Sarayakaran alias Muniyan v. Perumal — 1973 DIGILAW 151 (MAD)

Ganesan, J.- The first defendant has preferred this Civil Revision Petition on being aggrieved that the learned Additional District Munsif of Tirupattur had dismissed his application I. A. No. 1199 of 1970 in I.A. No. 1189 of 1967 in O.S. No. 586 of 1964 filed under section 3 of the Partition Act for fixing the value of l/3rd share of the respondent plaintiff Perumal in respect of item 3 of the suit properties and for sale of such share in his favour. 2. The respondent has filed I.A. No. 1622 of 1968 under section 2 of the Partition Act for sale of the property, and the application was allowed by the Court on 20th August, 1969, and sale papers had also been filed. The petitioner subsequently filed I. A. No. 1199, out of which the Civil Revision Petitior arises, under section 3 of the Partition Act praying that the 1/3rd share of the respondent-plaintiff may be sold in his favour and that the value of the said share may be fixed. Following the decision of a Division Bench of this Court in Angamuthu Mudaliar v. Ratna Mudaliar1, the learned Mursif dismissed the petitioner’s application, holding that an application under section 3 of the Partition Act would not lie after an order for sale under section 2 of the Act had been passed by the Court. The learned Munsif has stated that he is bound by the Bench decision of this Court and has consequently declined to follow the contrary view taken by the Calcutta High Court in Nitish Chandra Ghosh v. Promode Kumar Ghosh2. He pointed out that no decision of this Court subsequert to Angamuthu Muaaliar’s case 1 , had been cited before him. This is evidently wrong, as the leaned Counsel for the petitioner rightly points out for, in Jayarama v. Anmmalai3, Kailasam, J., has declined to be bound by the Bench decision in Angamuthu Mudaliar’s Case 1and has preferred Nitish Chandra Ghosh v. Promode Kumar Ghosh2, cited above. Kailasam, J., has taken the view that the observations made by the Division Bench of this Court in Angamuthu Mudaliar’s Case1were obiter and are also not warranted by the provisions of sections 2 and 3 of the Partition Act (IV of 1893). 3. Kailasam, J., has taken the view that the observations made by the Division Bench of this Court in Angamuthu Mudaliar’s Case1were obiter and are also not warranted by the provisions of sections 2 and 3 of the Partition Act (IV of 1893). 3. The learned Counsel for the petitioner contends that the decision of Kailasam, J., is binding on me, as it is a decision of a Judge of co-ordinate jurisdiction of this Court and relies for that proposition upon the judgment of the Supreme Court in Dhanki Mahajan v. Rana Chandubha4, wherein the Supreme Court has ruled that a single Judge of a High Court is ordinarily bound to accept as correct judgments of Courts of co-ordinate jurisdiction or Division Benches and Full Benches of his Court. 4. I have gone through the judgment of the Division Bench of this Court in Angamuthu Mudaliar’s case5, cited above ; and I regret to say that I am unable to agree with Kailasam, J., that the observations made in that judgment are obiter in nature and will not consequently bind him. I am also satisfied that these observations contain a correct statement of the law and that the construction placed by the Calcutta decision cited above and by Kailasam, J., is not warranted by the provisions of sections 2 and 3 of the Partition Act. 5. The material facts in Angamuthu Mudaliar’s case5, were these. In a partition suit, a consent decree was passed embodying a direction by consent of parties that the Official Referee should divide the property by metes and bounds and that, if it could not be so divided, he should sell the property under the Partition Act (IV of I893). Under the decree, the plaintiff was entitled to a half share. The Official Referee found that the property was not capable of division by metes and bounds and decided to sell the property. The plaintiff thereupon made an application to the Court under section 3 of the Partition Act for leave to purchase the shares, of the defendants and requested the Court to fix the value of the said shares. The application was dismissed; but a Division Bench of this Court set aside that order and remanded the case back to the Official Referee for disposal according to law. The application was dismissed; but a Division Bench of this Court set aside that order and remanded the case back to the Official Referee for disposal according to law. Subsequently the defendants also applied under section 3 of the Partition Act, offering to purchase the house at the valuation fixed by the Official Referee ; and in the alternative he prayed that the house should be sold to the shareholders who offered the highest price and that the sale should be held by the Official Referee as between the shareholders. The application was allowed; but the learned Judges who constituted the Bench allowed the appeal, dismissed the application and made certain observations of which portions relevant to the present enquiry are set out below: " It is clear to our minds that section 3 of the Partitior Act cannot be applied after the Court had already directed a sale and in this case the sale was with the consent of all parties. The sale which was directed was a sale under section 2 of the Partition Act. Section 3 begins by saying "If, in any case where the Court is requested under the last foregoing section to direct a sale, any other shareholder applies for leave to buy at a valuation the share or the shares of the party asking for a sale, the Court shall order a valuation." 