Order XXVI Rule 13 & 14 CPC | Can't Lay Down Hard & Fast Rules For Partition Of Joint Family Properties: Bombay High Court

The Bombay High Court has reiterated that the supervisory, discretionary powers conferred upon it under Article 227 of the Constitution is to ensure proper administration of justice and the same cannot be exercised merely to correct an error on facts."The powers of this Court under Article 227 of the Constitution are wide and the main object of it is to keep strict administration and judicial control on the administration of justice. Just because a party seeks to challenge an order of a subordinate Court merely due to some insignificant errors on facts, the discretionary powers cannot be exercised," Justice Prithiviraj K Chavan observed.The observation was made while dealing with a petition under Article 227, challenging the order of a Single Judge which had rejected the report submitted by the Court Commissioner in a case relating to partition of suit property.A compromise was entered between the parties following which, a decree was drawn recording relinquishment of claims. A Court Commissioner came to be appointed in the Execution Proceedings, whose report was ultimately rejected by the Court.Thereafter, another Court Commissioner was appointed whose report was also rejected pursuant to the objections raised by the Respondents.The Petitioner argued that Commissioner and submitted a report as per the direction given in the order and, therefore, there was no reason to reject the same. It was alleged that the respondent had unnecessarily objected even the second report to obstruct the proceedings.The petitioner further submitted that specific directions have been issued by the trial Court while passing a preliminary decree as to the manner in which the partition is to be effected amongst the plaintiff and defendants. Such directions cannot be altered by a Court finalizing a decree, in view of the Order XXVI Rule 13 & 14 CPC.Rules 13 and 14 contemplate as to how in a preliminary decree for partition, the Commission can be effected for partition of immovable property.The Respondent on the other hand argue that it is very much essential to measure the plots in question as per the sale deeds and then to effect partition. Unless shares are carved out qua the respective parties, partition cannot be effected.At the outset, the Court stated that most of the submissions are in the form of challenging the order on merits which, it cannot go into the same as this Court is not sitting in appeal over the said order. Coming to the issue partition, the Court said,"The law is no more res integra on the aspect as to how Commission is to be effected in respect of partition of immovable property. There can be no hard and fast rule laid down while effecting partition of joint family properties. While effecting partition of joint family properties, it may not be possible to divide any property by metes and bounds. The allocation of properties of unequal value may come to the share of a member of a joint family at the time of effecting partition but for that necessary adjustments have to be made. Sometimes, it may also happen that some of the cosharers on partition may not get any share in immovable property. Therefore, there cannot be any hard and fast rule laid down in that regard."The Court explained that it depends upon the facts and circumstances of each case, the nature of immovable property and the number of such properties as also the number of members amongst who it is required to be divided. It added,"Sometimes, it also happen that properties of a larger value may go to one member. Property of a lesser value may go to another. What is necessary is the adjustment of the value by providing for payment by one who gets property of higher value." Reliance was placed on ML Subbaraya Setty (Dead) by LRS. and others Vs. M. L. Nagappa Setty (Dead) by LRS and others, (2002) 4 SCC 743, whereby the Supreme Court reiterated the position of law in respect of partition of immovable properties through the Court Commissioner.In the instant case, the Court noted that the Commissioner had determined 1/6th share by demarcating four boundaries as per sale deeds, yet the area did not tally with that of sale deed. "Since there is no clarification on that aspect, the learned Judge rejected the report of the Court Commissioner. The order impugned is sans any perversity or illegality. The executing Court had properly exercised it's jurisdiction vested in it. The powers of this Court under Article 227 of the Constitution are wide and the main object of it is to keep strict administration and judicial control on the administration of justice. Just because a party seeks to challenge an order of a subordinate Court merely due to some insignificant errors on facts, the discretionary powers cannot be exercised. Consequently, the petition is devoid of merits and hence stands dismissed." The single judge advised against unnecessarily delaying or protracting the execution and stated that it is expected...

Order XXVI Rule 13 & 14 CPC | Can't Lay Down Hard & Fast Rules For Partition Of Joint Family Properties: Bombay High Court

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Unequal value may come to share of a member but for that, necessary adjustments have to be made.

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