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2015 DIGILAW 1122 (KAR)

G. Sathyavelu v. G. Pramila Devi

2015-09-23

A.V.CHANDRASHEKARA

body2015
ORDER A.V.CHANDRASHEKARA 1. Both these petitions filed under Article 227 of the Constitution of India are directed against the order dated 8.12.2014 and 21.2.2015 passed on I.A.4 in FDP.131/12 and pending on the file of the XXXVIII Additional City Civil Judge, Bengaluru City. The petitioner herein is the 1st respondent in FDP.131/12 arising out of the judgment and preliminary decree in an original suit in O.S.6933/08. Respondents 1 to 4 herein are petitioners 1 to 4 in the said proceedings and respondents 5 and 6 herein are respondents 4 and 3 respectively in FDP.131/12. Parties will be referred to as petitioners and respondents as per their ranking in the final decree proceedings. 2. The facts leading to the filing of these petitions are as follows: a) G.Pramila, G.Prabhakar, G.Pughalvani and G.Vinodini were the plaintiffs in O.S.6933/08. They chose to file the suit for the relief of partition and separate possession against this petitionerG.Sathyavelu and 6 others in respect of a house measuring 25’ x 40’ situated in Bengaluru city. The said suit came to be decreed on 24.3.2012 granting 1/8th share to each of the plaintiffs. After obtaining preliminary decree, the plaintiffs therein chose to file final decree proceedings in terms of Order XX Rule 18, C.P.C. for demarcation of their share by metes and bounds. b) During the pendency of the suit, a commissioner was appointed to ascertain the feasibility of partition of the suit property in terms of the decree passed in O.S.6933/08. Mr.Dyappa, an architect, was appointed as commissioner by the court. He has submitted a report stating that it is not feasible to divide the property into 8 parts and that putting the property to sale in open market is the only avenue. As per the report dated 21.4.2014 submitted to the court, the guidance value of the property was Rs.5,500/per sq.ft. as per the notification issued by the Department of Stamps and Registration. c) During the pendency of the petition, one of the parties died and therefore, 1/8th share is modified as 1/7th share. An application came to be filed vide I.A.3 by the petitioners therein requesting the court to order for sale of the schedule property through public auction and to distribute the sale proceeds as per their entitlement. c) During the pendency of the petition, one of the parties died and therefore, 1/8th share is modified as 1/7th share. An application came to be filed vide I.A.3 by the petitioners therein requesting the court to order for sale of the schedule property through public auction and to distribute the sale proceeds as per their entitlement. The said application was filed in terms of Section 2 of the Partition Act, 1893, read with Section 151, C.P.C. After hearing the learned advocates for the parties, the following order came to be passed by the learned judge, appointing Mr.Dyappa, civil architect as the court commissioner to execute the sale warrant: I.A.no.3 filed under Section 2 of the Partition Act r/w Sec.151 of C.P.C.is allowed. No cost. Advocate for petitioner prays to appoint earlier court commissioner to execute the warrant and to sell the schedule property in public auction. Hence Sri Dyavappa, Civil Architect is appointed as court commissioner. Commissioner Fee is tentatively fixed as Rs.10,000/. To deposit Commissioner’s fee and to pay by 23.8.2014. d) Later on an application was filed by this petitioner (1st respondent in FDP proceedings) in terms of Section 3 of the Partition Act read with Section 151, C.P.C. to permit him to purchase the shares of other coowners in respect of the schedule property and to ascertain the value of each share and offer to sell the same to him, in the interest of justice. The said application was objected to by the petitioners therein by filing detailed written statement. Ultimately the learned judge allowed the said application filed vide I.A.4 under Section 3 of the Partition Act in part, permitting this petitioner and the petitioners in FDP proceedings to participate in the public auction for sale of the property. e) After this order was passed on 8.12.2014, an application was filed by this petitioner requesting the court to review the order passed on I.A.4 dated 8.12.2014. The said application is supported by the affidavit sworn to by the petitioner. According to him, there cannot be any public sale as per Section 3 of the Partition Act and there can be a sale only amongst sharers and that would be to protect the dignity of the family sentiments. The said application is supported by the affidavit sworn to by the petitioner. According to him, there cannot be any public sale as per Section 3 of the Partition Act and there can be a sale only amongst sharers and that would be to protect the dignity of the family sentiments. According to him, several authorities cited by him were not considered by the court and no reserve price was fixed before ordering sale and therefore, the order dated 8.12.2014 and the earlier order dated 14.8.2014 are opposed to the mandatory provisions of the Partition Act, 1893, and therefore they need to be reviewed. f) The said application was objected to by respondents 1 to 4 herein and ultimately on 21.2.2015, the learned judge has chosen to dismiss the said application. It is these orders which are called in question in these petitions on various grounds as set out in the memorandum of writ petition. 3. After hearing the learned counsel on both sides and perusing the entire records, the following points arise for consideration of this court: 1) Whether the order dated 8.12.2014 passed by the XXXVIII Additional City Civil Judge, Bengaluru, under Section 2 of the Partition Act without fixing reserve price is maintainable in law? 2) Whether any interference is called for, and if so, to what extent? R E A S O N S 4. Point no.