K. C. Sathi Lakshmanan and K. C. Praveen v. P. C. Mohandas and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** **THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR** **THURSDAY, THE 3RD JULY 2008 / 12TH ASHADHA 1930** **WP(C).No. 4546 of 2007(N)** **-------------------------** **OS.224/1999 of III ADDL.SUB COURT, KOZHIKODE** **....................** ## **PETITIONERS:** **----------------------** ## **1. K.C.SATHI LAKSHMANAN,** - **W/O.LAKSHMANAN, POOVADAN HOUSE, RED CROSS ROAD, KOZHIKODE.** **2. K.C.PRAVEEN, S/O.K.C.SATHI LAKSHMANAN, POOVADAN HOUSE, RED CROSS ROAD, KOZHIKODE.** **BY ADV. SRI.GOVIND K.BHARATHAN (SR.) SRI.SARVOTHAMAN SRI.PRABIN BABU** **RESPONDENTS:** **1. SRI.P.C.MOHANDAS, S/O.KUMARAN,** - **R.V.NAGAR, NO.192, UNION CARBIDE COLONY, CHENNAI- 51.** **2. SRI.P.C.MITHRAN, S/O.KUMARAN, PRAKASH BHAVAN, KARUVISSERY, KOZHIKODE TALUK.** **3. NAYANA D/O.LATE NALINI BHARATHAN, PRAKASH BHAVAN, KARUVISSERY, KOZHIKODE TALUK.** **4. ANITHA, D/O.LATE NALINI BHARATHAN, PRAKASH BHAVAN, KARUVISSERY, KOZHIKODE TALUK.** **5. DHANYA, D/O.LATE NALINI BHARATHAN, PRAKASH BHAVAN, KARUVISSERY, KOZHIKODE TALUK.** **6. P.C.PRASANNA BHARATHAN, D/O.KUMARAN, VALLUVAKANDY HOUSE, PALLIKKUNNU P.O., KANNUR.** Kss **..2/-** **...2.....** ## **WPC.NO.4546/2007 N** **7. VEEJA, D/O.P.C.PRASANNA BHARATHAN, VALLUVAKANDY HOUSE, PALLIKKUNNU P.O., KANNUR.** **8. SHEEMA, D/O.P.C.PRASANNA BHARATHAN, VALLUVAKANDY HOUSE, PALLIKKUNNU P.O., KANNUR.** **9. VIPIN, S/O.P.C.PRASANNA BHARATHAN, VALLUVAKANDY HOUSE, PALLIKUNNU P.O., KANNUR.** **10. P.C.SOMANATH, S/O.KUMARAN, BHEL TOWNSHIP, P3/519, TRICHY-11, TAMILNADU.** **11. SREEDEVI VENUGOPAL,** **D/O.RAGHAVAN, PALM AVENUE, NEAR MANIKKOTH HOUSE, WEST TALAPPU, KANNUR-1.** **12. ANOOP, S/O.SREEDEVI VENUGOPAL, PALM AVENUE, NEAR MANIKKOTH HOUSE, WEST TALAPPU, KANNUR-1.** **13. SHEEJA, D/O.SREEDEVI VENUGOPAL, PALM AVENUE, NEAR MANIKKOTH HOUSE, WEST TALAPPU, KANNUR-1.** **14. AJAYAN, S/O.SREEDEVI VENUGOPAL, PALM AVENUE, NEAR MANIKKOTH HOUSE, WEST TALAPPU, KANNUR-1.** **15. K.C.VIDYA. D/O.KC.SATHI LAKSHMANAN, POOVADAN HOUSE, RED CROSS ROAD, KOZHIKODE.** **16. K.C.NAVEEN, S/O.K.C.SATHI LAKSHMANAN, POOVADAN HOUSE, RED CROSS ROAD, KOZHIKODE.** **17. LALITHA NARAYANAN, D/O.KUKNHIRAMAN, KASMIKANDY COMPOUND, BANK ROAD, KOZHIKODE. ( D I E D)** **18. NIKHILESH, S/O.LALIHA NARAYANAN, KASMIKANDY COMPOUND, BANK ROAD, KOZHIKODE.** **19. AKHILESH, S/O.LALITHA NARAYANAN, KASMIKANDY COMPOUND, BANK ROAD, KOZHIKODE.** Kss **..3/-** **...3...** ## **WPC.NO.4546/2007 N** **20. K.C.INDRASENAN, S/O.KUNHIRAMAN, KASMIKANDY COMPOUND, BANK ROAD, KOZHIKODE.** **21. JAYALAKSHMI MADHAVAN, D/O.KUNHIRAMAN, KASMIKANDY COMPOUND, BANK ROAD, KOZHIKODE.** **22. SREERAM, S/O.JAYALAKSHMI MADHAVAN, KASMIKANDY COMPOUND, BANK ROAD, KOZHIKODE.** **23. DEEPA, D/O.JAYALAKSHMI MADHAVAN, KASMIKANDY COMPOUND, BANK ROAD, KOZHIKODE.** **24. MADHU RAM, S/O.JAYALAKSHMI MADHAVAN, MASAR, MUTSU ENGINEERING SHIP BUILDING COMPANY, P.B.NO.1838, JUBAVIL, 31951, K.S.A.** **25. MANORAM, S/O.JAYALAKSHMI MADHAVAN, KASMIKANDY COMPOUND, BANK ROAD, KOZHIKODE.** **26. VIMALA CHANDRASEKHAR, D/O.KUNHIRAMAN, KSMIKANDY COMPOUND, BANK ROAD, KOZHIKODE.** **27. REEJA, D/O.VIMALA CHANDRASEKHAR, KASMIKANDY COMPOUND, BANK ROAD, KOZHIKODE.** **28. MAHESH, S/O.VIMALA CHANDRASEKHAR, P.B.NO.2393, DUBAI, U.A.E.** **29. RAKESH, S/O.VIMALA CHANDRASEKHAR, D/O.KUNHIRAMAN, KASMIKANDY COMPOUND, BANK ROAD, KOZHIKODE.** **30. K.VIJAYA RAGHAVAN, S/O.KUMARAN, KARTHIKA, KACHERUY AMSOM DESOM.(EXPIRED)** **31. C.V.DHARMARAJ, S/O.NARAYANAN, MOOLIYIL HOUSE, KALTEX JUNCTION, KANNUR-2.** **32. C.V.RATHI, D/O.NARAYANAN, MOOLIYIL HOUSE, KALTEX JUNCTION, KANNUR-2.** Kss **..4/-** **...4....** ## **WPC.NO.4546/2007 N** **33. C.V.ARJUN, S/O.NARAYANAN, MOOLIYIL HOUSE, KALTEX JUNCTION, KANNUR-2.(EXPIRED)** **34. M.V.MEERA, D/O.HARIDAS, MOOLIYIL HOUSE, KALTEX JUNCTION, KANNUR-2.** **35. M.V.PREETHA, D/O.HARIDAS, MOOLIYIL HOUSE, KALTEX, JUNCTION, KANNUR-2.** ## ***ADDL.R36 TO R38 ARE IMPLEADED:** - **R36. SARADA VIJAYA RAGHAVAN, KARTHIKA, BILATHIKULAM, CALICUT – 673 001.** - **R37. LEKHA, D/O.SARADA VIJAYA RAGHAVAN, KARTHIKA, BILATHIKULAM, CALICUT – 673 001.** - **R38. SHILA SETHURANI, 213-D-ORCHID, BEHIND JAIN TEMPLE, GOVANDI, MUMBAI – 400 088.** - **(*ADDL.R36 TO R38 ARE IMPLEADED AS PER ORDER DTD. 3/07/2008 IN I.A.NO.9732/2007)** - **ADV.SRI.C.P.MOHAMMED NIAS FOR R1 TO 7,10,11** - **SRI.A.SUDHI VASUDEVAN** - **SRI.JOJO VARGHESE** - **SMT.S.SHEEJA KUMARY(AYOOR)** - **SRI.A.SUDHI VASUDEVAN FOR R24,28** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/06/2008 THE COURT ON 3/07/2008 DELIVERED THE FOLLOWING:** Kss ## **WPC.NO.4546/2007 N** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1; COPY OF THE ORDER DTD. 04/12/2006 OF THE LEARNED 3RD ADDITIONAL SUB JUDGE, KOZHIKODE. EXT.P2: COPY OF TH DATED 16/12/2006 IN FDIA.761/03 IN O.S.224/1999 OF THE 3RD ADDITIONAL SUB JUDGE, KOZHIKODE. EXT.P3: COPY OF THE ORDER DTD. 10/01/2007 OF THE LEARNED 3RD ADDITIONAL SUB COURT, KOZHIKODE.** ## **RESPONDENT'S EXHIBITS: N I L** **/TRUE COPY/** **P.S.TO JUDGE** Kss ## **M.SASIDHARAN NAMBIAR,J.** =========================== W.P.(C) NO.4546 OF 2007 =========================== Dated this the 3rd day of July, 2008 ## JUDGMENT When there is no request as provided under section 2 of Partition Act, whether Court is competent to direct sale of the property by auction among the sharers or by public auction? Whether for an equitable and fair division of the property dehors of Partition Act court can direct sale of the property or is it mandatory to allot the property to one of the sharers with a direction to pay compensation to the other sharers if it is found that the property cannot be reasonably and conveniently be divided. These are the questions to be answered in this Writ Petition filed under Article 227 of the Constitution of India. 2. The facts are not complicated. O.S.224/1999 was instituted before Sub Court, Kozhikode for partition and separation of share of plaintiffs. As per the preliminary decree, it was found that W.P.