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2001 DIGILAW 744 (KER)

K. N. Krishnan v. K. N. Narayanan

2001-12-18

A.LEKSHMIKUTTY

body2001
Judgment :- K. Lekshmikutty, J. Challenging the judgment and decree in A.S. No.8 of 1995 on the file of the Subordinate Judge's Court, Koyilandy, this appeal is preferred by the first defendant. The appellant was the first defendant in O.S. No.130 of 1987 on the file of the Munsiff's Court, Koyilandy. Against the judgment and decree in the said suit, the appellant filed A.S. No.8 of 1995 before the Sub Court, Koyilandy. The suit was filed by the first respondent herein for partition of the plaint schedule property. A preliminary decree was passed in the suit directing division of the property into 56 shares and by allotting 9/56 shares each in favour of the plaintiff and defendants 1 to 5. Defendants 6 and 7 were allotted 2/56 shares each. Thereupon the first respondent herein filed I.A. No. 420 of 1989 for the passing of a final decree in terms of the preliminary decree. An Advocate Commissioner was deputed for division of the property. He submitted a plan and report on 24.4.1989 diving the property into seven plots and allotting them to each of the parties. The Commissioner allotted Plot "G" in favour of the appellant herein. The plaintiff and defendants 2 to 7 filed I.A.. No. 1737 of 1989 for setting aside the commissioner appropiates and I.A. 1745 of 1989 requesting for the sale of the property in public auction as contemplated under Section 2 of the Partition Act. The appellant herein filed I.A. No. 1458 of 1989 to remit the commissioner's plan and report directing that it should be specifically indicated whether the properties are capable of being divided by metes and bounds. As the Commissioner's report was remitted the other applications filed by the respondents were dismissed as premature. The Commissioner thereupon submitted a second report which was again remitted by the court below suo motou. Thereafter, the Commissioner filed a report on 10.2.1994 stating that it would be difficult to have convenient enjoyment of each of the plots if the property is divided as shown in the first report. 2. On the basis of the report of the Commissioner, the plaintiffs and defendants 2 to 7 submitted that the property should be put to sale by public auction. 2. On the basis of the report of the Commissioner, the plaintiffs and defendants 2 to 7 submitted that the property should be put to sale by public auction. But the appellant herein contended that he being the resident in the house situated in the property should be allowed to purchase the shares of other practices on payment of the value to be fixed by the court. The trial court after considering rival contentions passed an order In I.A. No.420 of 1989 on 13.6.1994 directing that the property shall be put to sale by public auction and by suspending the final decree till such time. The above order was challenged by the appellant herein before this court by filing C.R.P. No. 1378 of 1994. The Civil Revision Petition was later removed from the file holding that the order under challenge is an appelable order as it has got the effect of a preliminary decree. Thereupon A.S. No.8 of 1995 was filed before the Subordinate Judge's Court, Koyilandy against the order dated 13.6.1994 in I.A. No.420 of 1989. The appeal was demissd affirming the view taken by the trial court. Against the said judgment in A.S. 8 of 1995 and the order of the trial court in I.A. No. 420 of 1989 in O.S. No. 130 of 1987 this Second Appeal is preferred by the first defendant. 3. The only question to be considered is whether the property can be put to public auction or whether the property can be allowed to be purchased by the appellant/first defendant as per the value fixed by the court. A preliminary decree was been passed for division of the property into 56 shares and by allotting 9/56 shares each in favour of the plaintiff and defendants 1 to 5 and 2/56 shares each to defendants 6 to 7. On the basis of the preliminary decree, I. A. No.420 of 1989 was filed by the plaintiff for the passing of the final decree. For division of the property, a commissioner was deputed and the commissioner has filed the report and plan dividing the property into 7 plots and allotting respective shares to the parties. The contention of the first defendant is that since he being the resident of the building he may be allowed to purchse the shares of the other sharers. For division of the property, a commissioner was deputed and the commissioner has filed the report and plan dividing the property into 7 plots and allotting respective shares to the parties. The contention of the first defendant is that since he being the resident of the building he may be allowed to purchse the shares of the other sharers. Defendants 2 to 7 filed I.A. No. 1737 of 1989 for setting aside the commissioner's report and I.A. No. 1745 of 1989 for sale of the property in public auction. The trial court dismissed both the petitions as premature and remitted the commissioner's report and plan to the commissioner. The Commissioner, thereupon, submitted a second report which was again remitted by the court below suo motu. It is seen that on 10.2.1994, the commissioner filed a report stating that it would be difficult to have convenient enjoyment if the property is divided as shown in the first report. Then the next question to be considered is whether the appellant herein can be permitted to purchase the shares of other shares for the value decided by the court. The contesting repondent resist the same. According to them, the property is to be put in public auction and if the appellant herein is desirous, he can also participate in the auction Section 2 of Partition Act, 1893 reads as follows: "2. Power of court to order sale instead of division in partition suits. The contesting repondent resist the same. According to them, the property is to be put in public auction and if the appellant herein is desirous, he can also participate in the auction Section 2 of Partition Act, 1893 reads as follows: "2. Power of court to order sale instead of division in partition suits. 