High Court of KeralaSingle Judge2018-06-06Disposed of as above.

Mathew v. Rajan

Case / Petition Number:OP(C) No.1047 of 2016, 3493 of 2017

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Sathish Ninan
Judgment Date: 2018-06-06
Court Decision / Holding: The court set aside Exts. P6 and P7 orders, allowing the defendant to file an affidavit proposing an upset price within one week. The Sub Court is directed to proceed with the auction afresh and complete it within one month. The original petition (OP(C) Nos.1047 of 2016 & 3493 of 2017) is disposed of accordingly.
Final Disposition: Disposed of as above.

Parties to the Case

Appellants / Petitioners

Mathew

Respondents

Rajan

Legal Representation & Advocates

Counsels for Petitioners

• Sri G. Sreekumar (Chelur)

Counsels for Respondents

• Sri Saiby Jose Kidangoor

Case Synopsis & Summary

Mathew, the petitioner, and Rajan, the respondent, are brothers and co-owners in a cinema theatre on 46 cents of land. The family business was run as a partnership among the brothers. One brother filed a suit for dissolution; eventually, a compromise led to the plaintiff (Rajаn) and the defendant (Mathew) acquiring half-shares. Rajan later filed O.S.1351/2010 for partition of a half-share. On 21 February 2014, the Sub Court, Thrissur, passed a preliminary decree partitioning the property into two equal shares and allotting one share to each party. Challenges by the defendant through RFA No.475 of 2014 were dismissed (29 January 2016). The defendant filed SLP No.12874 of 2016 before the Supreme Court, which is pending. Meanwhile, in the final decree FDIA No.973/2014, an Advocate Commissioner reported that physical division was not feasible, and the parties agreed that an in-specie division was not possible, so the only viable course was an auction among the sharers. Ext. P3 ordered filing affidavits regarding upset price; the plaintiff proposed Rs. 4.05 crores, while the defendant did not file any affidavit or upset-price. The court directed auction among the sharers; the defendant did not participate. The Court held that even without Partition Act, the court has inherent power to order sale. Exts. P6 and P7 were set aside, and the defendant was allowed to file an upset-price affidavit within one week. The trial court was directed to conduct a fresh auction and conclude within one month. The petition is disposed of accordingly.

Provisions of Law Cited

Partition Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicant-defendant contends that the partition cannot be summarily replaced by an auction among sharers without appropriate application of the Partition Act, and he asserts his rights as a half sharer should be protected. He did not file a timely affidavit proposing an upset price, and his counsel stated no such affidavit would be filed. He challenges the earlier auction orders (Exts P6 and P7) and submits that the court should have allowed a in-specie partition or provided procedural safeguards before sale. He relies on the principles that partition statutes guide, but asserts inherent power to order sale exists only within the constraints of due process.

Contentions of Respondents

The plaintiff-responden t contends that where in-specie partition is not feasible, sale is necessary to realize value for all sharers, particularly since there has been willful abstention by the defendant from participation in the auction. Both sides acknowledged that physical partition was not possible, and it was agreed that an auction among sharers would be the only viable remedy. The respondent argues that the court has sufficient inherent power to order sale when partition in kind is impracticable, and that ensuring maximum value justifies the sale mechanism.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Badri Narain Prasad Choudhary and Ors. v. Nil Ratan Sarkar	AIR 1978 SC 845	Positive	Cited as authority for the proposition that the court has inherent power to order sale even when Partition Act provisions are not applied.
Santhosh Kumar v. Indira Mohandas	2001(3) KLT 389	Mentioned Only	Listed among authorities; not explicitly discussed in the judgment for its ratio.
Sathi Lakshmanan	2008(4) KLT 401	Mentioned Only	Cited among authorities without explicit treatment in this decision.
Antony v. Joseph	2010(3) KLT 140	Mentioned Only	Cited among authorities; no direct discussion of its ratio in the judgment.

