Nos. 1 and 2 have jointly filed the present appeal. (10.) MR. Sahoo, the learned Advocate appearing on behalf of the appellant has vigorously contended that the learned Commissioner erred in law in allotting the two staircases of premises No. 21 to the defendant No. 2 and the plaintiff respectively with a direction upon the defendant No. 1 to make construction of a separate staircase. Mr. Sahoo contends that it will appear from the cross-examination of the Commissioner, that, he was not sure whether sanction could be granted for construction of the proposed staircase under the present Building rules of the Kolkata Municipal Corporation. Mr. Sahoo contends that according to the settled proposition of law prevailing in India, staircase cannot be partitioned and, therefore, in premises No. 21, Beninandan Street the two staircases should he kept common. Mr. Sahoo, therefore, prays for setting aside the report on the ground that the staircase is not partible. (11.) MR. Sinha. the learned Advocate appearing on behalf of the plaintiff, has opposed the aforesaid contention advanced by Mr. Sahoo and has contended that although his client has 50 per cent share and in comparison to her share the allotment is more or less correct, his client is prepared to forgo the largest lot a of 21. Beninandan Street by interchanging with smallest one allotted to the defendant No. 2 because of the huge delay in disposal of the proceedings. Mr. Sinha submits that if the same is allotted to his client in addition to the premises No. 22b, in that case, his client will not even claim any owelty money for equalising her share. (12.) THE aforesaid proposal of Mr. Mr. Sinha submits that if the same is allotted to his client in addition to the premises No. 22b, in that case, his client will not even claim any owelty money for equalising her share. (12.) THE aforesaid proposal of Mr. Sinha was not accepted by Mr. Sahoo, the learned Advocate appearing on behalf of the defendants-appellants. (13.) THEREFORE, the question that arises for determination is, first, whether the learned Trial Judge erred in law in accepting the Commissioners report and secondly, if the report is not accepted, what should be the allotment. (14.) AFTER hearing the learned Counsel for the parties and after going through commissioners report we find that the Commissioner himself having admitted that he cannot say whether separate staircase can be constructed in b marked portion of the premises No. 21, Beninandan Street, the allotment of b portion without making allotment of staircase was not proper. The property is a two-storied building and when the allotment of first floor is also within the lot b there was no justification of allotting that portion without being fully satisfied that a staircase can be constructed in that portion at the place suggested. We are, therefore, unable to accept the Commissioners report as it stands. (15.) THE next question is how the property should be allotted and whether even in a house where there are two staircases, the both are required to be kept as joint ones as suggested by Mr. Sahoo. (16.) IT is true that in the building, in which there is more than one storey and only one staircase, the staircase is obviously kept common at the time of partition unless the upper storey is allotted to only one of the co-sharers. However, if in a building, there is more than one staircase, a particular portion of the building with the exclusive right to use one of the staircases may be allotted to one of the co-sharers by allotting the other staircase or staircases to the other parties. However, there is no law that even if in a house, there is more than one staircase, all of those should be kept common without exclusively allotted to any of the parties. In the case before us, we have already pointed out that the plaintiff has double the share the other two defendants individually have. However, there is no law that even if in a house, there is more than one staircase, all of those should be kept common without exclusively allotted to any of the parties. In the case before us, we have already pointed out that the plaintiff has double the share the other two defendants individually have. In the premises No. 21, Beninandan Street, there are two staircases and the portion marked C with the exclusive right to use one of the staircases has been allotted in favour of the defendant No. 2 having four annas share although the said portion is smaller in comparison to his share. The learned Advocate for the plaintiff has submitted before us that she would be satisfied with the portion C in addition to the allotment of premises No. 22b in lieu of the A portion, the largest one and she is prepared to even forego the owelty money which has been allotted to the defendant No. 2 for such small portion, it is submitted before us that the defendant No. 2 has a large family. If that be the position, the lot A in premises No. 21 may be allotted to the defendant No. 2 and The lot B should be given to the defendant No. 1 with this modification thai the staircase situated in lot A would remain joint and will be exclusively allotted to the two defendants. Since it is the contention of the defendants that the staircase cannot be and should not be partitioned, they cannot have any grievance if they are allotted the joint staircase in the lot A. (17.) MR. Sahoo, in this connection, has placed strong reliance upon an unreported decision of a Division Bench of this Court in the case of