C. Thankarajan v. S. Esabella

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN & THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **THURSDAY, THE 19TH DAY OF JUNE 2014/29TH JYAISHTA, 1936** **Mat.Appeal.No. 211 of 2005 ( ) -------------------------------** **AGAINST THE JUDGMENT IN OS 476/1992 of FAMILY COURT,TRIVANDRUM DATED 31-05-2002.** **APPELLANT (DEFENDANT)::** **-----------------------------------------** **C. THANKARAJAN, THUNDUKANJIRAM NINNA VEEDU, THIRUPURAM P.O., NEYYATTINKARA, TRIVANDRUM.** **BY ADV. SRI.G.S.REGHUNATH.** **RESPONDENT/(PLAINTIFF)::** **---------------------------------------** **S. ESABELLA, REVATI HOUSE, GRAMOM JUNCTION, NEYYATTINKARA, TRIVANDRUM.** **BY ADVS. SRI.K.S.HARIHARAPUTHRAN SRI.GEORGE MATHEW.** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 19-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **amk** **V.K.MOHANAN & A.HARIPRASAD, JJ. ------------------------------------------------------Mat. Appeal No.211 of 2005 ------------------------------------------------------Dated this the 19[th] day of June, 2014.** ## **J U D G M E N T** ## **A.Hariprasad, J.** The appellant is challenging the judgment in the final decree proceedings in O.S.No.476 of 1992 on the file of the Family Court, Thiruvananthapuram. The appellant was the husband of the respondent. They severed their marital relationship by a decree of divorce. 2. Heard the learned counsel for the appellant and the learned counsel for the respondent. We have carefully perused the records. 3. Learned counsel contended that the appellant owns 19½ cents of property and a residential building thereon. The property in dispute is a pathway leading to the residential compound of the appellant. 19 ½ cents of land mentioned above exclusively belongs to the appellant. When cordiality subsisted between the appellant and the respondent, he purchased the **Mat. Appeal No.211 of 2005 2** plaint schedule property in the joint names of the respondent and himself. The disputed property is a narrow strip of land and it was purchased for facilitating access to the residential compound. Learned counsel for the appellant submitted that the disputed property is being used as a pathway to take vehicles to the residential compound. 4. Later, marital relationship between the appellant and the respondent became strained and they obtained a decree for divorce. Thereafter, the appellant remarried. Subsequently, the respondent filed a suit for partition against the appellant in respect of the land used as pathway. The trial court passed a preliminary decree in the matter. There was no challenge against the preliminary decree. Learned counsel for the appellant submitted that in the final decree proceedings, the appellant filed an application under Section 2 of the Partition Act. The provision reads as follows : ## **Mat. Appeal No.211 of 2005 3** “ _**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 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_ .” 5. The appellant submitted before the court below that by reason of the nature of property to which the suit relates and reckoning the shape of the property, a division of the same cannot reasonably or conveniently be made. It was also ## **Mat. Appeal No.211 of 2005 4** submitted by the appellant before the court below that sale of the property and distribution of its proceeds would be more beneficial to both the shareholders. It is also submitted by the learned counsel for the the appellant that the respondent did not file any objection to this petition and she did not offer to purchase the property. Grievance of the appellant is that without considering the petition under Section 2 of the Partition Act, the court below granted partition by metes and bounds, virtually dividing the pathway into two narrow strips rendering it completely useless. 6. The final decree passed by the court below reads as follows : - “ _1. The plot ABEF shown in Ext.C1(a) plan having an extent of 1.997 cents is allotted to the defendant and the plot BCDE having an extent of 1.997 cents is allotted to the plaintiff and the value of the same is fixed as Rs.5000/- per cent. Further it is held that the plaintiff is entitled to get separate_ **Mat. Appeal No.211 of 2005 5** _possession of the plot allotted to her. The plaintiff has to produce stamp paper for engrossing final decree as per the valuation fixed above._ _2. The claim for mesne profits is disallowed._ _3. Plaintiff is allowed to get possession of the B schedule movables in which her name is inscribed._ _4. Parties are directed to bear their respective costs._ _5. Copy of Ext.C1(a) plan shall form part of the decree and appended thereto.”_ 7. We carefully perused Ext.C1(a) plan. It can be seen that the pathway is having an extent of 3.88 cents. The appellant and the respondent each are entitled to get half share in the property. The court below failed to note that this narrow strip of land was purchased by the parties for providing a motorable access to the residential compound and the building thereon. On a mere look at Ext.C1(a) plan, it is discernible that the property cannot be conveniently partitioned by metes and bounds. Learned counsel for the appellant submitted that the respondent/plaintiff has not even an inch of property on any side ## **Mat. Appeal No.211 of 2005 6** of the disputed pathway. On these reasons, it is submitted by the learned counsel for the appellant that the court below committed a grave legal error in directing partition of the property by metes and bounds. 