Sainaba v. Abdurahiman Koya — 1982 DIGILAW 33 (KER)

JUDGMENT 1. The Judgment of the court was delivered by Balagangadharan Nair, J. - Defendants 1 to 4 are the appellants in A.S. No. 77 and defendant 5 represented by his power holder is the appellant in A.S. No. 95 and the petitioner in C.R.P. No. 739. These arise out of a suit for partition instituted by the sole plaintiff against his 3 sisters (defendants 1 to 3) and two brothers (defendants 4 and 5) for partition of a residential house and compound. By the preliminary decree dated 17th September, 1979 the court below directed the property to be divided into 9 equal shares allotting 2 shares to the plaintiff. On an application I.A. 731 filed by the plaintiff for passing the final decree the Court appointed a Commissioner who submitted his report on 25th June, 1980 stating that as it was not reasonable or convenient to divide the property, a sale and distribution of the proceeds would be more beneficial to all and requesting the Court's direction to that effect under S.2 of the Partition Act ("the Act"). In the objection filed by them on 4th July, 1980 defendant 1 to 4 referred to the opinion given by the Commissioner in the report and suggested that the court might be pleased to order sale of the property among the sharers and distribute the proceeds according to the preliminary decree. They added that the sale should be confined to the sharers as it is their residential house and defendants 2, 4 and 5 have no other house to reside. To this the plaintiff respondent filed a counter stating that no sale was necessary and that the Commissioner might be directed to report on the value of the shares of the other parties under S.3(1) of the Act. The same day he made an application I.A. 2266 under S.3(1) of the Act in which, he said that as persons together holding more than 50 per cent of the shares have requested for a sale of the property under the Act, he was making the application as a smaller sharer holding only 2/9 shares for leave to buy at a valuation the shares of the other parties under S.3(1). He prayed that the value of the shares of the other parties might be fixed and they might be sold to him at an amount fixed by the court. He prayed that the value of the shares of the other parties might be fixed and they might be sold to him at an amount fixed by the court. To this defendants 1 to 4 filed an objection contending that the application was not maintainable as they had made no motion under S.2, although they had stated in the counter to the report that the property was not susceptible of partition. 2. The 5th defendant is in Saudi Arabia. On 24th October 1980 he had been set ex parte on the final decree application I.A. No. 731 of 1980 on the ground that he had not appeared. On 20th November, 1980 his father inlaw made two applications I.A. 4227 and 4228, the latter to set aside the order declaring him ex parte and the former to allow him to prosecute the case. The applications were supported by the affidavits of the power of Attorney-holder. Along with I.A. 4227 of 1980 he had also produced a power of attorney executed by the 5th defendant and purporting to be attested by the Second Secretary of the Indian Embassy at Jeddah. On 20th November, 1980 the court set aside the order declaring the 5th defendant ex parte, thus allowing I.A. 4228. The plaintiff objected to I.A. No. 4227 on the ground that the power of attorney produced in support of the application was not valid or genuine. 3. On 13th January, 1981 the court allowed I. A. No. 2266 by directing that the Commissioner would value the property and that the shares of defendants 1 to 5 would be sold to the plaintiff at a price fixed by the court. The same day the court dismissed I.A. No. 4227 holding the power of attorney to be invalid. From the former order defendants 1 to 5 have filed the two appeals and from the latter order defendant 5 has filed the revision. 4. The short question in the two appeals is whether the court below was right in directing a sale of the property to the plaintiff under S.3 of the Act. In order to determine the question, it is necessary to read the interconnected provisions, S.2 and 3 of the Act. "2. 4. The short question in the two appeals is whether the court below was right in directing a sale of the property to the plaintiff under S.3 of the Act. In order to determine the question, it is necessary to read the interconnected provisions, S.2 and 3 of the Act. "2. Whenever in any suit for partition in which, if instituted prior to the commencement of this Act, a decree for partition might have been made, it appears to the court that, by reason of the nature of the property to which the suit relates, or of the number of the shareholders therein, or of any other special circumstance, a division of the property cannot reasonably or conveniently be made, and that a sale of the property and distribution of the proceeds would be more beneficial for all the shareholders, the court may, if it thinks fit, on the request of any of such shareholders interested individually or collectively to the extent one moiety or upwards, direct a sale of the property and a distribution of the proceeds". 