(C) 4546/2007 2 plaint schedule property is available for partition and it is to be divided into 26 equal shares and plaintiffs are entitled to one share. So also defendants 5 to 8 together are entitled to one share. Plaintiffs filed I.A.761/2003 for passing a final decree in accordance with the preliminary decree.A Commission was appointed to divide the property. Commissioner submitted report stating that property cannot be divided into 26 equal shares as it is a residential plot having an extent of 15 cents comprised in survey No.253 of Kalathinkunnu Village of Kozhikode and is the residential building and its appurtenant land and it is not feasible or possible to divide the property into 26 shares. Defendants 5 to 8 then raised a claim that they have been residing in the building for the last 60 years and therefore the property is to be allotted to them. It was resisted by the other sharers including plaintiffs contending that defendant No.5 is owning a double storied residential building and W.P.(C) 4546/2007 3 allotment of the property to defendants 5 to 8 is not equitable. Learned Sub Judge found that the property cannot reasonably or conveniently divided and conducted an enquiry. As per order dated 4.12.2006 court directed defendants 5 to 8 to produce the title deed relating to their property having a double storied residential building owned by 5[th] defendant making it clear that on their failure to produce the document, property will be put to auction among the sharers and if so all the sharers would get their share in the sale proceeds. Finding that it is not feasible or possible to divide the property into 26 equal shares and defendants 5 to 8 did not produce the document as directed, as per order dated 16.12.2006, learned Sub Judge held that defendants 5 to 8 are not entitled to allotment of the property to themselves and the property is to be auctioned among all the sharers and posted the case for auction on 10.1.2007. On that day defendants 5 to 8 as one group and all others as another group 4 W.P.(C) 4546/2007 participated in the auction. Defendants 5 to 8 offered to bid for a value of Rs.49,50,000/-. But the other group consisting of plaintiffs and other defendants offered to bid for Rs.50,00,000/- (fifty lakhs only). Learned Sub Judge accepted that offer being the highest and directed to deposit the amount by 12.2.2007. The amount as directed was deposited. By that time defendants 5 to 8 filed this petition to quash Ext.P1 to P3 orders and to direct the trial court to value the property and to allow petitioners to retain the property on payment of the value of the shares to the other sharers declaring that petitioners are entitled to retain the schedule property in which they have been residing uninterruptedly so as to preserve the residential house falling into the hands of strangers. 3. Learned senior counsel Sri.Govindh K. Bharathan appearing for petitioners relying on the commentaries of Partition Act by Basu (Fourth Edition) argued that Partition Act (hereinafter W.P.(C) 4546/2007 5 referred to as the Act) was enacted to preserve the family property falling into the hands of strangers and when it is shown that petitioners have been residing in the residential building for the last more than 60 years, in equity court should have allotted the property to the petitioners with a direction to deposit the value to be fixed by the Court on a valuation and directing division of that amount in proportion to the respective shares. It was argued that direction to sell the property in auction among the sharers is unjust and unfair. Relying on the decision (K.Subba Rao, C.J.) of High Court of Andhra Pradesh in **R.Ramaprasada Rao v.** **R.Subbaramaiah (AIR 1958 A.P.647)** which was relied on by the Apex Court in **Badri Narain Prasad Choudhary v. Nil Ratan (AIR 1978 SC 845)** it was argued that even when provisions of Section 2 and 3 of Act are not applicable, court has the inherent power to evolve an equitable method of W.P.(C) 4546/2007 6 division and auction among the sharers is not the right method. The learned senior counsel relying on the observations in Badri Narain Prasad Choudhary's case (supra) argued that when petitioners who are entitled to one share and the remaining 25 sharers are pitted against each other, and property is auctioned, petitioners could be easily outbid by the other sharers and in such circumstance, it is not an equitable or fair mode of division and instead court should have valued the property and directed petitioners to deposit the amount on such valuation and the orders of the learned Sub Judge are to be set aside. Relying on the decision of a learned single Judge of this Court in **Krishnan v. Narayanan (2002 (3)KLT 165)** it was argued that this court accepted the principle that sharers who are residing in the building are entitled to get the building allotted to them and the other sharers are only entitled to the value of the property to be W.P.(C) 4546/2007 7 assessed by the court and Exts.P1 to P3 orders are to be quashed. 4. Advocate Sri.Sudhi Vasudevan learned counsel appearing for plaintiffs supported by the learned counsel appearing for other defendants argued that Section 2 and 3 of the Act has no application to the facts of the case at all . It was argued that when petitioners are only entitled to 1/26 shares, they are not entitled to get the property allotted to them, especially when it is admitted that 5[th] defendant is owning a double storied residential building which is claimed to be occupied by her daughter 6[th] defendant. Learned counsel also argued that as per the allegations in the Writ Petition itself her sons defendants 7 and 8 are in Gulf and in such circumstance, petitioners cannot be heard to contend that they will be outbid by other sharers and in fact petitioners have better financial wherewithal. It was also argued that as per order dated 4.12.2006, court made it clear that if petitioners are having a residential W.P.(C) 4546/2007 8 building, they cannot claim allotment of the property and in that event the property will be sold among the sharers and the value divided and inspite of the direction to produce title deed in respect of their other residential building, petitioners did not produce the title deed as directed and therefore Ext.P2 order was passed on 16.12.2006 providing for auction among the sharers and auction was conducted on 10.1.2007 and petitioners participated in the auction and bid the property for Rs.49,50,000/- and in such circumstance, they are estopped from contending that they have no financial capacity to bid in the auction sale or that it is not a proper or just method of division and in such circumstance, petitioners are not entitled to challenge Exts.P1 to P3 orders. Relying on the decision of Chief Justice Subba Rao in Ramaprasad Rao v. Subbaramaiah ( AIR 1958 A.P.647) it was held that Court is competent to direct sale of the property among the sharers by auction and it is the most beneficial W.P.