PETITIONER:
A. VISWANATHA PILLAI AND ORS.
Vs.
RESPONDENT:
SPECIAL TAHSILDAR FOR LAND ACQUISITIONNO. IV AND ORS.
DATE OF JUDGMENT09/08/1991
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
KASLIWAL, N.M. (J)
CITATION:
1991 AIR 1966 1991 SCR (3) 465
1991 SCC (4) 17 JT 1991 (3) 575
1991 SCALE (1)286
CITATOR INFO :
D 1992 SC 974 (8)
ACT:
Land Acquisition Act, 1894: Ss. 4, 9, 18--Land acquisi-
tion--Hindu coparcenery property--Acquisition of--Compensa-
tion--Reference under s. 18 by one coparcener--Other copar-
ceners not parties to reference--Whether a reference on
behalf of all co-parceners--Entitlement of enhanced compen-
sation--Whether all coparceners entitled to compensation
pro-rata as per their shares--Whether State should take
technical objections to entitlement of claim.
HEADNOTE:
The three appellants and their eldest brother, under a
family partition, which took place in 1954, kept in common
certain ancestral properties under the management of the
latter. These properties were acquired in pursuance of a
notification dated 15.1.1967 under s. 4(1) of the Land
Acquisition Act, 1894. The eldest brother filed objections
referring to the partition deed of 1954 and stated that each
of the four brothers had 1/4 share in the properties in
question. Ultimately the compensation was made to all the
brothers at 1/4th share each.
The eldest brother sought six references under s. 18
being dissatisfied with the awards. The Civil Court enhanced
the compensation and granted an award of 1/4th share thereof
to the eldest brother with solatium and interest, but did
not award the balance amount to the appellants in their
respective shares on the ground that they did not jointly
ask for the reference. Out of the remaining three brothers
two asked for reference for two awards only and the last one
did not ask for reference of any award. On appeal, the High
Court confirmed the award and decrees of the civil court.
Aggrieved, the appellants preferred appeals by special leave
to this Court.
On the question: whether in a reference under s. 18 of
the Land Acquisition Act sought for by one of the co-owners,
the other co-owners, who did not expressly seek reference
are entitled to enhanced compensation pro-rata as per their
shares?
Allowing the appeals, this Court,
466
HELD: 1.1 The Courts below committed a manifest error in
refusing to pass an award and payment thereof to the appel-
lants. The coparceners claimants-appellants in the instant
case were entitled to payment of the enhanced award by the
Civil Court pro-rate of their 1/4th share each with 15 per
cent solatium and 4 per cent interest as awarded by the
Civil Court. [471C-D]
1.2 It was not in dispute that under the partition deed,
the four brothers as coparceners kept in common the acquired
property under the management of the eldest brother. The
income derived therein was being shared in proportion to
their shares by all the brothers. Therefore, it remained as
joint property. As co-owners everyone was entitled to 1/4th
share therein. [468E; 470F]
1.3 When one of the co-owners or coparceners made a
statement in the reference application that the acquired
property belonged to him and his brothers, that he himself
and his brothers were dissatisfied with the award made by
the Collector and that they were entitled to higher compen-
sation, it would be clear that he was making a request,
though not expressly stated so but by necessary implication
that he was acting on his behalf and on behalf of his other
co-owners or coparceners and was seeking a reference on
their behalf as well. What was acquired was their totality
of right, title and interest in the acquired property and
when the reference was made in respect thereof under s. 18,
they were equally entitled to receive compensation pro-rata
as per their shares. [468F; 471A-B]
2.1 One of the co-owners can file a suit and recover the
property against strangers and the decree would ensure to
all the co-owners. A co-owner is an owner of the property
acquired but entitled to receive compensation pro-rata.
[470A & E]
2.2 A co-owner is as much an owner of the entire
property as a sole owner. It is not correct to say that a
co-owner's property was not his own. He owns several parts
of the composite property along with others and it cannot be
said that he is only a part owner or a fractional owner in
the property. [470C-D]
2.3 No co-owner has a definite right, title and inter-
est in any particular item or a portion thereof. On the
other hand he has right, title and interest in every part
and parcel of the joint property or coparcenary under Hindu
Law by all the coparceners. [470A-B]
Kanta Goel v.B.P. Pathak & Ors., [1977] 3 S.C.R. 412; Sri
Ram
467
Pasricha v. Jagannath & Ors., [1977] 1 S.C.R. 295 and Pal
Singh v. SunderSingh (dead) by Lrs. & Ors., [1989] 1 S.C.R.
67, relied on.
