Col. Vinod K. Mayne (Retd.) vs Brig. Deepak K. Myne And Ors.
2007 Latest Caselaw 442 Del

JUDGMENT

Swatanter Kumar, J.

1. The appellant and the respondent in the present appeal are related to each other being heirs and claiming through their father Late Major Barkat Ram. Late Sh. Barkat Ram was allotted a property bearing No. A-317, defense Colony, New Delhi on lease hold basis by a duly registered deed. According to Brig. Deepak K Mayne, son of the deceased, the ground floor, first floor and the barsati floor were constructed by his father and the construction was completed in the year 1960 in accordance with the sanctioned plans. Initially, the ground floor and first floor was given on rent to clear the outstanding loans taken by him and he himself was staying on the second floor. Major Barkat Ram died on 6.2.2005 and left a Will dated 31.3.1950 in the Army Headquarters in favor of his wife namely Smt. somitran Devi. The Will was handed over to the wife of the deceased on 18.2.1965. Thereafter the ground floor was got vacated and Smt. somitran Devi shifted to the ground floor of the suit property and second floor was given on rent. In the year 1980, the first floor of the suit premises was also got vacated from the tenants and late Joginder Kumar Mayne, the other son of the deceased along with his family shifted to the first floor of the suit property. In 1997-98, even the second floor of the property in suit was got vacated and Sh. Joginder Kumar along with his family shifted to the second floor from the first floor where he continues to stay till today. Even Sh. Joginder Kumar Mayne also died and his children were staying on the second floor. It is further averred in the plaint by the plaintiffs (Brig. Deepak K. Mayne and Sh. Joginder Kumar Mayne, deceased, through his family members) that the mother was staying on the ground floor and all were looking after her and even a maid was kept for her benefit. The deceased, Major Barkat Ram, had 5 sons and one daughter and mother. The property on the basis of the Will left by Late Major Barkat Ram was transferred in the name of Smt. somitran Devi in the records of the competent authority. It is averred by the plaintiffs in the suit that there was an oral settlement according to which, as everybody could not be accommodated in the property after the death of the mother, the property would be sold in the open market and the price would be shared between the parties. The parties to the suit had 1/6th share each, i.e. between the 5 sons and one daughter. It is further the case that Smt. Somitran Devi died intestate on 6.7.2000 leaving behind the six legal heirs. The mother/grand-mother of the parties to the suit was staying at the ground floor and whenever the defendant No. 2, Sh. Surinder K. Myne, got posted in Delhi he was staying with his mother on the ground floor. Everything was working smoothly when defendant-Col. Vinod K. Myne, very cleverly, with malafide intention got possession of the ground floor portion of the said property and requested him to hand over the original documents pertaining the said property. Different parties were occupying different portions of the property, as has been shown in the plan annexed to the plaint. In April 2005, the parties decided that the property should be sold in open market and the entire consideration be divided into six equal shares amongst the legal heirs. Plaintiff No. 1 in the suit stated that he was detected with cancer in the brain and went through chemotherapy in the year 1996 and was operated in the year 2005 and he is under life medication. He shifted on the ground floor of the property in the year 2003. All the parties i.e. the brothers and sister, met on 21.1.2006, 22.1.2006 and 25.1.2006. It is at that time that the defendant No. 1 in the suit refused to part with the documents. It came to the notice that he had fabricated documents to the extent that he alone could sell the property and create a third party interest and no other person has interest in the property. On this premises, the suit for partition of the suit property was filed in this Court.

2. The suit was contested, particularly by defendant No. 1 and separate written statements were filed on behalf of the defendant No. 1, defendants No. 2 and 4 and defendant No. 3.