(C) 4546/2007 9 mode of division in the circumstance of the case and therefore writ petition is only to be dismissed. Learned counsel relying on the decision of a learned single Judge of this Court in **Anthony Ammal v. Antony (1983 K.L.T. 645)** which was approved by the Division Bench in **Parangodan v. Lakshmikutty(1993 (2) KLT Case No.33)** argued that when it is not feasible to divide the property by metes and bounds, the just and equitable method is to divide the property by auction between the sharers. Relying on the decision of a learned single Judge of this Court in **Sreedharan v** . **Bhaskaran (1963 KLT 692)** it was argued that court has the inherent power to sell any item of property for its equitable distribution and that right is apart from the provisions of the Act and in such circumstance, the Writ Petition is only to be dismissed. 5. The Partition Act (Act IV of 1893) was enacted to amend the law relating to partition. The 10 ## W.P.(C) 4546/2007 statement of objects and reasons reveals that as per the law then stood, court must give a share to each of the parties and cannot direct sale and division of the proceeds in any case whatsoever and instances occasionally occur where there were any insuperable practical difficulties in the way of making an equal division and in such cases court is either powerless to give effect to its decision or is driven to all kinds of shifts and expedients in order to do so. The objects show that the law was enacted to supply the defect in the law by giving the court, under proper safeguards, a discretionary authority to direct sale where partition cannot reasonably be made and sale, would in the opinion of the court be more beneficial for the parties. The power which it was proposed to give to the Court was a discretionary one to be exercised on a consideration of all the circumstances of the case providing that where court is obliged to direct sale, a right of preemption is given to the parties similar to the one W.P.(C) 4546/2007 11 conferred on shareholders under section 310 of the Code of Civil Procedure, 1882. 6. Section 2 and 3 of the Act which are the relevant provisions read as follows:- 2. Whenever 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 shareholders therein, or of any other special circumstance, a division of the property cannot reasonably or conveniently be made, and W.P.(C) 4546/2007 12 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. Procedure when cosharer undertakes to buy- (1) If, in any case in which the Court is requested under the last foregoing section to 13 ## W.P.(C) 4546/2007 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 W.P.(C) 4546/2007 14 (1), the Court shall order a sale of the share or shares to the shareholders 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.” The scheme of Section 2 and 3 is that if the nature of the property is such or the number of shareholders is so many or if there is any other special circumstances and division of the property W.P.(C) 4546/2007 15 cannot reasonably or conveniently be made, court can in its discretion on the request of any of the shareholders interested individually or collectively to the extent of one moiety or upwards, direct sale of the property and distribute the proceeds among the shareholders. Where court has been requested under section 2 by any of the shareholders interested individually or collectively to the extent of one moiety or upwards to direct sale, any other shareholder or shareholders can apply for leave to buy at a valuation, the share or shares of the party or parties asking for sale. In such a situation, court is obliged to order valuation of the share or shares and offer to sell the same to the shareholder who has applied for leave to buy the share at a price ascertained by the Court. In other words, if a plaintiff in a suit for partition has invoked the power to order sale instead of division in a partition as provided under section 2, and the other shareholder undertakes to buy at a W.P.(C) 4546/2007 16 valuation, the share of the party asking for sale, court has no option or choice or discretion left with it. It is bound to order a valuation of the share and offer to sell the same to the shareholder undertaking or applying to buy it at a valuation. The purpose underlying the section undoubtedly is to prevent the property falling into the hands of third parties, if that could be done in a reasonable manner. In case only one sharer apply to purchase the share or shares of the party asking for sale, court has to order sale to that party after ordering a valuation of the share as it may thinks fit. To invoke the power under section 2, it need only appear to the court that by reason of the nature of the property to which the suit relates or all the number of shareholders therein or any other circumstances a division of the property cannot reasonably or conveniently be made and that sale of the property and distribution of the proceeds would be more beneficial for all the shareholders. W.P.(C) 4546/2007 17 7. The sale provided under section 2 is a public sale. The purpose of enactment of Section 3 is to prevent the family property coming into the hands of third parties in the event of a sale as provided under section 2. Considering the scope of Section 2 and 3 Apex Court in **Ramamurthi v.** ## **Rajeswara rao (AIR 1973 SC 643)** held:- “The various stages in the proceedings would be as follows under Ss.2 and 3 of the Partition Act. 1. In a suit for partition if, it appears to the Court that for the reasons stated in S.2 a division of the property cannot reasonably and conveniently be made and that a sale of property would be more beneficial it can direct sale. This can W.P.(C) 4546/2007 18 be done, however, only on the request of the shareholders interested individually, or collectively to the extent of one moiety or upwards. 2. When a request is made under S.2 to the court to direct a sale any other shareholder can apply under Section 3 for leave to buy at a valuation the share of the other party asking for a sale. 3. The court has to order valuation of the share of the party asking for sale. 4. After the valuation has been made the court has to offer to sell the share of the party asking for sale to W.P.(C) 4546/2007 19 the shareholder applying for leave to buy under S.3. 