Madras High Court
T.P.Abdul Rahiman vs / on 14 July, 2025
Author: G.Jayachandran
Bench: G.Jayachandran
A.S.No.358 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 14.07.2025
Coram:
THE HONOURABLE Dr. JUSTICE G.JAYACHANDRAN
Appeal Suit No.358 of 2022
& C.M.P.No.13340 of 2022
T.P.Abdul Rahiman,
S/o.Mariyumma,
‘Soubagya Fancy Light',
Chokli, P.O. Chokli,
Mahe. ... 2nd Defendant/Appellant
/versus/
1. Thayat Pudukudi Subaida,
W/o.C.M.A. Basheer,
at Duabi through Power of Attorney Holder,
K.Balakrishnan,
S/o. Kunhikrishnan Nair,
At Keexhanthoor House,
Chalakkara, P.O., New Mahe.
2. T.P.K.Yousuf,
S/o Mariyumma,
at 'Safa', P.O.Palloor, Mahe
3. T.P.Mustafa
S/o Mariyumma,
At Milan, Near Govt.Hospital,
Palloor, Mahe.
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A.S.No.358 of 2022
4. T.P.Shanavaz @ Moidu
S/o Mariyumma,
No.26/11, Egyptian Block,
2nd Floor, Ha Road, Bangalore-51,
Karnataka. ...Respondents1, 3 & 4/
Defendants 1, 3 & 4/Respondents
Appeal Suit has been filed under Section 96 read with Order 41 Rule 1 of
the Civil Procedure Code, pleased to set aside the judgment and decree dated
29.04.2022 made in I.A.No.136 of 2019 in O.S.No.48 of 2015 on the file of the
Learned Subordinate Judge, Mahe and allow the above appeal.
For Appellant : Mr.Jeremiah Crecory John
For Respondents : Mr.V.Manohar,
for Mr.A.C.Susheel Kumar, for R1
: No appearance, for R2 & R3
: Not press, for R4
JUDGMENT
The appeal is filed by the 2nd defendant in the partition suit
challenging the final decree passed, insofar as item No.1 of the suit schedule
property, wherein the value of the property has been ascertained at Rs.22,00,200/-
and 2/18 share has been allotted to the appellant herein.
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2. The appeal is based on the short point that the market value of the
item No.1 property is more than Rs.1.25 crores and even the plaintiff himself has
admitted in collateral proceedings that the property is worth more than
Rs.1,10,00,000/-. Therefore, the fixation of Rs.22,00,200/- as the value of the
entire item No.1 property is abysmally low.
3. The Learned Counsel appearing for the 1st respondent submitted
that untested statement of any party cannot be a basis for fixation of value. In the
present case, the value of Rs.22,00,200/- been fixed by the Court below based on
the Commissioner's report. In fact, the value fixed by the trial Court is solely
based on the Commissioner report.
4. This Court, on perusing the preliminary decree and the final decree
proceedings, finds that the appellant herein is entitled to 2/18 share in Item No.1
property. Since the property is indivisible, the value been fixed at the rate of
Rs.22,00,200/- by the Court below in the final decree proceedings, based on the
Commissioner's report. The property consists of land and a dwelling house. It
was previously occupied by the appellant herein. Pursuant to the preliminary
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decree and final decree, the appellant has vacated the premises and handed over to
the plaintiff. While valuing the property for the purpose of division, the Court
below had fixed the value of Item No.1 of the property at the rate of 1818 sq.m
and valued the building been assessed to Rs.12,00,200/-. Accordingly, for the
total value of Rs.22,00,200/-, a sum of Rs.2,44,467/- been given to the appellant
after equalisation of the shares.
5. As stated earlier, it is the contention of the appellant that the value
of the property to be fixed at Rs.1,25,00,000/- instead of Rs.22,00,200/-. However,
this contention is without any basis, except for a stray statement made by the
plaintiff in a collateral proceedings. It is also pertinent to note that there are other
properties in the same vicinity with different survey numbers, which are also the
subject matter of the partition.
6. This Court finds that, for those properties, the Court below had
fixed different value by citing reasons particularly, they are vacant lands located
but interior, away from the road.
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7. This Court, on perusing the values assigned to each of those
properties and the mode of equalisation, including the owelty paid to the parties, is
of the view that the plaintiff, who had been given 14/18 share in item No.1
property, is now allowed to take possession of the said property from the appellant
herein. It is reported that the possession already been delivered. Therefore, the
owelty paid to the appellant in respect of item No.1 property, which was in his
possession, must be reasonable and justifiable, taking note of the fact that it was
under his enjoyment till passing of the preliminary decree.
8. Accordingly, this Court is of the view that the owelty paid to the
appellant should be enhanced at Rs.1,22,233/-, which will be 50% of the value
fixed on the property. This additional owelty will be awarded for handing over
possession of the property to the plaintiff. It is also brought to the notice of this
Court that, at the time of admitting the appeal, an interim order of creating a
charge over item No.1 property was ordered in C.M.P.No.13340 of 2022 dated
28.11.2022.
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9. In view of the disposal of the appeal with the direction that the 1st
respondent should pay a sum of Rs.1,22,233/- to the appellant, on payment of said
amount, the charge over item No.1 property shall stand removed. A period of two
months is granted for payment of Rs.1,22,233/-.
10. In fine, the Appeal Suit is disposed of. There shall be no order as
to costs. Consequently, connected Miscellaneous Petition is closed.
14.07.2025
Index :Yes/No.
Neutral citation :Yes/No.
bsm
To,
1. The Learned Subordinate Judge, Mahe.
2.The Section Officer, V.R.Section, High Court, Madras.
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Dr.G.JAYACHANDRAN,J.
bsm
14.07.2025
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