3. In the written statement filed on behalf of Col. Vinod K. Myne (Retd.), it was admitted that the property was leased out in the name of his father Maj. Barkat Ram. However, the same could not be partitioned without permission of the Lesser. In terms of the Will of Smt. Somitran Devi, who lived in the property for 35 years till her death, and as per her expressed desire, the ground floor would go to defendants 1 and 2 in the suit, first floor would go to plaintiff No. 2(a) and defendant No. 3 and Second Floor (Barsati Floor) would go to plaintiff No. 1 and defendant No. 4. According to this defendant, the deceased had desired that children should live in the said property. However, the Will also prescribed that after her death, the property may be sold only if all the sons and daughters are agreed. It is stated that Smt. Somitran Devi/mother was living on the ground floor alone till 1980; she was not being looked after by the family of plaintiff No. 2 and she even was being harassed, ill-treated and tortured by them. According to this defendant, he sought study leave in Delhi and then voluntary retirement. He moved to property in question during 1997-98 and started living along with his mother on the ground floor as well as on the Second Floor (Barsati). Since then he was looking after the property as well as his mother. It was denied that anybody else contributed to look after her and/or contributed anything for her needs and welfare. It is specifically denied that there was any settlement arrived at between the parties. It is alleged that this is a story cooked up by the other party. According to him, it was never agreed that after her death, the property will be sold and divided amongst the heirs. The other parties were aware of the Will and they have concealed this fact from the Court. It was also averred in the written statement that defendant No. 2 in the suit was never posted to Delhi and he was staying in Baroda (Gujarat) while defendant No. 3 has been staying in Bangalore and defendant No. 4 has been staying in her matrimonial home in Janakpuri, New Delhi. The averment with regard to demand of original documents is also denied. It was specifically stated that he was paying the property tax for many years and Mr. Dhruv Myne had come to Delhi and was accommodated in one bed room on the ground floor. The Plaintiff No. 1 had been staying in the premises despite the fact that Army Official Accommodation was allotted to him but he refused to move out of the premises and he continued occupying the two bed rooms on the ground floor, which was given to him as guest, and disturbed the family life of that defendant. In the written statement filed on behalf of the other defendants, the facts were not disputed. However, it is stated that they have been receiving calls from different persons with regard to sale of the property and that defendant No. 1 was trying to create third party interest. Separate written statement filed on behalf of the defendant No. 3 also does not raise any dispute and in toto admit the case of the plaintiff. It was stated that the defendants are also entitled to get 1/6th share as heirs and even in view of the understanding arrived at between the parties.

4. The learned Single Judge heard the parties and found them not at issue in regard to any material fact, which would require determination for the purpose of granting relief prayed for by the parties. The Court decreed the suit vide judgment and decree dated 5th October, 2006. The relevant portion of the judgment granting relief to the parties reads as under:

12. The only question which arises for consideration is whether being a residual legatee defendant No. 1 has a right to construct a basement and further constructions to utilize the remaining FAR.

13. Rival contentions are:

Case of all heirs except defendant No. 1: As on date of will, as per Building Bye Laws then existing permissible FAR had been utilized. Intention of testator is to create equal right on the six beneficiaries evidenced by the last but penultimate para of the will wherein testator has recorded that if property is sold, all six legatees shall equally divide the sale proceeds. Thus residual bequest was of other properties not specifically mentioned in the will.

Case of defendant No. 1: Residuary bequest means not only everything not disposed of, but everything that in the events turns out not to be bequeathed.

14. As observed in the report published as Navneet Lal v. Gokul, in para 8:

From the earlier decisions of this Court the following principles, inter alia, are well established:

(1) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used;surrounding circumstances are to be considered; but that is only for purpose of finding out the intended meaning of the words which have actually been employed (Ram Gopal v. nand Lal ).

(2) In construing the language of the will the court is entitled to put itself into the testator's armchair Venkata Narasimha v. Parthsarathy (1913) 41 Ind App 51 at p. 73 (PC) and is bound to bear in mind also other matters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense.... But all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document (Venkata Narasimha's case (supra) and Gnanambal Ammal v. T. Raju Ayyar .

(3) The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory (Raj Bajrang Bahadur Singh v. Bakhtraj Kuer ).

(4) The Court must accept, it possible, such construction as would give to every expression some effect rather than that which would render any of the expressions inoperative. The Court will look at the circumstances under which the testator makes his will, such as the state of his property, of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favor of a construction which does not create any such hiatus Pearey Lal v. Rameshwar Das .

(5) It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interest, if the first interest created is valid and subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will (Ramachandra Shenoy v. Mrs. Hilda Brite

15. But as observed in the report published as Shenoy and Anr. v. Hilda Brite and Ors. while dealing with issue of construction of a will, authorities and precedents are of no help as each will has to be construed in its own terms and in the setting in which the clauses occur.