Birendra nath Sarkar vs. Nripendra Nath Sarkar, in F. A. . No. 395 of 1984, disposed of on 27th March, 2000 wherein the Division Bench took note of the following observations of Mitra in Tagore Law Lecture on joint property and partition at page 361, wherein law relating to partition of a Courtyard, or staircase has been discussed: "a courtyard or staircase belonging to the co-sharers have to be used by the co-owners unthout prejudicially affecting or putting the other co-owner to a detriment. Even a courtyard or staircase which cannot be conveniently partitioned must be kept common for the use of all the co-owners. Even a courtyard or staircase which cannot be conveniently partitioned must be kept common for the use of all the co-owners. If a co-owner in a suit for partition opposed the partition of the courtyard and staircase belonging to the co-owners as incapable of partition, but the Trial court partitioned them and the First Appellate Court affirmed such partition, the matter came up before the Punjab High Court in second appeal, it was argued by the defendants that the courtyard and staircase and the platform are incapable of partition. Mahajan, J. , of the Punjab High Court has observed that according to Mitakshara and Vyavahara Mayukh the rights of way and rights of well and water belonging to joint family are indivisible and if there is no evidence that at the partition of the family estate they were divided the law will hold that they continue to retain the character of indivisibility attached to them by law having regard to the nature of the rights in question. The learned Judge has extended this principle of Hindu law in respect of the courtyard, platform and staircase and set aside the decree for partition and declared that they shall be held common by the parties as they are incapable of partition. " (Emphasis supplied) (18.) AFTER relying upon the said observations and some other decisions of different High Courts, Their Lordships came to the conclusion that in the fact of the said case, the learned Trial Judge had not addressed himself to the aforesaid aspect of the matter and had merely held that another staircase could be constructed as one staircase could not be given to all the parties. Their lordships, therefore, in the fact of the said case decided to keep the staircase joint. (19.) WE are of the view that the aforesaid observations cannot have any application to a case, where in a house, there is more than one staircase and in such a situation, one of such staircases can be allotted to a particular co-sharer. Even the aforesaid observations quoted by Their Lordships itself show that such principle is applicable where there is no scope of partitioning a staircase but not otherwise. We, therefore, find that/the said decision does not help Mr. Sahoo in any way. (20.) THE defendants in this appeal have not raised any grievance against the assessment of valuation by the Commissioner. Even the aforesaid observations quoted by Their Lordships itself show that such principle is applicable where there is no scope of partitioning a staircase but not otherwise. We, therefore, find that/the said decision does not help Mr. Sahoo in any way. (20.) THE defendants in this appeal have not raised any grievance against the assessment of valuation by the Commissioner. According to the assessed valuation, the share of the plaintiff comes to Rs. 1,16,505/-and that of each of the defendants is Rs. 58,252. 50 p. According to the allotment proposed by us, the plaintiffs share comes to Rs. 1,02,520/-, that of the defendant No. 1 would be Rs. 63,730/-without deducting half of the value of the staircase allotted in lot A and that of the defendant No. 2 is Rs. 68,360/- without adding the half of the value of the staircase. The value of the staircase in the lot A has been shown to be Rs. 1,920/-Therefore, the valuation of the share of the defendant no. 2 is approximately Rs. 3,000/-in excess than that of the defendant No.1. Nevertheless, in view of surrender of the plaintiff of her share, both the defendants are allotted more than the value of their own shares i. e. Rs. 58. 252. 50p. They should really compensate the plaintiff but as she has waived her right for purchasing the peace, we direct the defendant No. 2 to pay rs. 3,000/- to the defendant No. 1 for excess share allotted to him by us. (21.) WE, therefore, allow this appeal and set aside the allotments by modifying those to this extent that the plaintiff would be given the exclusive right in the premises No. 22b, Beninandan Road and lot C of the premises No. 21. The lot a of premises No. 21 will be allotted to the defendant No. 2 with this modification that the staircase exclusively allotted therein would be jointly used by both the defendants. The plaintiff waives her right to get any amount of owelty money notwithstanding the fact that she has been allotted lesser amount in comparison to her share. The defendant No. 2 is directed to in comparison to her share. The defendant No. 2 is directed to pay Rs. 3,000/-to the defendant No. 1 for getting the excess value from the share of the plaintiff. (22.) IN the facts and circumstances, there will be, however, no order as to costs. The defendant No. 2 is directed to in comparison to her share. The defendant No. 2 is directed to pay Rs. 3,000/-to the defendant No. 1 for getting the excess value from the share of the plaintiff. (22.) IN the facts and circumstances, there will be, however, no order as to costs. Appeal allowed.