6. It seems to us therefore that the proper time to apply under section 3 is before a Court makes an order under section 2, and after the request had been made by one of the parties that the property should be sold. Unless we construe the two sections in this manner there will be much difficulty in applying them. Once a final order is made as between the parties that the property should be sold under section 2, and that means a sale open to the public when anybody might bid for the property unless it is expressly restricted to be between the parties only, no order can be made under section 3, as it is too late then to apply under that section. * * * * In this case section 3 does not apply. The parties have already agreed that the properties should be sold under section 2 and that consent has not been set aside by any order and is still in focre. * * * * In this case section 3 does not apply. The parties have already agreed that the properties should be sold under section 2 and that consent has not been set aside by any order and is still in focre. It appears to me clear that a construction of the provisions of sections 2 and 3 were necessary for an effective disposal of the dispute between the parties by the Division Bench. It is true that the learned Judges have observed that the parties have already agreed, that the properties should be sold under section 2 and that consent has not been set aside by any order and was still in force ; but the learned Judges have also prefaced those observations by the remark that, in that case section 3 did not apply. The implication of this remark is clear and it is that, in the opinion of the learned Judges, if section 3 applied to the case, the fact that the parties have already agreed that the properties should be sold under section 2 would not have beer a bar to the applications made by the plaintiff and the defendants in the case under section 3 of the Act. As set out earlier, the learned Judges have held that, once a final order is made as between the parties that the property should be sold under section 2 and that means a sale open to the public when anybody might bid for the property unless it is expressly restricted to be between the parties only, no order can be made under section 3, as it is too late then to apply under that section. The learned Judges have further held that the consent order between, the parties which is to the effect that the property should be sold under the Partition Act unless the Official Referee found it convenient to divide it by metes and bounds must be deemed to be one under section 2 of the Partition Act and that the subsequent applications by the plaintiff and the defendants under section 3 could not be entertained because the consent order must be a final order under section 2 and that it was too late to come in with an application under section 3. In my view, construction of sections 2 and 3 of the Act by the Division Bench was necessary for an effective disposal of the question faced by the learned Judges whether applications under section 3 filed subsequent to the consent order that the property should be sold by the Official Referee would lie. It appears to me that the learned Judges have not dismissed the applications by the plaintiff and the defendants under section 3 of the Act on the ground that they were bound by the consent order that the sale should take place. It was not disputed in that case that the Partition Act applied, and it does not appear from the judgment that any argument was advanced by any of the parties to the effect that as the consent order was binding between the parties no relief under section 3 was therefore available. Indeed it is obvious that no such argument could have been advanced, as both the plaintiff and the defendants have admittedly filed applications under section 3 of the Act. 7. In my view, the real basis of the decision by the learned Judges in that case was this. The order for a public sale under section 2 is final and, consequently, so long as that order stands, no subsequent applications under section 3 by any party to the decree praying for a sale of the shares of the other parties in his favour is entertainable. The consent order in that case for a sale must be deemed to be one under section 2 of the Act and consequently applications by the plaintiff and defendants under section 3 of the Act (subsequent to the consent order) for sale of the shares of the other parties in their favour are not legally maintainable. The observations of the learned Judges that once a final order is made as between the parties that the property should be sold under section 2 and that means a sale open to the public, no order can be made under section 3, as it is too late then to apply under that section cannot, therefore in my view, be viewed as obiter but must be taken to be the basis for the decision and binding on Kailasam, J. 8. In the second place, it also appears to me that the observations made by the learned Judges are based upon a correct interpretation of the provisions of sections 2 and 3 