16. In Delhi, FAR is regulated by the Master Plan for Delhi notified under the Delhi Development Act 1957. FAR has varied from time to time. As per Clause 8 (iv) of the Development Code, under the Master Plan For Delhi, in respect of residential plots, a basement can be constructed, but its area is not to be counted towards FAR. The basement has to be used for domestic storage.

17. The testator has not referred to the land underneath the building. 6 different portions of the building have been bequeathed to the 6 legatees. Can it be said that the testator did not bequeath proportionate share in the land beneath to the legatees?

18. Since a building stands on land, unless a different intention is expressed, different co-owners of the building would have proportionate interest in the land.

19. Testator has clearly stipulated that in case of sale of the property, all six legatees shall equally divide the sale proceeds. The intention is clear. Each legatee has been bequeathed 1/6th share (undivided) in the land.

20. Thus as a residual legatee, defendant No. 1 has a right to 1/6th basement. Likewise all other legatees have a similar right.

21. Qua unutilized F.A.R. same is the result of changes in the Master Plan norms.

22. Unutilized FAR can be utilized qua the property only on the second floor. Bequest qua the 2nd floor reads asunder:

I bequeath the second floor to my son Deepak Kumar Myne and daughter Mrs. Kamla Bhola fully and absolutely:

23. Bequest qua second floor is full and absolute in favor of Deepak Kumar Myne and Mrs. Kamla Bhola. Second floor is partly constructed. It has an open terrace in the front. On this open terrace additional constructions can be made.

24. Second floor has been bequeathed to Deepak Myne and Kamla Bhola, fully and absolutely. Therefore, they are the legatees qua the terrace abutting the constructed portions on the second floor. It is they who can utilize the remaining FAR.

25. Suit accordingly stands disposed of partitioning property No. A-317, defense Colony, New Delhi as under:

i) Ground Floor: Half to defendant No. 1 and half to defendant No. 2. In terms of order dated 02.08.2006, half portion towards the existing drawing room shall fall to the share of defendant No. 1 and the remaining to defendant No. 2.

ii) 1st Floor: Half share to defendant No. 3 and half share to plaintiff no 2 (a).

Since the two desire to live jointly, I leave it for the 2 to separate their share as per their wishes.

iii) 2nd Floor: Half share to plaintiff No. 1 and half share to defendant No. 4. Open terrace in front belongs to them. They have a right to construct thereon.

Since the two desire to live jointly, I leave it for the 2 to separate their share as per their wish.

iv) Basement: The 6 legatees have a right to construct basement proportionate to their 1/6th share.

Since only defendant No. 1 seeks separation. He would be permitted to construct his share of the basement beneath part of his ground floor. I may not that as per law, covered area of the basement is equal to that of the ground floor coverage. Defendant No. 6 can construct a basement having area equal to 1/6th of the ground floor coverage.

26. Before parting, I may note that existing division as per will has cramped up 6 families in small areas. Each family get about 600 sq. feet covered area. I had attempted a settlement. All brothers and the sister except defendant No. 1 were united that they want to live jointly. Defendant No. 1 was grabbing excess areas. He was offered a fair market value of his share. He declined. He was given a counter offer to buy out the rest. He declined.

27. Partition as aforedirected is inevitable as it flows from the will of the mother.

28. Defendant No. 1 will vacate the second floor within 15 days.

29. Suit stands decreed as per para 25 above.

30. No costs.

5. The above judgment of the learned Single Judge is questioned by the appellant primarily on the following grounds:

(i) That in terms of the Will, the appellant was residual legatee and would be entitled to all benefits of the property not specifically mentioned in the Will.

(ii) The learned Single Judge should have put the suit for trial and the decree could not have been passed without it being preceded by a preliminary decree and appointment of Commissioner to examine the modes of partition.

6. The appellant, who appeared in person relied upon the judgment of the Supreme Court in the case of K.M. Srinivasan v. K.M. Arumugham and particularly the following observations of the Supreme Court in support of his contention:

5...It is seen that the ground floor was allotted to both the appellant and the respondent for common enjoyment and first floor was allotted to one party and second floor was allotted to another party. First floor is in the possession of the respondent consisting of 532 square feet with four rooms while admittedly the second floor consisted of one room with open terrace. Under these circumstances, the property is required to be enjoyed by the brothers in equal shares and re-partition is required to be done in accordance with the available rooms and property situation. Under these circumstances, the judgment and decrees of the High Court, appellate court and the trial Court stand set aside. The trial court is directed to appoint an Advocate Commissioner to inspect the area and work out the partition in such a way where both the parties would enjoy the property in equal share. the matter is remitted to the trial court.