(1): The language of Section 3 of the Partition Act does not make it obligatory on the court to give a positive finding that the property is incapable of division by metes and bounds. It should only appear that it is not so capable of division. In the present case, the learned judge has specifically held that the property is not capable of being partitioned as per the shares and that it would not be feasible. The said finding is given on the basis of the report of a competent person, i.e. civil architect appointed by the court as commissioner. Therefore, the learned judge is justified in bringing the property for auction. 5. I.A.3 was filed in terms of Section 2 of the Partition Act, 1893. Whether the trial court is justified in bringing the family property for public auction, is the question. Therefore, the learned judge is justified in bringing the property for auction. 5. I.A.3 was filed in terms of Section 2 of the Partition Act, 1893. Whether the trial court is justified in bringing the family property for public auction, is the question. What is held in the case of R.RAMAMURTHY IYER .v. RAJESWARA RAO reported in [1972] 2 SCC 721 is that ‘if the plaintiff has invoked the power of the court to order sale instead of division in a partition suit under Section 2 of the Partition Act, and the other shareholder under takes to buy at a valuation the share of the party asking for sale, the court has no option or choice or discretion left to it and it is bound to order a valuation of the share in question and offer to sell the same to the shareholder undertaking or applying to buy it at valuation.’ 6. The purpose, according to the Hon’ble apex court, underlying Section 2 appears to be to prevent the property falling into the hands of third parties if that can be done in a reasonable manner. It would appear from the objects and reasons of the enactment of the Partition Act that as the law stood, the court was bound to give a share to each party and could not direct sale or division of the property. It is in this regard the statement of objects and reasons are relevant and they are reproduced below: ‘The present statutory law on the subject of partition, apart from various local laws dealing with the partition of land paying revenue to Government, is contained in sections 265 and 369 of the Code of Civil Procedure. Section 265 simply enacts that the partition or separation of a revenue paying estate shall be made only by the collector, and need not, therefore, be noticed further, as the present Bill leaves untouched and local laws dealing with the partition of such property. Section 396 lays down the procedure which should be adopted in the partition of lands not paying revenue to Government. That section, however, only authorises the court to divide the property, and in some exceptional cases where an equal division is not practicable to award a money compensation for the purpose of equalising the value of the shares. Section 396 lays down the procedure which should be adopted in the partition of lands not paying revenue to Government. That section, however, only authorises the court to divide the property, and in some exceptional cases where an equal division is not practicable to award a money compensation for the purpose of equalising the value of the shares. But as the law now stands, the court must give a share to each of the parties and cannot direct a sale and division of the proceeds in any case whatever. Instances, however, occasionally occur where there are inseparable practical difficulties in the way of making an equal division, and in such cases the court is either powerless to give effect to its decree or is driven to all kinds of shifts and expedients in order to do so. Such difficulties are by no means of very rare occurrence although in many cases where the parties are properly advised they generally agree to some mutual arrangement, and thus relieve the court from embarrassment. It is proposed in the present Bill to supply this defect in the law by giving the court, under proper safeguards, a discretionary authority to direct a sale where a partition cannot reasonably be made and a sale would, in the opinion of the court, be more beneficial for the parties. But, having regard to the strong attachment of the people in this country to their landed possession: it is proposed to make the consent of parties interested at least to the extent of a moiety in the property a condition precedent to the exercise by the court of this new power. In order at the same time to prevent any oppressive exercise of this privilege, it is proposed to give such of the shareholders as to not desire a sale the right to buy the others out at a valuation to be determined by the court. The power, moreover, which it is proposed to give to the court will be discretionary one to be exercised on a consideration of all the circumstances of the case. It should be added that, where the court is obliged to direct a sale, a right of preemption is given by the Bill to the parties similar to that conferred on shareholders by section 310, Civil Procedure Code. It should be added that, where the court is obliged to direct a sale, a right of preemption is given by the Bill to the parties similar to that conferred on shareholders by section 310, Civil Procedure Code. It is proposed in the Bill to give the court the power of compelling a stranger, who has acquired by purchase a share in a family dwelling house when he seeks for a partition, to sell his share to the members of the family who are the owners of the rest of the house at a valuation to be determined by the court. This provision is only an extension