5. If two or more shareholders severally apply for leave to buy the court is bound to 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. 6. If no shareholder is willing to buy such share or shares at the price so ascertained the application under S.3 shall be dismissed, the applicant being liable to pay all the costs. 11. A question which presents a certain amount of 20 ## W.P.(C) 4546/2007 difficulty is at what stage the other shareholder acquires a privilege or a right under S.3 when proceedings are pending in a partition suit and a request has been made by a co-owner owning a moiety of share that a sale be held. One of the essential conditions for the applicability of S.2 of the Partition Act is that it should appear to the court that a division of the property cannot reasonably or conveniently be made. To attract the applicability of S.3 all that the law requires is that the other shareholder should apply for 21 ## W.P.(C) 4546/2007 leave to buy at a valuation. Once that is done the other matters mentioned in S.3(1) must follow and the court is left with no choice or option. In other words, when the other shareholder applies for leave to buy at a valuation the share of the party asking for a sale the court is bound to order valuation of his share and offer to sell the same to such shareholder at a price to be ascertained.” But section 2 and 3 of the Act can be invoked by the court only on the request or application by a qualified shareholder. Section 2 contemplates request of any of the shareholders interested individually or collectively to the extent of one moiety or upwards, for a sale of the property and 22 ## W.P.(C) 4546/2007 distribution of the proceeds. To invoke that power on the request of the shareholder interested to the extent of one moiety or upwards, it should appear to the court that by reason of the nature of the property to which the suit relates or to the number of shareholders therein or of any other special circumstance division of the property cannot reasonably or conveniently be made and that sale of the property and distribution of the sale proceeds would be more beneficial for all the shareholders. Sub section (1) of Section 3 can only be applied in a case where a request is made under section 2 for a sale. Under sub section (1) in such a case if any other shareholder applies for leave to buy at a valuation of the share or shares of the party or parties asking for sale the court shall order a valuation and shall offer to sell the same to such shareholder at the price so ascertained. Under sub section (2) if one or more shareholders also apply for leave to buy as provided under sub section (1), court shall offer sale to the share or shares who W.P.(C) 4546/2007 23 offers to pay the highest price above the valuation made by the court. Therefore when there is no request for a sale by any shareholder interested individually or collectively to the extent of one moiety or upwards as provided under section 2 court cannot direct a sale. In that case no other sharer can apply for leave to buy as provided under section 3. Hence section 3 cannot be invoked in a case where there is no request for a sale as provided under section 2. In such a case court cannot invoke the provisions of Act and direct a sale either public or among the sharers. 8. Admittedly in this case no request was made by any shareholder interested individually or collectively to the extent of one moiety or upwards as provided under section 2. Naturally Section 3 has no application and no other shareholder can apply for leave of the court to purchase the other shares. It is based on the report submitted by the Commissioner disclosing that it is not feasible or possible to divide the decree schedule property W.P.(C) 4546/2007 24 having an extent of 15 cents, into 26 equal shares court found that property cannot be divided. It is admitted that major portion of the property is occupied by the residential house and the remaining portion is its appurtenant land. Learned Sub Judge rightly found that the property cannot be divided equally. This factual finding was not disputed by any of the parties. It is in such circumstances the learned Sub Judge directed sale of the property among the sharers. That order was made in a case where the provisions of Section 2 or 3 cannot be applied. 9. Then the question is whether dehors of the provisions of the Act court is competent to direct sale of the property found to be available for partition and independent of the provisions of the Act court has the inherent power to direct division of the property in an equitable just and fair mode by ordering sale. This aspect came up for consideration in **Raj Goomari Dasi v. Gopal** W.P.(C) 4546/2007 25 **Chander Bose (I.L.R. 3 Calcutta 514).** In that case, decree directed partition of family dwelling house with appurtenant land including a poojah dalan and courtyard adjoining it. The amin to whom the duty of partition of the property was entrusted, at the request of two out of three co-parceners, did not divide the poojah dalan and the court yard. The court inspite of the objection by the third coparcener directed that property should remain undivided. When that was challenged, White J. held that having regard to the form of the decree, it was not open to the court executing it to order that any part of the property should remain joint, except with the sanction of all the co-parceners. On that basis it was directed that two items left undivided be valued and if any one or two of the co-parceners wish to retain the same separately or jointly as part of his or their share, proportionate share of its value be paid to the remaining co-parcener or co-parceners and if none of them agree to take the same as part of their W.P.(C) 4546/2007 26 share, the items should be divided between the coparceners. Thus the court recognized the principle that in a case where there are many items to be divided and one of the items cannot conveniently be divided, it can be allotted to one of the sharers and the sharer to whom it is allotted can be made to compensate the other sharer in money value. 10. In **Assanullah v. Kali Kinkar (I.L.R.10** **Cal.675)** the disputed properties consisted of nine houses. Plaintiff had two shares and defendant one share. The lower appellate court held that as plaintiff wanted partition, compensation might be paid to him in lieu of his share. The High Court set aside the finding and directed division of the property. Field J. held that where the effect of partition would result in destruction of intrinsic value of the whole property or of the shares, court would pay to the plaintiff compensation to his share instead of division of the property. 