IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
THURSDAY, THE 23[rd] DAY OF SEPTEMBER 2021 / 1ST ASWINA, 1943 RFA NO. 575 OF 2017 (H)
AGAINST THE JUDGMENT IN F.D.IA 2170/2015 IN OS 786/2012 OF II ADDITIONAL SUB COURT, KOZHIKODE
## APPELLANTS/PETITIONERS/PLAINTIFFS:
- 1 M.V.GEETHA, AGED 56 YEARS, D/o MANATHANATH VARATTODI DAMODARAN, THALAKKULATHOOR AMSOM DESOM, KOZHIKODE.
- 2 M.V.SUDHA, AGED 54 YEARS, D/o MANATHANATH VARATTODI DAMODARAN, THALAKKULATHOOR AMSOM DESOM, KOZHIKODE.
- 3 M.V.BABY, AGED 52 YEARS, D/o MANATHANATH VARATTODI DAMODARAN, THALAKKULATHOOR AMSOM DESOM, KOZHIKODE.
4 M.V.MEENA, AGED 49 YEARS, D/o MANATHANATH VARATTODI DAMODARAN, THALAKKULATHOOR AMSOM DESOM, KOZHIKODE. BY ADVS. SRI.V.V.SURENDRAN SRI.P.A.HARISH
RESPONDENT/2nd RESPONDENT/2 nd DEFENDANT:
1 M.V.SHERY, AGED 47 YEARS, S/o MANATHANATH VARATTODI DAMODARAN, RESIDING AT KUTTIYEDATH HOUSE, PURAKKATTIRI, THALAKKULATHOOR AMSOM DESOM, P.O.THALAKKULATHUR, KOZHIKODE-673317. (DIED)
## ADDITIONAL R2 AND R3
ADDL.R2 DHANYA SHERY, AGED 39 YEARS, W/o LATE SHERY, RESIDING AT KUTTIYEDATH HOUSE, PURAKKATTIRI, THALAKKULATHOOR AMSOM DESOM, P.O.THALAKKULATHUR, KOZHIKODE-673317
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ADDL.R3 SANVY SHERY (MINOR), AGED 8 YEARS, D/o LATE SHERY, RESIDING AT KUTTIYEDATH HOUSE, PURAKKATTIRI, THALAKKULATHOOR AMSOM DESOM, REPRESENTED BY MOTHER AND GUARDIAN DHANYA SHERY, AGED 39 YEARS, W/o LATE SHERY, RESIDING AT KUTTIYEDATH HOUSE, PURAKKATTIRI, THALAKKULATHOOR AMSOM DESOM, P.O.THALAKKULATHUR, KOZHIKODE-673317 (THE LEGAL HEIRS OF DECEACED RESPONDENT ARE IMPLEADED IN THE PARTY ARRAY AS ADDITIONAL RESPONDENTS 2 AND 3 VIDE ORDER DATED 30/09/19 IN I.A.1/19 BY ADVS. SRI.V.T.MADHAVANUNNI SRI.V.A.SATHEESH
THIS REGULAR FIRST APPEAL HAVING COME UP FOR FINAL HEARING ON 23.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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## **CR**
## **JUDGMENT**
Based on a preliminary decree for partition into seven equal shares by metes and bounds, a final decree was passed granting an “owelty” of Rs.27 lakhs to the mother out of her due share over 6.5 Acres of land, which is under challenge.
2. It appears that the trial court has committed a grave mistake while ordering “owelty” of Rs.27 lakhs towards the share of mother instead of dividing the property of 6.5 Acres of land into seven equal shares and thereby taken away the very concept of “principle of owelty” and the requirement to be complied with under Sections 2 and 3 of The Partition Act, 1893.