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 sharefolders interested individually or collectively to the extent of one moiety or upwards, direct a sale of the property and distribution of the proceeds." And Section 3 of the said Act reads as follows:- "3 Procedure when sharer undertakes to buy- (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) If two or more shareholders severally apply for leave to buy as provided in Sub-section (1), the court shall order a sale of the share of shares to the shareholder who offers to pay the highest price above the valuation made by the court. (3) If no such shareholder is willing to buy such share or shares at the price so ascertained, the applicant or applicants shall be liable to pay all costs of or incident to the application or applications". 4. It is submitted by the learned counsel for the appellant that the respondents have already requested the court to put the property in public auction. 4. It is submitted by the learned counsel for the appellant that the respondents have already requested the court to put the property in public auction. Since the appellant is ready to purchase the share of the other sharers, he may be permitted to purchase the same. It is further submitted by him that he is residing in the building and he has no other property or building for his residence. This is disputed by the contesting respondents. According to them the wife of the appellant has got several properties and residential house. The application filed by them before the lower court was dismissed and hence there was no consent under Section 2 of the Partition Act. From the report of the Commissioner as well as from the nature of the property, it can be seen that division of shares to the respective parties must be inconvenient. So, the only course open to the court is to put the property in sale and divide the proceeds in pursuance of the preliminary decree. It is true that the petition filed by the contesting respondents was dismissed as premature. But it is to be noted that if the property is partitioned by metes and bounds, convenient enjoyment of the parties is not possible. So, the property is to be put to sale and proceeds is to be divided among the sharers. The appellant has requested for the purchase of the shares of the other sharers. As per Section 2 of the Partition Act, 1893, a sale of the properties involved in a partition suit and distribution of the sale proceeds among the sharers can be made only on the request of a shareholder individually interested or of shareholders collectively interested in one moiety or upwards of the properties involved. But, it cannot be said that the court has no power to direct the sale of the property involved in a suit for partiion and distribution of the sale proceeds among the sharers even if the above condition insisted by Section 2 of the Partition Act is not satisfied. What the court has to see is that there is a just partion. In all cases where the property, or properties, is incapble of partition by metes and bounds, the court is not without powers to resort to a feasible method just and equitable in the circumstances of the cases. What the court has to see is that there is a just partion. In all cases where the property, or properties, is incapble of partition by metes and bounds, the court is not without powers to resort to a feasible method just and equitable in the circumstances of the cases. The Partition Act does not taken away the power of the court. From the contention of the parties, it can be seen that they are amenable for the sale of the properties and division of the proceeds in public auction. In the instant case, actually the contesting respondents have filed petition to put the property in auction. In the instant case, actually the constesting respondents have filed pettion to put the property in auction. It is true that the petition was dismissed as premature. But the intention of the parties has been expressed by them before the court. So the property can be sold and proceeds can be divided among the sharers. If a petition is filed under Section 2 for public auction by one or more sharers, any other sharer may file a petition under Section 3 offering to purchase the shares of the others at a price fixed by the court. Such a petition can be filed before a third party comes into the picture. The purpose behind Section 3 is to prevent the property falling into the hands of third parties. The evidence on record shows that the appellant is resideing in the building. The parties are close relatives. Considering the circumstances, I feel that it is only just and proper to allow the appellant to purchse the shares of the other sharers for the value assessed by the court. The appellant shall apply for the issue of a commission for assessing the value of the property and the sale proceeds can be divided among the sharers. The court below shall appoint a commissioner to assess the value of the property with the help of an expert. The appeal is disposed of accordingly.