8. Section 3 of the Act deals with the procedure when a sharer undertakes to buy. It 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 or shares to the shareholder who offers to pay the highest price_ ## **Mat. Appeal No.211 of 2005 7** _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.”_ 9. Learned counsel for the appellant submitted that there was a request made by the appellant under Section 2 of the Partition Act directing sale of the property. The Commissioner appointed by the trial court valued the property at the rate of `5,000/- per cent. Going by the extent of the total property and the share interest of each parties, it can be seen that the value receivable by each party will approximately be `10,000/-. 10. Learned counsel for the appellant placed reliance on _**Abdulla Haji v. Kunhamina [1960 KLT 1358]**_ , wherein the scope of Section 2 of the Partition Act was considered. The ratio reads as follows : “ _What S.2 means is that if a property_ ## **Mat. Appeal No.211 of 2005 8** _cannot be conveniently divided between all the sharers, then the procedure laid down in it may be followed in effecting the partition. It cannot be that if it is possible to divide the property between 2 or more sharers, though not between all the sharers, then the section has no application. There is little doubt that the section is attracted in every case where a division of the property between all the shareholders cannot reasonably or conveniently be made and where a sale of the property and distribution of its proceeds would be most beneficial for all the shareholders. The section proceeds on the footing that, while the proper way of effecting a partition is to give each sharer a portion of the property, where that is not practicable, the fair course would be to sell the property to the best advantage and divide the proceeds, not to give the property or a portion thereof to some alone of the sharers & let the rest be content to share the proceeds.”_ 11. Section 2 of the Act is enacted with a definite intention and purport. In any suit for partition by reason of the nature of the property which is to be partitioned 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 the sale of the property and **Mat. Appeal No.211 of 2005 9** distribution of the proceeds would be more beneficial for all the shareholders, the court may 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. The principle underlying the Section is that a partition ought not be made if by partition the intrinsic value of the property would be destroyed. In such a case, money compensation should be given in lieu of the share to which a shareholder may be entitled. It is also settled law that the court can only order a sale if requested to do so by the owners of 50% share in the property or more. Here in this case, the appellant had filed an application under Section 2 claiming right to purchase. He has 50% share interest in the property. 12. Recourse to Section 3 of the Partition Act should be taken only when a sale has been applied for under Section 2 of the Act by the shareholder to the extent of one moiety or more. ## **Mat. Appeal No.211 of 2005 10** There is no case for the respondent that she has opted to purchase the property for the market value. 13. For determining the market value, the court has ample powers. In this case, a Commissioner was deputed in the final decree proceedings. The valuation was done in the year 1998. The Commissioner submitted a report on 28-10-1998 fixing the market value at the rate of `5,000/- per cent. This court will have to reckon the elapse of 16 years after the determination of the market value. By operation of Section 3, the co-sharer, who is making an application for purchase becomes entitled to get the property at the valuation fixed by the court. After elapse of 16 years, no one can think that the value of the property remained static for all these years. Rise in land price is a phenomenon coming within the common knowledge. The litigation started in the year 1991. A mere look at Ext.C1(a) plan will show that none of the parties will be benefited by a **Mat. Appeal No.211 of 2005 11** division of the property by metes and bounds. Reckoning the increase in the land value and the attending circumstances, we are of the view that the price of land per cent can be fixed at `25,000/-. Learned counsel for the appellant submitted that he is prepared to purchase the share of the respondent for an amount of `50,000/-. As we find that the property cannot be partitioned by metes and bounds, the appeal is allowed and the matter is remitted back to the trial court with following directions : The appellant is allowed to purchase the share of the respondent for a total price of `50,000/- (Rupees Fifty Thousand only). He shall either pay the money to the respondent directly or deposit the same before the court below within a period of one month from today. In that event the respondent shall execute a release deed/sale deed in respect of the property alloted to her as per Ext.C1(a) plan to the appellant. If the respondent did not comply with the above directions, the **Mat. Appeal No.211 of 2005 12** appellant is free to move the court below for appropriate directions to effectuate the decree in accordance with law. The parties shall appear before the trial court on 14[th] July, 2014. There is no order as to costs. **Sd/V.K.MOHANAN, JUDGE. Sd/A.HARIPRASAD, JUDGE.** amk //True copy// P.A to Judge