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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,

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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]

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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

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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

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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