7. He also relied upon another judgment of the Supreme Court in the case of Badri Narain Prasad Chaudhary and Ors. v. Nil Ratan Sarkar to contend that the suit property was so small and it could not be conveniently partitioned without destroying its intrinsic worth and thus, he should be permitted to stay in the property and all other co-owners should be paid compensation. The Court in that case held as under:

The suit property, being incapable of division in specie, there is no alternative but to resort to the process called owelty, according to which, the rights and interests of the parties in the property will be separated, only by allowing one of them to retain the whole of the suit property on payment of just compensation to the other. As rightly pointed out by K. Subba Rao, C.J. (speaking for a Division Bench of Andhra High Court in AIR 1958 Andh Pra 647), in cases not covered by Sections 2 and 3 of the Partition Act, the power of the Court to partition property by any equitable method is not affected by the said Act.

8. Reliance was also placed upon the judgment of the Supreme Court in the case of Amitava Roy and Ors. v. Sm. Jyotsna Prova Roy and Ors. and judgments of the Calcutta High Court in the cases of Mariammal v. Govindammal and Ors. , Kamal Devi v. Prabhawatti Devi (Smt.) and Ors. AIR 1985 Madras 6 in support of his plea of entitlement as residual legatee.

9. The preposition of law propounded by the appellant can hardly be disputed but we are concerned with the application of the principles ennunciated in the above judgments to the facts of the present case. The question with regard to residual legatee as well as mode of partition has been discussed by the learned Single Judge at some length. The present case is one where the share of the parties are not in dispute and it is conceded even during the course of hearing before us that each party has 1/6th share in the property. Of course the appellant wishes to take benefit of residual legatee while contending that the Will does admit ambiguity and he is entitled to unspecified portion of property to the exclusion of others. We have already noticed that the facts of the case are hardly in dispute. It is admitted that late Maj. Barkat Ram was the owner of the property and he constructed the property with his own funds. The property was subsequently mutated in the name of mother of the parties Smt. Somitran Devi, who unfortunately died on 6th July, 2000 and had left behind a Will, which was purportedly executed in the year 1999. The parties appearing before us through their counsel and the appellant in person did not raise any challenge to the Will and in fact the appellant relies upon the Will while other parties have also not disputed the Will and according to them on the basis of the Will and/or even otherwise they are entitled to 1/6 share in the property. At the cost of repetition we may notice that extent of share is not in dispute in the present case.

10. The submission with regard to residual legatee has been dealt with by the learned Single Judge in accordance with law. We are unable to see any justifiable challenge to the impugned judgment in this regard. The deceased in no uncertain terms and beyond ambiguity had bequeathed the second floor to Col. Deepak Kumar Myne and daughter Mrs. Kamla Bhola fully and absolutely. There is no occasion for the Court to read anything more to the clause of the Will as it does not admit any ambiguity. Once there is full and absolute declaration in favor of admitted heir of the deceased then to apply the residual clause of the Will to frustrate the intent of the Will would not be permissible. The clause of the Will relied upon by the appellant reads as under:

I hereby appoint my younger son Col. Vinod Kumar Myne as executor under this will and he shall also be the residuary legatee.

11. A bare reading of the above clause shows that the deceased intended to provide residual benefits to the appellant as a residual legatee in respect of the matters, which are not provided for in the Will and/or the portions of the property, which are not mentioned in the Will. The benefit of this general clause can hardly accrue to the residual legatee any right contrary to the desire of the deceased, which was not anticipated at that time or has accrued subsequently due to change in law as the specific clauses of the Will would stare the appellant in the face. The intention of the deceased was to give equal share to the parties. Such intention of equal division can also be gathered from another clause of the Will where the deceased permitted sale of the property if all parties are agreed and then to divide the sale proceeds in equal share. The clause read as under:

However, if after my death, all my sons & daughter are able to amicably decide without any disputes, to sell off the complete above property, the property may be sold out and the money so acquired after deduction of various sale/transfer expenses etc., be equally divided among the six beneficiaries mentioned above.