11. Calcutta High Court in **Debendra Nath** W.P.(C) 4546/2007 27 ## **Bhattacharjee v. Hari Das Bhattacharjee (15** **C.W.N.552)** rejected the plea that the property is to be allotted to the plaintiff who was in possession of the property at the time of institution of the suit, holding that proper course is to direct sale of the property among cosharers and property should be given to that shareholder who offers to pay the highest price above the valuation made by the court. It was held that it is the elementary principle that in cases of partition where several persons are co-owners or co-sharers of immovable property, partition should be affected between them by giving to each his share in specie as far as practicable and the right of each sharer is to his slice of the property, not merely its money vlaue. Finding that parties have not chosen to follow the procedure provided under the Act it was held:- **==> picture [325 x 72] intentionally omitted <==** W.P.(C) 4546/2007 28 thereof amongst all the shareholders cannot reasonably or conveniently be made. The proper course, therefore, to follow, is to direct a sale of the property among the co-sharers, and it should be given to that shareholder who offers to pay the highest price above the valuation made by the court. The defendant cannot, in our opinion, be compelled to transfer his share at a valuation to the plaintiff, merely because the latter happened to have possession of the property at the time when they commenced the present application.” A Division Bench of the High Court of Allahabad in ## **Ram Prasad v. Mt.Mukandi (A.I.R.1929 Allahabad 443)** holding that in that case request made by the plaintiff who is a two third sharer, was that sale may be held and whoever among the co-sharers offers the highest bid may be given the property 29 ## W.P.(C) 4546/2007 and so it does not contemplate a sale at which any outsider could bid. On the facts it was held: **==> picture [220 x 12] intentionally omitted <==** treated as a request under S.2, it is apparent from S.3, Partition Act, that if the shareholder of a smaller interest chooses he can ask for leave to buy the property at a valuation by the Court, and if he does not do so, then the property is to be sold under the provision of S.6 of Partition Act, when the plaintiff can bid for the property to ensure that a proper price is obtained for the property at the sale. In our opinion, the Partition Act ## W.P.(C) 4546/2007 30 must be construed strictly as the provisions of the Act, especially S.3, exclude the right of the majority shareholder to acquire the property the subject of partition at the option of the minority shareholder.” It was finally held that the provisions of Partition Act did not apply to the facts of the case. Therefore decree of the trial court was set aside and suit was remanded directing to hold sale of the property among the sharers directing that property should be given to that shareholder who offers to pay the highest price above the valuation made by the court. The Division Bench in that case directed sale of the property in between the sharers eventhough it was found that provisions of the Act is not applicable. 12. A single Judge of High Court of Calcutta 31 W.P.(C) 4546/2007 in **Mohit Krishna Kundu v. Pranab Chandra (AIR 1930 Calcutta 616)** had taken a divergent view. In that case it was found that there was no request by a co-sharer interested to the extent of one moiety or upwards for sale of the property and so Act has no application. It was held that when nature of the property is such that a division thereof amongst all the shareholders cannot reasonably or conveniently be made and parties agreed that no division could be made, court has to adopt the mode laid down in Debendranath Bhattacharjee's case (supra) referred to earlier. 13. Chief Justice Subba Rao in Ramaprasada Rao's case dealt with power of the court to direct sale of the property when provisions of Act is not applicable. Speaking for the Division Bench it was held that Act was designed only to meet a particular contingency and did not in any way affect power of the court to make an equitable distribution of the properties and before the Act court could refuse to order sale of the property, ## W.P.(C) 4546/2007 32 even if conditions laid down in Section 3 were fully satisfied and instead of selling property when it is not capable of equitable division it could have been allotted to one of the sharers whether he is a smaller or larger sharer and direct compensation to be paid to the other sharer or sharers. But, after the Act if conditions laid down therein are satisfied, court has no option but to direct the sale. Holding that partition is the legal process by which joint title and possession of co-owners of the entire joint property is converted into separate title and possession of each of the co-owners in respect of specific item or items and the joint property is divided in specie and each one of the erstwhile joint owners is put in possession of specific extent of the property which is allotted to his share, it was held that but many contingencies may be visualised when in practice division by metes and bounds of every item of joint family property is not possible. It was held:- W.P.(C) 4546/2007 33 “A joint family or joint owners may be possessed of innumerable items of different extents, value, quality and nature. In dividing the properties among the various co-owners, it may not always be possible to divide every item into distinct shares. A property will have to be allotted to one of the sharers and the other has to be compensated with money. This is technically called owelty. Some times, the property to be divided may consist of only one item, which W.P.(C) 4546/2007 34 cannot conveniently and equitably be divided between the members in which case the Court may allot that item to one co-sharer and direct him to pay the value of the share of the other sharer in money. A court may also be confronted with a situation, namely, that the item of property is not capable of physical partition or is such that, if divided, it will lose its intrinsic worth, in such a case, that item is allotted to one and compensation in money value is given to W.P.