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Kerala High Court · body

2016 DIGILAW 207 (KER)

YUNUS C. M. v. C. M. ABOOBACKER

2016-02-23

K.ABRAHAM MATHEW

body2016
JUDGMENT : In a suit for partition what is the procedure to be followed when the court finds that division of the property by metes and bounds cannot be conveniently or reasonably made ? 2. The petitioner is the 1st defendant, respondents 1 and 2 the plaintiffs and the other respondents defendants 2 to 7 in the suit from which this Original Petition arises. The suit is for partition of 2.3 areas of land with a house thereon. A preliminary decree was passed directing its partition. The petitioner and respondents 3 and 4 are entitled to 1/6 share each. Respondents 1 and 2 together are entitled to 2/6 shares and respondents 5 to 8 together are entitled to 1/6 share. The commissioner appointed by the court in the final decree proceedings reported that partition of the property by metes and bounds cannot be conveniently made as its extent is too small. The learned Munsiff ordered sale of the property under the provisions of the Partition Act of 1893. Thereafter the petitioner filed an application to permit him to purchase the share of the other co-owners. No orders have been passed on it. In this O.P he prays for issuance of certain directions to the court below. 3. Heard the learned counsel for the petitioner. 4. There is no controversy that division of the property involved in the suit cannot be reasonably or conveniently made because the extent of the land is very small and there is a building on it. 5. Sections 2 and 3 of the Partition Act of 1893 which are relevant are extracted below: 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 of one moiety or upwards, direct a sale of the property and a distribution of the proceeds. 3. 3. (1) If 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 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. 6. In Manapurath Abdulla v. Assiya and Others (2014 (3) KHC 146 = 2014 (3) KLT 466 ) a learned single judge of this court considered a similar question. The extent of the land in that case was 8.63 cents. There was a residential building on it. The preliminary decree directed partition of the property and allotment of 1/7 share to the plaintiff, 2/7 shares to the 1st defendant and 1/7 share each to defendants 2 to 5. The plaintiff filed final decree application in 1996. In 1997 the 1st defendant filed an application to allow him to purchase the shares of the other co-owners. Later, the plaintiff also filed an application to allow him to purchase the shares of the other co-owners. The trial court ordered sale of the property among the co-sharers. This was challenged before the High Court. The learned single judge took notice of two facts: 1) the building on the land was in the occupation of the 1st defendant and she had no other house to live in, but the plaintiff had a house of her own and 2) by the time the case came up for hearing in the High Court the 1st defendant had purchased the shares of two other co-owners (But there was no evidence that the documents were registered). The learned judge held that under Section 3 of the Partition Act the court can adopt an equitable method of division. The observation in paragraph 6 of the judgment is significant: "Being a major share holder in that property, and especially when he is occupying the building therein as his residence, equity demands the principle of owelty to come into play under Section 3 of the Partition Act, 1893." Obviously, the learned judge took the view that Section 3 of the Partition Act was applicable to the facts of the case, for which reliance was placed on the decision of the Supreme Court in Badri Narain Prasad Choudhary v. Nil Ratan Sarkar ( AIR 1978 SC 845 ). A direction was issued to the trial court to ascertain the market value of the property so as to enable the first defendant to pay the value of the shares of the other sharers as owelty. 7. The facts of the case in Badri Narain Prasad's case (supra) were as follows: Division of the property by metes and bounds could not have been made conveniently. The plaintiff made a request to allow him to purchase the defendant's share at a price which might be held reasonable and proper by the court. The defendant expressed his willingness to buy the shares and rights of the plaintiffs at a price that might be fixed by the court. But the trial court directed sale of the property between the plaintiffs and the defendant. It was challenged in appeal before the High Court, which held that the plaintiffs clearly made out a case to be dealt with under Section 2 of the Partition Act and allowed the defendant to purchase the share of the plaintiffs. 8. Paragraphs 12, 13 and 18 in the above judgment are quoted below: 12. Sections 2 and 3 of the Act are inter-linked. A perusal of Ss. 8. Paragraphs 12, 13 and 18 in the above judgment are quoted below: 12. Sections 2 and 3 of the Act are inter-linked. A perusal of Ss. 2 and 3 will show that the Court can exercise the power under S.3, if (i) there is a request of any of such share- holders 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 share-holders. Even when both these conditions are satisfied, the Court has a discretion to direct or not to direct sale of the property and distribution of the proceeds. This is clear from the word "may" used in this Section. 13. 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 so-sharers may, by means of the procedure provided in S.3 buy them out. The request for sale envisaged by S.2 must be one for public sale. If no such request has been made to the Court, S.3 cannot be brought into operation. 18. In short neither in substance nor in form any request within the purview of S.2 had been made by any of the parties (co-sharers). That condition precedent for invoking S.3 (1) was lacking. (emphasis supplied) 9. After entering the finding that the provisions of Sections 2 and 3 of the Partition Act were not applicable to the facts of the case the apex court held that in cases which are not covered by Sections 2 and 3 of the Partition Act the power of the court to partition the property by any equitable method is not affected by the said Act. 10. In Unnimadhavan v. Rugmini Pallikkaramma ( 1980 KLT 892 ) though no reference was made to Badri Narain's case (supra) this court took the view that S. 2 of the Partition Act contemplates a public sale and not one limited to the sharers. 