12. The scope of this residual clause if interpreted as argued by the appellant would be contrary to law and amount to acting contrary to the apparent intention of the deceased. The desire of the deceased to distribute the property equally between her heirs is more than apparent from cumulative reading of the Will. Once parties to the suit, who are heirs of the deceased, have accepted the Will and have even prayed before the Court that partition should be effected in terms of the Will then equal share to all is unquestionable. The concept of equal share would stand frustrated the moment the contention of the appellant that he has exclusive right in the basement and the terrace of the property to the exclusion of all other is accepted. These are the rights which are attached to the property and no matter at what point of time they have become available in relation to the suit property. Whenever, they arise they are to be divided equally between the parties and cannot be given to an individual share holder on the strength of his being residual legatee. The contention in fact is misconceived in the facts and circumstances of the case. Thus, the judgment relied upon by the appellant in the case of Amitava Roy and Ors. (supra) and other cases would have no application to the facts of the present case.

13. In the present case, there is no dispute to the extent of share, the documents relied upon by the parties as well as to the factual matrix of the case. Thus, the view of the learned Single Judge that it was a fit case for consideration on merits and pronouncement of judgment without holding regular trial keeping in view the limited relief of partition that was prayed for cannot be faulted with. In our opinion also it was not necessary to hold a regular trial. Now we have to consider whether the partition directed by the trial Court should be interfered with by the appellate Court for the reason that preliminary decree was not passed, no commissioner was appointed and the final decree is prejudicial to the rights of the parties. Again this contention of the appellant does not impress upon at all. Once the nature of the property and extent of share is admitted, nothing further is needed to be examined or determined by the Court in a suit simplicitor for partition. The appellant had raised no counter claim to expand the scope of the suit before the learned Single Judge as well as this Court he has also admitted the share of every party to the lis as well as that the property is subject to partition between the parties in accordance with law. The learned Single Judge has dealt with this aspect and has practically effected the partition between the parties in consonance with the Will of the deceased. In terms of the Will executed by Smt. somitran Devi, the property devolved as under:

a) Ground Floor .... Jointly to defendants 1 and 2.

b) First Floor .... To plaintiff No. 2(a) and defendant No. 3.

c) Second Floor .... To plaintiff No. 1 and defendant No. 4.

14. All the heirs of the deceased are receiving the benefit of the property under the Will and they are expected to respect the wish of the deceased. We may now even examine the other permissible modes of partition in relation to the property in question. The property in question is a 2-1/2 storey house being H. No. A-317, defense Colony, New Delhi. It has a ground floor, first floor and Barsati Floor. Some portions of the property are in possession of different parties of the suit while some of the portions are not. The partition directed under the impugned judgment is acceptable to all others except the appellant. According to the appellant, he alone should be permitted to retain the property and all others should be given a reasonable compensation for relinquishing and giving up all their interests in the property to the extent of their 1/6th share each. In other words, the 1/6th owner of the property should be permitted to retain the entire property while the other 5 equal share holders should be compelled by the Court to leave the property on reasonable compensation, which is obviously not at par with the market value of that share in the property.

15. The other share holders have also expressed the desire to live in their parental property as they also have emotional attachment to the property as their parents were living in the said property. Despite this, they were willing to accept the partition as directed under the impugned judgment or even were ready for sale of the property in the open market and distribution of the sale proceeds in six equal shares. Even this offer was declined by the appellant. At this stage it may be useful to refer to the order the Court dated 14th February, 2007 passed in the present appeal, which reads as under:

The appellant has been taking time on the pretext that the matter is being compromised. The court had granted time to him for this purpose but nothing has yet been finalized. In the court, firstly the appellant himself gave two offers, one was to give sharing of floor basis which was practically accepted by the respondent. Thereafter he changed over to say that he should have rights on the terrace to which respondent also agreed that the appellant should have 50% share even on the terrace and would share ground floor with respondent No. 3 as per the proposal given by him.

Parties were directed to negotiate and come to final terms but when the case was called up again the appellant who appears in person stated that even that was not acceptable to him and he wanted that the residue rights in terms of the Will should be determined.