(C) 4546/2007 35 the other and if such a course is not possible it is sold outright and the sale proceeds divided between the joint owners. All the aforesid and similar other methods are adopted by courts in making an equitable partition of the joint properties either with the consent of the parties or where such consent is not forthcoming, in exercise of its own discretion. Whatever method is adopted, it is only to implement the process of equitable partition. It W.P.(C) 4546/2007 36 would well-nigh be impossible for a court to effectuate a partition on an equitable basis, if it should be held that it is under a legal obligation to divide every item of the joint property in specie. Where it is not, it adopts one or other of the alternative methods narrated above. The provisions of the Partition Act do not, in any, entrench upon the undoubted power of the court to effectuate a partition between the co-owners in one or ## W.P.(C) 4546/2007 37 other of the methods suggested above. Before the Act, a party had no right to insist upon the court to follow a particular course in the process of partition or to insist upon purchasing the share of - the other co owner under certain circumstances.” (emphasis supplied) The said decision was approved by the Apex Court in **Badri Narain Prasad Choudhary's case (supra)** as follows:- “The suit property, being incapable of division in specie, there is no alternative but to resort to the process called owelty, W.P.(C) 4546/2007 38 according to which, the rights and interests of the parties in the property will be separated, only by allowing one of them to retain the whole of the suit property on payment of just compensation to the other. As rightly pointed out by K. Subba Rao, C.J.(speaking for a Division Bench of Andhra High Court in AIR 1958 Andhra Pradesh 647), in cases not covered by Sections 2 and 3 of the Partition Act, the power of the Court to partition W.P.(C) 4546/2007 39 property by any equitable method is not affected by the said Act.” A learned single Judge of this Court in **Sreedharan** - **v. Bhaskaran (1963 KLT 692)** following the decision of Chief Justice Subba Rao in **Ramaprasada Rao's case(supra)** held that Act is not inconsistent with the general power of the court to sell any item of property for its equitable distribution. Another single Judge in **Anthony Ammal v. Antony** **(1983 KLT 645)** considered the very question whether court dehors the provisions of Act has power to order sale. It was held that it cannot be said that Court has no power to direct sale of the property involved in a suit for partition and distribution of sale proceeds among the sharers even if the conditions insisted by Section 2 of the Act is not satisfied. The learned single Judge held:- **==> picture [216 x 10] intentionally omitted <==** ## W.P.(C) 4546/2007 40 see is that there is a just partition. In all cases where the property, or properties, is incapable 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 case. The Partition Act does not take away this power the Court has.” A Division Bench of this Court in **Parangodan** ## **v.Lakshmikutty (1993(2) KLT 33)** followed the said decision and held that “what the court has to see is that there is a just partition and in all cases where the property, or properties, is incapable of partition by metes and bounds, court is not without powers to resort to a feasible method just and 41 W.P.(C) 4546/2007 equitable in the circumstances of the case and the Partition Act does not take away this power”. 14. Facts in **Krishnan v. Narayanan (2002(3)** **KLT 165)** shows that it was a final decree. Defendants 6 and 7 were entitled to 2/56 shares. A Commission was appointed to divide the property. Commissioner submitted report dividing the property into 7 plots and allotting them to the respective sharers. Plaintiff then filed an application as contemplated under section 2 of the Act requesting the court to sell the property in public auction. Defendant No.2 filed an application seeking permission to purchase the shares of the other sharers as provided under section 3 of the Act. On the facts learned single Judge without discussing the case law held that Act does not take away the power of the court to have an equitable partition of the property and held that when a petition is filed for public auction under section 2, though it was dismissed by the trial court intention of the parties have been expressed before the court that W.P.(C) 4546/2007 42 property can be sold and proceeds can be divided among the sharers. In such circumstance, the learned single Judge held:- “The purpose behind S.3 is to prevent the property falling into the hands of third parties. The evidence on record show that the appellant is residing 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 purchase the shares of the other sharers for the value assessed by the court.” Learned single Judge has not analysed the effect of ## W.P.(C) 4546/2007 43 Section 2 and 3 of the Act or the power of the Court not to proceed as provided under section 3 if it is a case where there was a request as provided under section 2 and also an application to buy the share as provided under section 3 of the Act was filed. With due respect to the learned single Judge, if section 2 and 3 of the Act applies, court has no option or power to proceed except as provided under section 3. As stated earlier when it appears to the court that an equitable partition of the property cannot be made and a request is made by one or more shareholder or shareholders interested individually or collectively to the extent of one moiety or upwards for sale of the property and distribution of the proceeds and any of the other sharer or sharers apply for leave to buy the share of that party who requested for sale, court is bound to proceed as provided under section 3 and has to offer to sell the property on the valuation to be made by the court. If in that case another sharer also applies for leave, then W.P.(C) 4546/2007 44 the property has to be offered for sale to that sharer who is prepared to pay the highest above the valuation made by the Court. So, if Section 2 and 3 applies, Court can only proceed as provided thereunder and cannot proceed outside the provisions of the Act or allot the property to one sharer with a direction to compensate the others by owelty. 