Muthuswami Gounder v. A. P. Kaithamalai Gounder — 1976 DIGILAW 246 (MAD)

Judgment :- 1. The defendant in O.S. No. 513 of 1971 is the petitioner herein. The respondent herein who is the plaintiff in O.S. No. 515 of 1971 filed in I.A. No. 1236 of 1974 under O. 26 Rr. 13 and 14 of the C.P.C. to appoint a Commissioner to divide the suit property in accordance with the preliminary decree and to pass a final decree. In the affidavit filed in support of the petition, the Plaintiff-respondent herein wanted appointment of a Commissioner to divide the suit property which consists of a rice mill and an open space or to sell it in auction. The petitioner herein in the counter statement filed for I.A. No. 1236 of 1974 inter alia contended that the suit property is easily divisible in two equal portions or at least approximately equal portions and as such there is no need to sell the suit property in auction. 2. The trial Court took up for determination as to whether the suit property can be conveniently divided into two equal shares by metes and bounds or whether the entire property has to be sold to the highest bidder end the proceeds divided among the sharers. 3. No doubt, the Commissioner has filed a report suggesting division of the property and adjustment as regards the money value thereof. The plaintiff-respondent herein filed objections to the Commissioners report stating that the suit property is a rice mill with machineries like electric motor huller and also drying yard with godown constituting as one unit, that the property is incapable of division, that the report of the commissioner suggesting division of the suit property as though the suit property comprises only of immovable property is unsustainable in law and on facts and that the Commissioner has failed to note that it is impossible to enjoy the northern half without the southern half and vice versa. The respondent herein has further contended that the suit property has a good-will, that such good-will is not capable of estimation in money value and as such the Court may be pleased to order sale of the suit property inclusive of machineries, licences, permits, etc., between the parties to the suit and render justice. 4. The respondent herein has further contended that the suit property has a good-will, that such good-will is not capable of estimation in money value and as such the Court may be pleased to order sale of the suit property inclusive of machineries, licences, permits, etc., between the parties to the suit and render justice. 4. The lower Court, after taking into consideration the Commissioners report and the objections filed by the respondent herein, directed the Commissioner to sell the property among the sharers after giving one months notice to the counsel of both parties and the successful bidder among the sharers shall be permitted to set off his share to the sale price and deposit the balance. 5. Aggrieved with the said order passed by the lower Court, the defendant has preferred this civil revision petition. 6. Mr. S. Gopalaratnam, the learned counsel appearing for the petitioner contended that, as per the Commissioners report the property can be divided by metes and bounds and that the lower Court had no authority in law to direct a sale under the circumstances of the present case. The learned counsel has also filed C.M.P. No. 13787 of 1975 under S. 3 of the Partition Act and S. 151, C.P.C. praying that this Court may be pleased to order a valuation of the plaintiffs share of the suit property described in the preliminary decree and offer to sell the same to the petitioner at such valuation. The main contention pressed by Mr. Gopalaratnam, the learned counsel appearing for the petitioner is that the Courts powers are limited to the provisions of the Partition Act and that the Court cannot have any inherent jurisdiction apart from the said Act. According to the learned counsel, the direction by the Court below to the Commissioner to sell the property among the sharers is beyond the powers conferred upon the Court. As per S. 2, the only power the Court has is to direct the sale of the property and distribute the proceeds thereof to the respective parties as per the provisions of S. 2 of the Act. Instead, the learned counsel appearing for the petitioner states that the Court, without jurisdiction, directed the property to be sold in between the sharers. Instead, the learned counsel appearing for the petitioner states that the Court, without jurisdiction, directed the property to be sold in between the sharers. The learned counsel also read S. 3 of the Partition Act and contended that the petitioner herein is entitled to file such an application to buy at a valuation the share of the party asking for a sale. In such a case, the Court shall fix the valuation of the share in such manner as it may think fit and offer to sell the same to the person applying under S. 3 of the Act at a price so ascertained. Hence the learned counsel submits that since an application under S. 3 of the Partition Act has been filed in C.M.P. No. 13787 of 1975 the Court can pass order as per the provisions contained in S. 3 of the Act. 7. Mr. M.R. Narayanaswami, the learned counsel appointing for the respondent submitted that the property is incapable of division and that the Court has inherent jurisdiction apart from the Partition Act, to pass such order as it deems fit in the interest of justice. 