of the privilege given to such shareholders by section 44, paragraph 2 of the Transfer of Property Act, and is an application of a wellknown rule which obtains among Muhammedans everywhere and by custom also among Hindus in some parts of the country. The other sections of the Bill only deal with matters of procedure and do not call for any detailed notice. The decision rendered in the case of RAMAMURTHY has been subsequently relied upon by the Hon’ble apex court in the case of RANI ALOKA DUDHORIA & OTHERS .v. GOUTAM DUDHORIA & OTHERS reported in [2009] 13 SCC 569. Sections 2, 3, 6 and 7 of the Partition Act, 1893, have been discussed at length in the said decision. What is ultimately held in the case of RANI ALOKA is that in a case where Sections 2 and 3 of the Partition Act are invoked, the court is bound to comply with the mandatory provisions and it has no power to direct sale of the property and dehors the mandatory provisions of the above Act. In the said case, the parties had agreed amongst themselves for dispensing with fixation of reserve price and that agreement is considered to be against the mandatory provisions of the Act. 7. Sections 2 and 3 of the Partition Act, 1893, are relevant and are extracted below: 2. In the said case, the parties had agreed amongst themselves for dispensing with fixation of reserve price and that agreement is considered to be against the mandatory provisions of the Act. 7. Sections 2 and 3 of the Partition Act, 1893, are relevant and are extracted below: 2. Power to court to order sale instead of division in partition suits: 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 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, the Court may, if it thinks fit, on the request of any such shareholders interested individually or collectively to the extent of one moiety or upwards, direct a sale of the property and a distribution of the proceeds. 3. Procedure when shares 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 of shares in such manner as it may think fir 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) It two or more shareholders severally apply for leave to buy as provided in subsection (1), the court shall order a sale of the share or 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. 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. Section 3(2) mandates that if two or more shareholders apply for leave to buy as provided in subsection (1), the court shall order a sale of the share or shares to the shareholder who offers to pay the highest price above the valuation made by the court. Subsection (3) of Section 3 provides that 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, which leads to the conclusion that in the absence of predetermining valuation in regard to the share of the property, the property or properties could not have been put to public auction. 8. IN the case of MALATI RAMACHANDRA RAUT .v. MAHADEVO VASUDEO JOSHI (1991 Supp.(1) SCC 321), it is held that it is the duty of the court to order valuation of the share of the party asking for sale of the property under Section 2 and to evaluate and sell the share of such party in terms of Section 3 of the Partition Act at the price determined upon such valuation. 9. Section 6(1) of the Partition Act mandates fixation of reserve price. No such attempt is made by the trial court to fix reserve price, one of the parameters to fix reserve price is to take into consideration the guidance value. He can also rely on the opinion of the expert to fix reserve price. Normally the market value of a residential property in a city like Bengaluru would be more than the guidance value. If the guidance value is taken into consideration, the total value of the property would be Rs.55,00,000/(Rs.5,500/x 1000 sft.). 2. 10. On 16.7.2005, learned counsel for the petitioner chose to file a memo, without prejudice to the rights of the petitioners, that he would be ready to purchase the property for Rs.60,00,000/(rupees sixty lakhs only) inclusive of the shares of others. 2. 10. On 16.7.2005, learned counsel for the petitioner chose to file a memo, without prejudice to the rights of the petitioners, that he would be ready to purchase the property for Rs.60,00,000/(rupees sixty lakhs only) inclusive of the shares of others. On the other hand, learned counsel for the respondents has chosen to file a memo on 10.7.2015 stating that the respondents would be ready to pay Rs.15,00,000/towards the share of this petitioner G. Sathyavelu, and if the valuation is above 1.05 crores, they would be ready to pay their respective share at the special evaluation above Rs.1.05 crores. These memos would be of some help to the court in fixing the reserve price. 11. Suffice to state that the approach adopted by the trial court is not in accordance with the mandatory provisions of Sections 2, 3 and 6 of the Partition Act. These aspects could have been considered by the trial court when the review application was filed by this petitioner as 1st respondent in the final decree proceedings. In this view of the matter, the approach of the trial court is incorrect and improper and violates the mandatory provisions of the Partition Act. Therefore the order dated 8.12.2014 and the consequential order dated 21.2.2015 will have to be set aside by allowing the petitions. 11. In the result, the following order is passed: ORDER The petitions are allowed. The impugned order dated 8.12.2014 and 21.2.2015 passed in FDP.131/12 are set aside. The matter is remitted to the trial court to pass appropriate orders keeping in mind the mandatory provisions of the Partition Act, 1893, and the law reiterated by the Hon’ble apex court in the case of RANI ALOKA. This exercise shall be done at the earliest. Send a copy of this order to the trial court at the earliest.