15. The legal position can thus be summed up as follows:- 1)In a suit for partition, if it appears to the court for the reasons stated in Section 2 of the Partition Act that a division of the property cannot reasonably and conveniently be made and that a sale of the property would be more beneficial to all the sharers court has to direct sale. The sale so contemplated is definitely a public sale. But the order for |W.P.(C) 4546/2007<br>45| |---| |sale can be made only on the| |request of the shareholders| |interested<br>individually<br>or| |collectively to the extent of one| |moiety or upwards.| |(2) When such a request is| |made to the court to direct a| |sale, any other shareholder or| |shareholders can apply under| |section 3 of the Act for leave of| |the court to buy the share of the| |party asking for sale, at a| |valuation. In such a case court| |has to order valuation of the| |share of the party asking for| |sale.| |(3) If such a valuation is made,| |Court has to offer to sell the| |share of the party asking for sale| |to the shareholder applying for| |leave to buy under sub section 2| W.P.(C) 4546/2007 46 of Section 3. (4) If two or more shareholders apply for leave to buy, then Court is bound to order sale of the share or shares to the shareholder who offers to pay the highest price above the valuation made by the court. (5)If no shareholder is willing to buy such share or shares at the price, the application filed under section 3 of the Act is to be dismissed. (6) If there is no request as provided under section 2 of the Act for sale of the property by a shareholder or shareholders interested individually or collectively to the extent of one moiety or upwards, Section 3 cannot have any application. **==> picture [321 x 641] intentionally omitted <==** **----- Start of picture text -----**<br> ||||||| |---|---|---|---|---|---| |W.P.(C) 4546/2007|47| |(7) If section 2 and 3 of the Act| |has no application, partition is| |to|be|effected|dehors|of|the| |provisions of the Partition Act.| |(8) In such a case, 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 sharers. Court| |can also direct a|sale of|the| |property|among|the|sharers|or| |public|and|divide|the|sale| **----- End of picture text -----**<br> |W.P.(C) 4546/2007<br>48| |---| |proceeds among the sharers,| |depending on the facts and| |circumstances of each case. It| |cannot be said that in no case| |there cannot be a sale of the| |property among the sharers or a| |public sale. What is the best mode| |of division in such a case is to| |be decided by the court on the| |facts of that case. Whatever be| |the course so adopted, it must be| |the most beneficial to all the| |sharers. It is not the interest| |of that shareholder in possession| |of the property is to be looked| |into but the interest of all the| |shareholders.| 16. The argument of the learned senior counsel appearing for petitioners relying on the decision of the Apex Court in **Badri Narain Prasad** W.P.(C) 4546/2007 49 **Choudhary's case (supra)** is that sale of the property by auction in between the sharers is not a just and proper method especially when all the other sharers could join together and outbid a deserving sharer who is not financially sound to purchase the property. Reliance was placed on the following observations:- “Although the value of the property could be fixed by auction between the two parties, we feel that this method would be unsatisfactory in this case as plaintiffs who own the major share and have unlimited resources, would outbid the defendant. In the circumstances, we think that the more equitable method would be to take W.P.(C) 4546/2007 50 the value of the property as Rs.50,000/- in 1963 and allow a reasonable increase for the rise in price since 1963 to this date, taking into account the rise in price in the locality, and give the defendant the first option to retain the whole property on payment of 13/16 share of that valuation (including the increase) to the plaintiffs within a period of three months or such further period that may be granted by the Court of first instance.” In that case on the facts Their Lordships found that provisions of Section 2 and 3 do not apply. W.P.(C) 4546/2007 51 Following the views of Chief Justice Subba Rao in **A.I.R. 1958 Andhra Pradesh 647,** it was found that in cases not covered by Sections 2 and 3 of the Act power of the court to partition the property by any equitable method is not affected by the Act. The facts of that case reveal that defendant, to whom the property was directed to be allotted, was originally a monthly tenant occupying the premises and he later purchased 2/16 shares. Plaintiffs, the other shareholders filed the suit for partition. It was found that there was no request by any of the shareholders interested or collectively to the extent of one moiety or upwards for sale of the property and distribution of the sale proceeds and therefore Section 2 and 3 have no application. On the facts, it was found that plaintiffs have the wherewithal and unlimited resources compared to the defendant who was only a monthly tenant, who later purchased 2/16 fractional share. It is in such circumstance, Their Lordships found that method of auction of W.P.(C) 4546/2007 52 the property between the two parties in that case will not be a proper method. It cannot be said that Supreme Court has laid down a principle in **Badri Narain's Case(supra)** that where Section 2 and 3 of the Act do not apply, court has no power to auction the property in between the sharers. Court has the power to devise the just and proper method of division. As stated earlier, dehors of the Act court has the inherent power and duty to devise any equitable method for just and fair division of the properties between the shareholders. The fact that one sharer is occupying the building by itself is not sufficient reason to allot that property to him with a direction to pay owelty to the remaining sharers. May be, on the facts and circumstances of a particular case, that would be the most proper, just and fair mode of division. While devising the most equitable just and fair method, dehors of the provisions of the Act, Court is competent to direct allotment of the property to one sharer on a 53 ## W.P.(C) 4546/2007 valuation to be made by the court directing to pay the owelty amount to the remaining sharers. But it cannot be said that that is the only mode of fair, just and equitable division. 