8. It is clear from the order passed by the Court below, which is under O. 26, Rs. 13 and 14 C.P.C. and S. 151 C.P.C. that auction is directed to be held among the sharers. Clearly such direction is outside the purview of the Partition Act. Hence the main question that has to be decided is as to whether the Court has inherent jurisdiction, apart from the Partition Act, to pass order as it thinks just and convenient. 9. Mr. S. Gopalaratnam, the learned counsel appearing for the petitioner cited the decision reported in O.S.A. No. 108 of 1966 dated 21st December 1970 ( V. Rojeswara Rao v. V. Maheswara Rao (died) and another to support his contention. The principal questions that arose for determination in the said appeal are: (1) whether the Court has an inherent power of sale of the property which is not capable of division apart from the provisions of the Partition Act and whether the plaintiff invoked only such inherent power of Court and not the power under S. 2 of the Partition Act, (2) whether the Plaintiff having invoked the jurisdiction of this Court under S. 2 of the Partition Act is entitled to withdraw his suit under O. 23, R. 1. C.P.C. at the same time reserving his right to file a fresh suit on the same cause of action; (3) At what stage should the request under S. 2 be made; and (4) has the defendant, who invoked the jurisdiction of this Court under S. 3 of the Partition Act, an indefensible right to compel the plaintiff to sell the plaintiffs half share to him at a valuation and prevent the Plaintiff from withdrawing the suit? On these questions, the Bench of our High Court definitely held that no general power of sale can be spelt out from the provisions of rite Act. On the other band, the implication is that the Legislation did not intend to confer on the Court a power of sale, apart from the power conferred under the provisions of the Partition Act. In propounding this principle, the Bench of our High Court respectfully agreed with the view expressed in Nitya gopal v. Pran Krishna A.I.R. 1952 Cal, 893 which was later followed in Ghandhar Ghose v. Janaki Nath Ghose A.I.R. 1969 Cal. 59 While doing so, the Bench also dissented from the view expressed by a Bench of the Andhra High Court in Ramaprasada Rao v. Subbaras maiah A.I.R. 1958 And. Pra. 647. 10. The judgment in C.S.A. No. 108 of 1966 was confirmed by the Supreme Court in R. Ramamurthi v. V. Rajeswararao A.I.R. 1973 S.C. 643. The Supreme Court has also made a specific mention to the effect that the Beech of our High Court considered as to whether the Court has inherent power of sale of the property which is not capable of division apart from the provisions of the Partition Act and whether the Plaintiff invoked only such an inherent power and not the power under S. 2 of the aforesaid Act. No doubt the main discussion by the Supreme Court is on the validity of the withdrawal of the suit under O. 23, R. 1 C.P.C. But the Supreme Court, discussing the scheme of Ss. No doubt the main discussion by the Supreme Court is on the validity of the withdrawal of the suit under O. 23, R. 1 C.P.C. But the Supreme Court, discussing the scheme of Ss. 2 and 3, held “At the same time in order to prevent any oppressive exercise of this privilege those shareholders who did not desire a sale were given a right to buy the others out at a valuation to be determined by the Court.” Thus it is clear that the Supreme Court has confirmed the view taken up by the Beech of cur High Court as regards the points stated above. Apart from this decision Mr. S. Gopalaratnam also cited Sampathammal v. Veerammal 86 L.W. 500. 11. Mr. M.R. Narayanaswsmi, the learned counsel appearing for the respondent tried to distinguish the judgment in O.S.A. No. 108 of 1966 and also the decision reported in R. Ramamurthi v. V. Rajeswararao A.I.R. 1973 S.C. 643. The learned counsel submitted that the Respondent herein did not invoke the jurisdiction of the Court under the Partition Act and as such the provisions of the Partition Act will not apply to the facts of this case. The learned counsel also stated that when a Court has no suo motu jurisdiction to apply the Partition Act and when neither party has invoked the procedure laid down under the Partition Act, it cannot be said that the Court is powerless to effect a division of the property in the manner which it considers equitable in the circumstances of that particular case. Mr. M.S. Narayanaswami, the learned counsel further submitted that the Partition Act of 1893 is only to amend the existing law and that does not mean the power of the Court is only within the four corners of the Act. To substantiate his contention, the learned counsel cited Subbamma v. Veerayya 61 M.L.J. 552; A.I.R. 1932 Mad. 15 Ramaswami Naicker v. Nagammal 88 L.W. 199, Vasavambal v. Nataraja Chettiar 1975 T.N.L.J. 441 and Ramaprasada Rao v. Subbaramaioh A.I.R. 1958 And. Pra 647. To substantiate his contention, the learned counsel cited Subbamma v. Veerayya 61 M.L.J. 552; A.I.R. 1932 Mad. 15 Ramaswami Naicker v. Nagammal 88 L.W. 199, Vasavambal v. Nataraja Chettiar 1975 T.N.L.J. 441 and Ramaprasada Rao v. Subbaramaioh A.I.R. 1958 And. Pra 647. The learned counsel also submitted that the main questions that loomed large in O.S.A. 108 of 1966 and R. Ramamurthi v. v. Rajeswara Rao A.I.R. 1973 S.C. 643 are with reference to the withdrawal of the suit under O. 23 R. 1 C.P.C and as such, any finding on the inherent powers of the High Court in respect of a partition suit is only obiter and the same need not be taken as binding upon this court. According to the learned counsel, this Court can independently view the matter and give a decision as to whether the Court has inherent jurisdiction, apart from the Partition Act, to pass orders which it considers equitable in the circumstances