10. In Unnimadhavan v. Rugmini Pallikkaramma ( 1980 KLT 892 ) though no reference was made to Badri Narain's case (supra) this court took the view that S. 2 of the Partition Act contemplates a public sale and not one limited to the sharers. This was followed in the subsequent decision of this court in Santhosh Kumar vs. Indira Mohandas ( 2001(3) KLT 389 ). The provisions of the Partition Act were considered by this court in Sathi Lakshmanan vs. Mohandas ( 2008 (4) KLT 401 ) and Antony vs. Joseph ( 2010 (3) KLT 140 ) also. In the former case this court held: "If all the shareholders agree or the court finds that suit property is incapable of division in specie, it is for the court to devise the most appropriate and suitable method which is beneficial for all the shareholders for a just and fair division of the property. The court has the inherent power to devise the most suitable means. Court can allot the property to one share with a direction to pay owelty to the other shares. Court can also direct a sale of the property among the sharers or public and divide the sale proceeds among the sharers, depending on the facts and circumstances of each case." (emphasis supplied) In the latter case the learned single judge followed the decision of the apex court in Badri Narains's case (supra). 11. Rule 234 of the Civil Rules of Practice also requires notice in this context. Sub rule 1 which is relevant is extracted: "When it is ordered in a partition suit that any property may be sold and proceeds divided, persons other than the co-owners shall not be permitted to bid in the sale, unless it appears to the Court that it is just and expedient to order otherwise." This rule does not speak of the power of the court to order sale; it only provides that if the court orders sale of the property and division of the sale proceeds among the co-owners, the sale shall be among co- owners. 12. If the Partition Act, which is the only statute which empowers the court to order sale of a property in a partition suit, is not applicable to a case what the court shall do. 12. If the Partition Act, which is the only statute which empowers the court to order sale of a property in a partition suit, is not applicable to a case what the court shall do. In the absence of a statutory provision the court can order sale of the property in exercise of its inherent power. As mentioned above, when such an order is made, Rule 234 of Civil Rules of Practice provides, it shall be among the co-owners. But there is an exception. If it appears to the court that it is just and expedient to order otherwise, it may order sale in public auction. 13. In Antony's case (supra) the learned Judge has observed: " A sale among the sharers can be ordered by the court so that third parties will not outbid the sharers and acquire the property. An auction in a closed circle, namely, among the sharers, may appear to the court to be the most ideal solution in certain cases. One or more sharers may be able to acquire the property by offering higher amount. If a public sale is ordered, such an opportunity may sometimes be not available to the sharers. In the facts and circumstances of each case, the court may have to deal with varied solutions and different and distinct problems". 14. There may be cases in which one of the co-owners alone can afford to purchase the share of the other co-owners. In such cases if the property is ordered to be sold among the co-owners, the only co- owner who has financial capacity to buy the property may buy it for a meager price. To avoid it it is proper that the court orders public sale in such cases. 15. On the basis of the precedents discussed above the legal position may be said to be this: (1) To attract Section 2 of the Partition Act there should be a request for public sale on the part of one of the co-owners who is entitled to a moiety or upwards. (2) Only if Section 2 is attracted Section 3 of the Act comes into play. (3) Merely because one of the co-owners invoked the provision in Section 2 the court is not bound to order sale in public auction. (2) Only if Section 2 is attracted Section 3 of the Act comes into play. (3) Merely because one of the co-owners invoked the provision in Section 2 the court is not bound to order sale in public auction. (4) If the court does not proceed under Section 3 though one of the co-owners made a request under Section 2 of the Act, or if the Act is not applicable because there is no request under Section 2, the court can order sale of the property in exercise of its inherent power. (5) Such sale shall ordinarily be among the co- owners; but if the circumstances do not justify it, the property shall be sold in public auction. 16. In Manapurath Abdulla's case (supra) there was no request on the part of any of the co-owners for sale of the property in public auction. The request made by the two co-owners separately was not for sale in public auction; they only offered to purchase the share of the other co-owners. Section 2 of the Partition Act and, consequently, Section 3 of the Act were not applicable. It is not under Section 3 of the Partition Act the court directs partition by an equitable method, but when section 3 is not applicable. Where such direction is issued, the court is bound to proceed under Rule 234 of the Civil Rules of Practice. The decision in Manappurath Abdulla's case does not lay down the correct law. 17. In the case on hand there was no request by any of the co-owners to sell the property in public auction. The court suo motu ordered sale of the property under the provisions of the Partition Act, which is illegal. The application filed by the petitioner in this O.P is not for public sale. He has only made a request to the court to permit him to purchase the share of the other co-owners. This does not satisfy the requirements of Section 2 of the Partition Act. So the only option before the court is to order sale among the co-owners unless the circumstances do not justify it. In the result, this Original Petition is disposed of with a direction to the learned Munsiff to pass appropriate orders on the application filed by the petitioner.