3. It is surprising that the State having acquired the
property of a citizen would take technical objections re-
garding the entitlement of the claim. The State certainly is
right and is entitled to resist claim for enhancement and
lead evidence in rebuttal to prove the prevailing price as
on the date of notification and ask the court to determine
the correct market value of the lands acquired compulsorily
under the Act. But so far as the persons entitled to receive
compensation are concerned, it has no role to play. It is
for the claimants inter se to lay the claim for compensation
and the Court would examine and award the compensation to
the rightful person. [469E-F]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 54 to 56
of 1975.
From the Judgment and Order dated 29.6.1973 of the
Kerala High Court in A.S. Nos. 603,604 and 605 of 1969.
N. Sudhakaran for the Appellants.
K.V. Viswanathan, K.R. Nambiar and T.T. Kunhikannan for
the Respondents.
The Judgment of the Court was delivered by
K. RAMASWAMY, J. These appeals by special leave are
directed against the judgment and decrees of Kerala High
Court in A.S. Nos. 603,604 and 605 of 1969 dated June 29,
1973 confirming the award and decrees of the Civil Court in
L.A.O.P. No. 413 etc. of 1964 and 370 and 405 of 1966 dated
January 16, 1969. The notification under section 4(1) of the
Land Acquisition Act 1894 (for short ‘the Act’) was pub-
lished in the gazette on October 25, 1960 acquiring an
ancient Chalai Anicut together with embarkments sluices,
culverts etc. by six notifications. This ancient Chalai
Anicut originally belonged to Arumughom Pillai. On his
demise it devolved on his four sons Venkatachalam Pillai,
Vishwanathan Pillai, Pasupathy Pillai and Subhapathy Pillai
by intestate succession as coparceners. By partition deed
Ex. B-23 dated December 22, 1954, the four brothers parti-
tioned certain properties but kept in common acquired Chalai
Anicut under the management of the eldest brother Venkata-
chalam Pillai. Pursuant to the notice issued under section
9(3) and 10 of the Act, Venkatacha-
468
lam filed his objections making reference therein to the
partition deed No. 2437 of 1954 in the Registrar’s office,
Palghat and that each of the brothers had 1/4 share in the
Anicut and irrigation system. After the award made by the
Land Acquisition Officer compensation was made to all the
brothers at 1/4th share each. Venkatachalam sought six
references under section 18 as he was dissatisfied with the
awards made by the Land Acquisition Officer. The Civil Court
enhanced in all to a sum of Rs.52,009.40 p. The State filed
no appeal against the enhancement of the compensation. The
Civil Court granted an award of 1/4 share thereof to Venka-
tachalam Pillai with solatium at 15 per cent and interest
thereon at 4 per cent and did not award the balance amount
to the appellants in their respective shares on the ground
that they did not jointly ask for reference but only one
alone asked for. The two brothers asked for reference for
two awards only and the last one did not ask for reference
of any award. On appeals, the High Court confirmed the award
and decrees of the Civil Court. Thus these three appeals at
their behest. Common question of law arises in these appeals
and hence they are disposed of by a common judgment.
The sole question for decision is whether in a reference
Sought for by one of the co-owners whether the other co-
owners who did not expressly seek reference, are entitled to
enhanced compensation pro-rata as per their shares. It is
not in dispute that under the partition deed, the four
brothers as coparceners kept in common the acquired property
and Venkatachalam was in management thereof and each are
entitled to 1/4 share in the ancient Anicut and the irriga-
tion system. It is also undisputed that total enhanced
compensation is Rs.52,009.40 p. Therein all the four broth-
ers including the appellant are entitled to 1/4 share each.
In the reference application made by the Venkatachalam
indisputably he mentioned that the acquired property be-
longed to him and his other brothers and the compensation
awarded by the Land Acquisition Officer was inadequate and
very low. It was also stated that they Should get an en-
hanced amount at the figure specified in the reference
application. Undoubted he stated therein that he is entitled
to 1/4 share. What he stated thereby was that of his enti-
tlement of 1/4 share of the total enhanced compensation and
obviously, after the reference on par with his three broth-
ers, he is entitled to receive compensation at 1/4 share.