of the Act. Section 3 (1) of the Act is to the following effect. “If, in any case in which the Court is requested under the last foregoing section to direct a sale, any other shareholder applies for leave to buy at a valuation the share or shares of the party or parties asking for a sale, the Court shall order a valuation of the share or shares in such manner........”In my view the language used implies that applications under section 3 can be entertained only so long as the application under section 2 for sale of the property is still pending and has not been finally ordered. If the application under section 2 had been allowed and a public sale had been ordered, it would be anomalous to allow a subsequent application under section 3 for a sale of the shares of some parties to the applicant, so long as the order for public sale stands and has not been set aside. An order for the sale of the shares of one party to another cannot subsist and stand side by side with an order for a public sale. I am therefore unable to subscribe to the view taken by the Calcutta High Court and by Kailasam, J., that an application under section 3 of the Act can be entertained so long as a sale had not been held in pursuance of the order under section 2 of the Act. 9. In view of the fact that I am unable to follow the decision of Kailasam, J., on the binding nature of the decision of this Court in Angamuthu Mudaliar v. Ratna Mudaliar1 , as well as on the effect of the provisions of sections 2 and 3 of the Indian Partition Act, it is but proper that both questions should be referred to a Bench for adjudication. Accordingly, the following two questions are formulated for a decision by a Bench: “ (1) Whether the observations of the Division Bench in Angamuthu Mudaliar v. Ratna Mudaliar1, that the proper time to apply under section 3 of the Partition Act is before a Court makes an order under section 2 of that Act and that once a final order is made as between the parties that the property should be sold under section 2 and that means a sale open to the public when anybody might bid for the property unless it is expressly restricted to be between the parties only, no order can be made under section 3, as it is too late then to apply under that section, are obiter, and, in case they are not obiter, (2) Whether the said observations do not contain a correct statement of the law.” 10. The papers will be placed before the Hon’ble the Chief Justice for being referred to a Division Bench or a Full Bench. The Judgment of the Court was delivered by Veeraswami, C. J.- The matter comes before us on a reference by Ganesan, J. The learned Judge thought that there was a conflict of decisions and therefore it should be resolved. But on the view we are inclined to take there is no conflict of decisions. The question is at what stage an application under section 3 (1) of the Partition Act of 1893, should be made: is it before an order has been made under section 2, or can application under section 3 (1) be made even thereafter, but before the sale is actually held. That is how the question has been propounded by the referring Judge. 12. On a plain reading of sections 2 and 3, it seems to us that the right to apply under section 3 (1) arises the moment a request has been made under section 2. If a direction for sale of the property has been given under section 2, it does not follow that an application under section 3 (1) cannot be made thereafter. All that is necessary is that in order that an application under section 3 (1) may be considered, the petitioner should apply to have the order under section 2 set aside because, so long as that order stands, the application under section 3 (1) does not call for consideration. All that is necessary is that in order that an application under section 3 (1) may be considered, the petitioner should apply to have the order under section 2 set aside because, so long as that order stands, the application under section 3 (1) does not call for consideration. It may be even visualised that a sale has taken place under section 2. Even in such a case, as it seems to us, there is no bar to be inferred from the two sections to an application being made under section 3 (1), but only it cannot be considered unless the order for sale made under section 2 is set aside. That we think is the correct approach. We do not think that the question was considered in Angamuthu Mudaliar v. Ratna Mudaliar1. As to Jayarama v. Annamalai2, we agree with Kailasam, J., that a right to apply under section 3 (1) accrues the moment a request under section 2 has been made to the Court. Beyond that stage, an application may always be permissible, but only, as we said, any order made under section 2, or sale held pursuant to that order will have to get out of the way first before an application under section 3 (1) can be taken up for consideration. 13. On that view of the matter, we set aside, the order of the Court of the District Munsif and remit the application under section 3 (1) to the Court for disposal, along with any aplication which the petitioner may have filed for setting aside the order for sale under section 2. If no such application is made to set aside the order under section 2, the application under section 3 (1) will naturally have to be dismissed. 14. The petition is accordingly ordered. No costs.