of the particular case. 12. Subbamma v. Veerayya 61 M.L.J. 552 A.I.R. 1932 Mad. 15 is a judgment of a single Judge of this Court and as such the same cannot prevail over the Bench decision of the High court rendered in O.S.A. No. 108 of 1966. Ramaswami Naicker v. Nagammal 83 L.W. 199 is prior to the decision tendered in O.S.A. 108 of 1966. Vasavambal v. Nataroja Chettiar 1973 T.N.L.J. 441 rendered by a single Judge of this Court cannot have any effect in the light of the judgment rendered in O.S.A. No. 108 of 1966. The Bench decision of the Andhra Pradesh High Court reported in Ramaprasada Rao v. Subbaramaioh A.I.R. 1958 And. Pra 647 has been dissented by our Bench in O.S.A. No. 108 of 1966. The various other decisions cited by Mr. M.R. Narayanaswami, the learned counsel appearing for the respondent such as Ram Gopal v. Bhikamchand A.I.R. 1964 Raj. 229 Sharbaden Hirachand and others v. Chandrason and others I.L.R. 1966 Guj. 143 and Ram Prasad v. Mr. Kukandi A.I.R. 1929 All. 443 cannot have any binding effect over this Court when especially a Bench of this Court in O.S.A. 108 of 1966 has decided this point. 13. It is clear from the discussion and the decision rendered in O.S.A. No. 108 of 1966 that the Court will have inherent powers, apart from the Partition Act, to pass orders in respect of a partition suit. 13. It is clear from the discussion and the decision rendered in O.S.A. No. 108 of 1966 that the Court will have inherent powers, apart from the Partition Act, to pass orders in respect of a partition suit. I am in complete agreement with the arguments advanced by Mr. S. Gopalaratnam to the effect that O.S.A. No. 108 of 1966 is the authority for the proposition that the Court will not have any inherent powers apart from the Partition Act, in respect of partition suits. Thus it is clear the Court below has exercised jurisdiction not vested in it by law. The lower Court ought to have decided the case as per the provisions of S. 2 of the Partition Act and should not have ordered auction of the suit property in between the sharers. In these circumstances, the order of the Court below is set aside and the matter is remanded to the file of the lower Court for the purpose of disposal afresh in accordance with law. In view of the remand, I have made, the respondent herein is at liberty to move the Court below, when the matter is taken up for bearing, for any relief under S. 3 of the Partition Act. With this observation, C.M.P. No. 13787 of 1973 is dismissed. There will be no order as to costs. This Revision Petition coming on for orders on this day (7th April 1976) upon perusing the petition, the order of the Lower Court and the record in the case and the order dated 19th March 1976 and made herein and upon hearing the arguments of Mr. S. Gopalarathnam Advocate for the Petitioner and of Mr. M.R. Narayanaswamy for Mr. K. Sarvabhauman, Advocates for the Respondent, the Court made the following Order:— 14. I delivered judgment in C.R.P. No. 2684 of 1975 on 19th March 1976 Mr. M.R. Narayanaswami, the learned counsel appearing for the respondent in the above revision petition, wanted this matter to be posted again to delete certain sentences in the judgment. Hence I directed this matter to be posted before me. Mr. M.R. Narayanaswami pointed out that the sentence: “the lower court ought to have decided the case as per the provisions of S. 2 of the Partition Act and should not have ordered auction of the suit property in between the sharers”. Hence I directed this matter to be posted before me. Mr. M.R. Narayanaswami pointed out that the sentence: “the lower court ought to have decided the case as per the provisions of S. 2 of the Partition Act and should not have ordered auction of the suit property in between the sharers”. has to be deleted and instead, it must read: “The lower Court ought to have decided the case as per the provisions of the Partition Act and should have ordered auction of the suit property in between the parties.” Mr. S. Gopalaratnam, the learned counsel who appeared for the petitioner in the above revision petition, stated that the request made by the Respondent herein before the Court below is only under S. 2 of the Partition Act and as such, the order dictated can stand as it is. 15. As far as the present case is concerned, I bestowed my attention only as to whether the Court has inherent power apart from the Partition Act to pass orders. I decided, following the Bench decision of our High Court, that the Court has no inherent powers, apart from the Partition Act, to pass orders in partition suits. Hence to state that the lower Court has to decide the request made by the Respondent herein under S. 2 of the Partition Act, will, in effect, preclude the respondent from stating that his request is not under S. 2. When I mention this, I make it clear that it is open to the petitioner herein to press his view to the effect that the request made by the Respondent herein is only under S. 2. With these observations, I modify the sentence stated above so as to read in the judgment rendered by me on 19th March 1976 in C.R.P. No. 2664 of 1975 as follows: “The lower Court ought to have decided the case as per the provisions of the Partition Act and should not have ordered auction of the suit property in between the sharers.” When I make this alteration in the judgment passed, I also make It clear that it is open to the Petitioner to file a petition under S. 3 and agitate the matter before the Court below which will decide such petition on merits after giving opportunity for both the parties to place their respective contentions.