The Courts below disallowed the payment to the appellants on
the ground that there is no mention in the
469
claim petition of the partition deed; that they are the co-
owners and that there is no averment that the Venkatachalam
was seeking reference under section 18 on his behalf and on
behalf of his other three brothers. As regards the first two
grounds are concerned they are palpably incorrect. It is
seen that an express averment was made in the objections
filed pursuant to notice under section 9(3) and 10 and also
in his reference application under section 18 of the Act,
that there was prior partition and each of the brothers are
entitled to 1/4th share and that they are dissatisfied with
the award of the Collector. Undoubtedly there is no express
averment in the reference application under section 18 that
he is seeking a reference on his behalf and on behalf of his
three brothers. It is contended by the counsel for the State
that the pleadings are to be strictly construed and that as
the reference was sought for only by Venkatachalam of all
the six awards the other three brothers are not entitled to
any share in the enhanced compensation. In support thereof
it is also further contended that Viswanathan and Pasupathy
had only asked for reference in respect of two awards and
Sabhapathy Pillai made no request for reference against any
of the six awards made by the Collector. It is true that
Viswanathan and Pasupathy made such request in respect of
two awards and Sabhapathy did not make any request for
reference against any of the awards. But what would be the
consequence in law is the question. It is surprising that
the State having acquired the property of a citizen would
take technical objections regarding the entitlement of the
claim. The State certainly is right and entitled to resist
claim for enhancement and lead evidence in rebuttal to prove
the prevailing price as on the date of notification and ask
the court to determine the correct market value of the lands
acquired compulsorily under the Act. But as regards the
persons entitled to receive compensation are concerned it
has no role to play. It is for the claimants inter se to lay
the claim for compensation and the court would examine and
award the compensation to the rightful person. As seen in
the objections pursuant to the notice under section 9(3) and
10, Venkatchalam made necessary averments that himself and
his brothers had 1/4 share in the Anicut and irrigation
system pursuant to the partition deed referred to therein.
In his reference application under section 18 also he
470
reiterated the same and stated that the amount awarded by
the Collector was in adequate and that they were dissatis-
fied with it and that they are entitled to more. It is
settled law that one of the co-owners can file a suit and
recover the property against strangers and the decree would
enure to all the co-owners. It is equally settled law that
no co-owner has a definite right, title and interest in any
particular item or a portion thereof. On the other hand he
has right, title and interest in every part and parcel of
the joint property or coparcenery under Hindu Law by all the
coparceners. In Kanta Goel v.B.P. Pathak & Ors,. [1977] 3
S.C.R. 4 12, this Court upheld an application by one of the
co-owners for eviction of a tenant for personal occupation
of the co-owners as being maintainable- The same view was
reiterated in Sri Ram Pasricha v. Jagannath & Ors., [1977]1
S.C.R. 395 and Pal Singh v. Sunder Singh (dead) by Lrs. &
Ors., [1989] 1 S.C.R. 67. A co-owner is as much an owner of
the entire property as a sole owner of the property. It is
not correct to say that a co-owner’s property was not its
own. He owns several parts of the composite property along-
with others and it cannot be said that he is only a part
owner or a fractional owner in the property. That position
will undergo a change only when partition takes place and
division was effected by metes and bounds. Therefore, a co-
owner of the property is an owner of the property acquired
but ‘entitled to receive compensation pro-rata. The State
would plead no waiver nor omission by other co-owners to
seek reference nor disentitle them to an award to the extent
of their legal entitlement when in law they are entitled to.
Since the acquired property being the ancestral coparcenary
and continued to be kept in common among the brothers and
the income derived therein was being shared in proportion of
their shares by all the brothers it remained as joint
property. As co-owners everyone is entitled to 1/4 share
therein. It was also laid by this Court in a recent judgment
in Ram Kumar & Ors. v. Union of India & Ors., [1991] 1 SCR
649 that it is the duty of the Collector to send full infor-
mation of the survey numbers under acquisition to the court
and make reference under section 18 and failure thereof is
illegal. The same ratio would apply to the facts in this
case as well. When one of. the co-owner or coparceners made
a statement in his reference application that himself and
his brothers
471
are dissatisfied with the award made by the Collector and
that they are entitled to higher compensation, it would be
clear that he was making a request, though not expressly
stated so but by necessary implication that he was acting on
his behalf and on behalf of his other co-owners or coparcen-
ers and was seeking a reference on behalf of other co-owners
as well. What was acquired was their totality of right,
title and interest in the acquired property and when the
reference was made in respect thereof under section 18 they
are equally entitled to receive compensation pro-rata as per
their shares. The courts below committed manifest error in
refusing to pass an award and payment thereof to the appel-
lants merely on the ground that there was no mention in this
regard in the reference application or two of them sought
reference in respect of two awards and the last one made no
attempt in their behalf. The claimants are entitled to
payment of the enhanced award by the Civil Court pro-rata of
their 1/4 share each with 15 per cent solatium and 4 per
cent interest as awarded by the Civil Court. The appeals are
accordingly allowed with costs of this Court.
R.P. Appeals allowed.
472