3. (1) 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 as it may think fit and offer to sell the same to such shareholder at the price so ascertained, and may give all necessary and proper directions in that behalf. (2) * * * * " Analysing the sections, the Supreme Court in Badri Naraian v. Nil Ratan ( AIR 1978 SC 845 ) observed: "S.2 and 3 of the Act are interlinked. (2) * * * * " Analysing the sections, the Supreme Court in Badri Naraian v. Nil Ratan ( AIR 1978 SC 845 ) observed: "S.2 and 3 of the Act are interlinked. A perusal of S.2 and 3 will show that the court can exercise the power under S.3 if (i) there is a request of any such shareholders interested individually or collectively to the extent of one moiety or upwards, for sale of the property and its distribution; and (ii) it reaches an opinion that by reason of the nature of the property or the number of shareholders or some special circumstances, a division of the property cannot reasonably or conveniently be made, and that a sale of the property and distribution of the proceeds would be more beneficial for all the shareholders". After pointing out that: "Even when both these conditions are satisfied, the court has a discretion to direct or not to direct a sale of the property and distribution of the proceeds. This is clear from the words 'may' used in the section". The Supreme Court held: "It will be seen from the above analysis that the request contemplated in No. (i) is a sine qua non for directing a sale because such a request necessarily signifies his willingness to have his share converted into money, so that the co-sharers may, by means of the procedure provided in S.3 buy them out. The request for sale envisaged by S.2 must be the one for public sale. If no such request has been made to the court, S.3 cannot be brought into operation". 5. The court below, as also the plaintiff, has proceeded on the basis that defendants 1 to 4 had made an application for public sale under S.2. This is an erroneous assumption as there was no such action on their part. What they had done was only to make certain objections to the suggestion made by the Commissioner in his report. It was wrong to I have construed this objection into an application under S.2 so as to enable the plaintiff to invoke S.3. This is all the more regrettable as defendants 1 to 4 made it clear in their objection to I. A. No. 2266 of 1980 that they had not made any application under S.2. It was wrong to I have construed this objection into an application under S.2 so as to enable the plaintiff to invoke S.3. This is all the more regrettable as defendants 1 to 4 made it clear in their objection to I. A. No. 2266 of 1980 that they had not made any application under S.2. The order of the court below has to be vacated as the basic assumption made by it is wrong and as there is no occasion for the exercise of power under S.3. 6. As held by the Supreme Court in the above case approving the decision in Ramaprasad Rao v. Subbarammaiah (AIR 1978 IA 647) given by Subba Rao, C. J. sitting with Ansari, J. the power of the court to partition property by any equitable method is not affected by the Act in cases not covered by S.2 and 3. In Ramaprasad Rao's case (AIR 1978 IA 647) the learned Chief Justice discussed the question at length and held that the Act does not entrench upon the power of the court to effectuate, in the exercise of its discretion, an equitable partition of the properties among the 68 owners and that except to the extent provided by the Act, "the power of the court to partition the properties equitably by any of the methods detailed above or similar other is not, in any way, affected by the provisions of the Act." 7. It was not in its effort to devise an equitable mode of division, finding that S.2 and 3 have no application, that the court has passed its order, but in exercise of the power under S.3, which it mistakenly assumed was attracted. The order being unsustainable it becomes necessary to find what other mode would be just and equitable, it being admitted that the suit property does not admit of easy or convenient division. 8. The parties are closely related and defendants 1 to 3 are women who are residing in the suit building. Among themselves defendants 1 to 4 are the largest shareholders, In these circumstances, we feel that in place of the direction made by the court below it will be equitable to order that the property should be auctioned among the sharers. 9. The order on I.A. No. 2266 of 1981 is set aside. 10. Among themselves defendants 1 to 4 are the largest shareholders, In these circumstances, we feel that in place of the direction made by the court below it will be equitable to order that the property should be auctioned among the sharers. 9. The order on I.A. No. 2266 of 1981 is set aside. 10. Turning to the revision, it concerns the validity of the power of attorney produced by the 5th defendant's agent. The power of attorney purports to have been attested by the Second Secretary of the Indian Embassy, Jeddah. The court below has held that under S.85, Evidence Act which deals with presumption as to power of attorney, the power of attorney must purport to have been executed before or authenticated by among others the Indian Consul or Vice Consul or representative of the Central Government. The court also noted that the definition of "consular officer" in The Citizens (Registration at Indian Consulates) Rules, 1956 includes only a "Secretary" but not a "Second Secretary" in any Indian diplomatic mission abroad. Now the definition makes no differentiation of Secretaries and as the plaintiff has not established that the "Second Secretary" is no "Secretary" we are inclined to hold that the term "Secretary" in the definition includes every Secretary irrespective of his gradation or ranking. 11. Further the plaintiff's objection to the validity of the power of attorney should not have been upheld at this stage. The 5th defendant's agent had made two applications, I. A. Nos. 4227 and 4228 of 1980, both on the strength of the power of attorney. On November 20, 1980 the court allowed I. A. No. 4228 of 1980 and thus set aside the earlier order declaring the 5th defendant ex parte. This latter order of November 20, 1980 was passed after notice to the parties including the plaintiff and it has become final. Having tailed to object to the validity of the power of attorney in the earlier proceeding it was not open to the plaintiff to raise the objection at a later stage of the same application. The order dismissing I.A. No. 4227 of 1980 is set aside. The appeals and revision are allowed. The court below will sell the suit property by auction limiting the sale to the sharers and proceed according to law. Parties will bear their costs.