List this case for final disposal on 20th February, 2007 on which date the record of the suit be called for.

16. It is evident from the bare reading of the above order that the respondents in the appeal were even prepared to forego certain extent of their share, which they could legitimately claim in terms of the impugned judgment in relation to 50% portion of terrace instead of dividing it into 1/6. This offer was also declined by the appellant on the date where after we had proceeded to hear arguments. Despite grant of enough opportunities to amicably settle the matter in regard to partition of the property, the approach of the appellant was in negative and except disagreeing to the various proposals put forward by the respondents including the mode of partition as directed under the impugned judgment, he made no positive offer so as to partition the property in accordance with law. We had also called for record of the suit from where it appears that vide order dated 2nd August, 2006, the Court had noticed that attempts of settlement were being made and all the parties except defendant No. 1 (appellant herein) were cooperating. The reason for this appears to be that he was occupying major portion of the property i.e. second floor and part of ground floor, which was in excess of his entitlement of 1/6 share in the suit property. The respondents herein had conceded before the learned Single Judge that the property should be partitioned as per the Will. There also the appellant asked for adjournment after adjournment as he was occupying major portion of the property. Vide its order dated 25th July, 2006, keeping in view the limited controversy involved in the present case, a Local Commissioner was also appointed to make specific inquiries keeping in mind the suggested modes of partition in terms of the Will, which the parties wanted the Court to enforce. The report of Local Commissioner was submitted to the Court and obviously had been taken into consideration before passing the final decree. During the course of hearing of the suit, order dated 2nd August, 2006 was passed, which discussed the entire controversy and position of the parties in relation to the suit property in great detail. This order was assailed in appeal before a Division Bench of this Court in FAO (OS) 519/2006, which was disposed of vide order dated 18th August, 2006 observing that the report of the Local Commissioner may be looked into by the Court. The findings recorded by the learned Single Judge determining the respective shares of the parties in light of the Will propounded by the appellant were accepted and the parties were given opportunity to bring the matter to the notice of the learned Single Judge in regard to implementation of the order. It is after number of dates and putting considered thought to the various modes of partition, the Court have partitioned the property by giving possession of respective floors to the parties in terms of the Will as far as possible and practicable. We may also notice here that option for sale of the property in the open market is also given to the parties. As already noticed, the respondents had agreed but the appellant had serious objection even in that regard. Where extent of share is admitted, one party cannot be permitted to enjoy the benefit of the property to the exclusion of others much in excess of the share of that party.

17. The findings recorded in the impugned judgment are in no way erroneous, contrary to the record and for that matter to the settled legal principles.

18. While relying upon the judgment of Supreme Court in K.M. Srinivasan (supra) the appellant contended that a preliminary decree declares the right or share of the parties to the partition. Once shares have been declared, a further inquiry still remains to be done for actual partitioning the property and placing them in separate portion of the divided property. Then alone a final decree can be passed. The requirements of this judgment have been squarely satisfied by the Court in the impugned judgment. There is no dispute with regard to the determination of shares in the property and the respective portions of the property to which the parties are entitled to and the possession thereof in terms of the impugned judgment. It is not mandatory that in every case the court has to permit parties to lead evidence after passing a preliminary decree. The principle has to be applied to a case keeping in view the facts and circumstances of the case.

19. In the case of Badri Narain Prasad (Supra), the Supreme Court had ennunciated equitable principle of Just Compensation, which is to be paid in lieu of the share of other co-owners of the property where the property was incapable of being division in specie. The Court permitted the process of owelty to be adopted. The ancillary issue before such a principle could be applied to, is what is the just compensation? Just compensation normally should be the market value of the property, which is divided into prescribed shares or at least an amount, which is quite close to such an amount. None of the ingredients of the aforesaid judgment are satisfied in the present case inasmuch as the property has been partitioned and by such partition majority of the shareholders are satisfied. Secondly, the appellant has never offered what is the just compensation payable according to him. Just because he is in possession of portion of the property in excess of his share, he cannot be permitted to continue to enjoy such benefit without discharging his obligation towards the other co-owners. There is no justification or reasonable ground made out by the appellant, which could justify interference by us with the impugned judgment.

20. Consequently, we dismiss the present appeal with costs, which may be computed by the registry in accordance with law.