17. On this legal principle, it is to be seen whether learned Sub Judge was justified in directing auction of the property in between the sharers. Though learned senior counsel vehemently argued that defendants 5 to 8 together are only entitled to get 1/26 shares other sharers together could outbid them, as is clear from Ext.P1 to P3 orders of the learned Sub Judge, all the other sharers have joined together at the time of auction conducted by the court. But it cannot be said for that reason that other sharers could definitely outbid the petitioners. Learned senior counsel argued that petitioners who were residing in the property for more than 60 years have a sentimental value for the residential building where they have been uninterruptedly residing and if the property is to be sold in auction, though W.P.(C) 4546/2007 54 among the sharers, ultimately it would be sold to a stranger and as far as possible, it is to be avoided. Learned senior counsel also argued that though 5[th] defendant owned a building, that building was given to her daughter the 6[th] defendant and 7[th] defendant is not having any house of his own and in such circumstance, learned Sub Judge should have directed valuation of the property and allotted the entire property to defendants 5 to 8 with a direction to pay owelty to the other sharers. Learned senior counsel also argued that when 25 sharers joined together, they would definitely have unlimited resources to purchase the property and auction among them will not be just and therefore sale by auction among the sharers cannot be just, fair or equitable. 18. Learned counsel appearing for respondents argued that there was no case before the trial court or in the Writ Petition that respondents have unlimited resources or that they would outbid the petitioners. It was argued that in the absence of ## W.P.(C) 4546/2007 55 such a case argument advanced by the learned senior counsel has to be rejected. Learned counsel also argued that when petitioners sought reservation of the property in their favour before the trial court, it was resisted by the plaintiffs and other sharers stating that 5[th] defendant is owning a double storied residential building, which was disputed by defendants 5 to 8. It was pointed out that it is under such circumstance under Ext.P1 order learned Sub Judge on 4.12.2006 directed defendants 5 to 8 to produce the title deed in respect of that property to find out whether defendants 5 to 8 are owning and possessing a double storied residential building making it clear that on their failure to produce the same, property would be auctioned among the sharers as it is admitted case that it cannot be divided equally among the 26 sharers. Learned counsel pointed out that the said direction was given because of the insistance of defendants 5 to 8 to allot the property to them contending that they are 56 W.P.(C) 4546/2007 residing therein and have no other residential building. Learned counsel also argued that inspite of the direction, petitioners did not produce the title deed and on 16.12.2006 learned Sub Judge directed sale of the property and sale was conducted in open court on 10.1.2007. It is further pointed out that petitioners did not challenge Exts.P1 to P3 orders and instead participated in the auction and bid the property for Rs.49,50,000/- and only when the other sharers bid the property for Rs.50 lakhs, they had withdrawn from the auction and in such circumstance, petitioners cannot be heard to contend that they have no sufficient resources to participate in the bid or that respondents together could outbid the petitioners and therefore the principle adopted by the Apex Court in Badri Narain's case cannot be applied in this case. Learned counsel also submitted that pursuant to Ext.P3 order the other sharers have already deposited the amount in court and in such 57 ## W.P.(C) 4546/2007 circumstance, petitioners are not entitled to any discretionary relief invoking the powers under Article 227 of the Constitution of India. 19.The facts revealed from the proceedings of the court below and admitted by the parties establish that defendants 5 to 8 participated in the auction and bid the property upto Rs.49,50,000/-. In such circumstance, it cannot be said that compared to respondents, defendants 5 to 8 are not having sufficient financial resources. As pointed out by the learned counsel appearing for respondents, Writ Petition itself establish that 5[th] defendant is owning a double storied residential building, which according to her was given to her daughter the sixth defendant. Defendants 7 and 8 are working in Gulf countries. In such circumstance, there is no merit in the submission that petitioners have no financial resources to bid the property or that other sharers could outbid them and so the auction among the sharers is not just or fair. When defendants 5 to W.P.(C) 4546/2007 58 8 are having the financial resources and are also having a double storied residential building in Kozhikode, the same city, it cannot be said that in equity the property is to be allotted to them. On the facts and circumstances of the case, it cannot be said that exercise of discretion by the learned Sub Judge directing sale of the property among the sharers by auction is not an equitable or just or fair method of dividing the property. On the other hand, when auction is conducted among the sharers and that too when the sharers are having the necessary financial resources, property would definitely fetch the maximum price which will be beneficial to each of the shareholder. If the property is to be allotted exclusively to defendants 5 to 8 with a direction to pay the owelty to others, it would only benefit defendants 5 to 8 who have another convenient residential accommodation in the same City. It will only benefit one shareholder out of 26 shareholders. But if the property is to be auctioned among the W.P.(C) 4546/2007 59 sharers, it would definitely benefit all the 26 sharers. In such circumstance, learned Sub Judge was justified in directing sale of the property by auction among the sharers under Exts.P1 to P3 orders. Ext.P3 order shows that by such auction the property was sold for Rs.50 lakhs. Each sharer is entitled to get 1/26 share out of that amount. In such circumstance, I find no merit in the Writ Petition warranting interference. Writ Petition is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------W.P.(C).NO.4546 /07 --------------------- JUDGMENT 3RD JULY,2008