3. It is not legally permissible to substitute money in the place of landed property while effecting partition by metes and bounds, except by way of “owelty” or moiety. The expression “owelty” stands for compensation to be given so as to adjust inequality of shares in a partition when
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allotment of equal shares found to be not workable, practicable or possible. Some times, while effecting partition, it will not be possible to divide the property by metes and bounds. A division of property must be effected without causing destruction to the intrinsic value of the property and it should be minimized to the negligible extent. If that is not possible, then only a division of property without affecting the instrinsic value of the property is permissible, though it will result in unequal shares, which can be adjusted by ordering “owelty”. The very principle behind it is to preserve the property with its intrinsic value to the possible extent without causing destruction while effecting partition by metes and bounds. When partition by metes and bounds is not possible without causing destruction to the intrinsic value of property, the method of “owelty” can be applied viz., by substituting money in the place of property to the extent of making it equitable. That does not mean that instead of giving property, money can be substituted by ordering payment of value of the share. Further, a deviation from the final decree in the allotment of share by applying the
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principle of “owelty” can be done only when a division by metes and bounds becomes impracticable or impossible while maintaining the intrinsic value of the property, for which neither Section 2 nor Section 3 of the Partition Act is applicable. Necessarily, when large extent of property is involved and the division to be effected is lesser in number, it would not make the division by metes and bounds, either impracticable or impossible, wherein, the court cannot order division of unequal shares by providing “owelty”, otherwise it would result in destruction of the very purpose and concept of “principle of owelty” and partition by metes and bounds. “Owelty” is really a practical solution available with the court to effect a final decree in accordance with the preliminary decree to the possible extent when division by metes and bounds found to be not convenient or practicable without causing destruction of the intrinsic value of the property.
4. A court sale of the property under Section 2 of
the Partition Act, 1893 can be resorted to only when it appears by reason of nature of the property to which the partition to be effected or of the number of share holders
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therein or of any other special circumstances, a division of property cannot be reasonably or conveniently be made. Like wise, the benefit conferred under Section 3 of the Act to purchase the share of others by any sharer would come into play only when a sale was ordered under Section 2 of the Act. The condition enumerated therein are condition precedent so as to bring the matter within the sweep of either Section 2 or Section 3 of the Act. In the absence of any such conditions precedent,it is well within the jurisdiction of the court to adopt and apply any equitable method for division of property without the re-course under Sections 2 and 3 of the Act, when a division by metes and bounds found to be not feasible. The method that is generally followed in such situation is the principle of “owelty” on payment of “just compensation”. The expression “just compensation” shall not be misunderstood with the value of property that can be assessed by capitalization method, but it should reflect the actual value of the property with all legal incidents thereof.
5. The Apex Court in **Badri Narain Prasad Choudhary and Others v. Nil Ratan Sarkar [(1978) 3 SCC 30]** while
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recognizing the necessity to satisfy the condition precedent so as to apply Sections 2 and 3 of the Act, had laid down that a request of any of the share holders interested individually or collectively in the property in the suit to the extent of one moiety or upwards for the sale of property and its distribution is a _sine qua non_ for directing a sale. But the request for sale envisaged by Section 2 of the Act must be one for public sale.
6. There shall not be a misunderstanding between the term “owelty” and “moiety”. Moiety would come into play, only when Sections 2 and 3 of the Partition Act is applied for effecting sale of the property when partition by metes and bounds found to be not possible or practicable. Moiety means generally half value or more either individually or collectively for purchase of the share by exhausting the benefit under Section 3 of the Act. After the determination of shares of parties, if it is found not feasible to effect a partition, any of the co-sharers can apply to put the
moiety share for sale.
7. It is very strange that the “owelty” ordered in the instant case comes to Rs.27 lakhs, though the subject
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of partition comes to 6.5 Acres, which is sought to be partitioned into seven equal shares by metes and bounds. Instead of dividing the landed property by metes and bounds into seven equal shares, an amount of Rs.27 lakhs was substituted towards the share of the mother. This would show the high injustice suffered by one of the sharers at the final decree stage.
Hence, the final decree is set aside. The matter is remanded back to the trial court for passing final decree in accordance with the law in force. The parties shall appear before the trial court on 12/10/2021. The appeal is allowed accordingly. No costs.
Sd/-
## **P.SOMARAJAN**
**JUDGE**
sv
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## **APPENDIX**
RESPONDENTS' EXHIBIT:
EXHIBIT B1 : CERTIFIED COPY OF THE REGISTERED WILL DATED 06.11.2012 EXECUTED BY M.V. SULOCHANA.
// TRUE COPY //
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P.S. TO JUDGE