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Extracted Judgment Text

Exact text extracted from official judgment records.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:** **THE HONOURABLE MR. JUSTICE SATHISH NINAN WEDNESDAY, THE 6TH DAY OF JUNE 2018 / 16TH JYAISHTA, 1940 OP(C).No. 1047 of 2016** **OS.NO.884/2013 OF SUB COURT, CHAVAKKAD ----------** ## **PETITIONER:** **MATHEW, AGED 76, S/O.CHERUVATHUR THAVU, KUNNAMKULAM VILLAGE, TALAPPILLY TALUK,THRISSUR DISTRICT.** **BY ADV.SRI.G.SREEKUMAR (CHELUR)** ## **RESPONDENT :** **RAJAN, AGED 68, S/O.CHERUVATHUR THAVU, PRESENT ADDRESS B/5, NALUKETU, EDAPILLY THEKE VILLAGE VENNALA, CHAKARAPARAMBU DESOM,KANAYANNUR TALUK, ERNAKULAM DISTRICT-682 001.** **BY ADV. SRI.SAIBY JOSE KIDANGOOR** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 06-06-2018, ALONG WITH OP(C).NO.3493 OF 2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts 12/6/2018** **OP(C).No. 1047 of 2016 (O)** **APPENDIX** **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 A TRUE COPY OF THE ORDER PASSED IN I.A.NO.10935 OF 2010 IN O.S.1351 OF 2010 DATED 16.2.2012 ON THE FILE OF THE 1ST ADDITIONAL SUB COURT, THRISSUR** **EXHIBIT P2 A TRUE COPY OF THE JUDGMENT IN O.S.884 OF 2013 DATED 21.2.2014 ON THE FILE OF THE SUB COURT, CHAVAKKAD EXHIBIT P3 A TRUE COPY OF THE ORDER PASSED IN I.A.NO.973 OF 2014 IN O.S.NO.884 OF 2013 DATED 29.3.2016.** ## **RESPONDENT'S EXHIBITS: NIL** **/TRUE COPY/** **P.A.TO JUDGE** **sts 12/6/2018** ## **Sathish Ninan, J.** ## **========================== O.P(C) Nos.1047 of 2016 & 3493 of 2017 ============================= Dated this the 6[th] day of June, 2018** ## **JUDGMENT** The petitioner-defendant and the respondentplaintiff are brothers. The defendant challenges the auction conducted in court in a final decree proceedings in a suit for partition. 2. The subject matter of the litigation is 46 cents of land with a cinema theatre thereon which practically covers the whole extent. The petitioner and respondent had yet two other brothers. The business of the theatre was run jointly by all the brothers under a partnership. One of the brothers filed a suit as O.S No.1532 of 1992 before the Sub Court, Thrissur seeking dissolution of ## **O.P(C) No.1047 of 2016 & 3493 of 2017** -: 2 :- firm. Ultimately, in R.S.A. No. 754 of 2003 arising therefrom, the parties entered into a compromise whereunder the rights over the property became vested with the plaintiff and the defendant herein. It appears that thereafter the business continued. Later, the respondent herein as plaintiff filed the suit O.S 1351/2010 for partition of one half share over the property in question. On 21.02.2014 a preliminary decree for partition was passed directing that the property be divided into two equal shares and allotting one share each to the plaintiff and defendant. Challenging the decree the defendant filed RFA No.475 of 2014 before this Court. The same was dismissed as per judgment dated 20.01.2016. Challenging the same the defendant has filed SLP No. 12874 of 2016 before the Apex Court and the same is stated to be pending. In the meanwhile the plaintiff filed final decree application as FDIA No. 973 of 2014. An Advocate Commissioner was deputed in the final decree ## **O.P(C) No.1047 of 2016 & 3493 of 2017** -: 3 :- proceedings who reported that division of the property into two segments is not possible. As revealed from Ext P3 order dated 29.03.2016 of the learned Sub Court, Chavakkad, either parties agreed in court that in-specie division of the property is not possible and that the only course open is to conduct auction among the sharers. It is recorded in Ext P3 order that both sides submitted that they have no objection in conducting auction. Either of the parties did not invoke the provisions of the Partition Act. The trial court was convinced that physical partition is not possible. Accordingly the court below ordered auction among the sharers. The parties were directed to file an affidavit regarding the upset price to be fixed for conducting the auction. As revealed from Ext P6 order of the learned Sub Judge dated 19.10.2017 the plaintiff filed an affidavit showing the upset price at `4,05,00,000/-. However, the defendant did not file any affidavit nor did suggest any upset price. The order ## **O.P(C) No.1047 of 2016 & 3493 of 2017** -: 4 :- reveals that the counsel for the defendant submitted that he is not filing any affidavit. Accordingly, as per Ext P6 order the court directed auction among the parties. As revealed from Ext P7 order dated 2.11.2017 the defendant or his counsel did not participate in the auction. The sale was conducted and was confirmed in favour of the plaintiff at the upset price fixed. Thereupon O.P No.3493 of 2017 is filed by the defendant challenging the auction. O.P No.1047 of 2016 was filed challenging Ext P3 order dated 29.03.2016 whereby the parties were directed to file affidavit proposing the upset price to be fixed for auction. 3. Apparently the defendant has not participated in the auction. There is no order of stay of the proceedings from the Apex Court. Though it appears that there had been willful abstinence by the defendant from the auction proceedings, considering the fact that he is the half sharer of the entire property and in order that ## **O.P(C) No.1047 of 2016 & 3493 of 2017** -: 5 :- the property may fetch the maximum value, it is only just that the petitioner-defendant also be given an opportunity to participate in the auction. Though grounds have been urged to the effect that dehors the provisions of the Partition Act, there could not be a direction for sale, the learned counsel did not venture to canvass that. In the decisions of **Badri Narain Prasad Choudhary and Ors. V Nil Ratan Sarkar (AIR 1978 SC 845), Santhosh Kumar v Indira Mohandas (2001(3) KLT 389), Sathi Lakshmanan(2008(4) KLT 401), Antony v Joseph (2010(3) KLT 140)** it has been held that even in cases where the provisions of the Partition Act is not applied, the court has inherent power to make an order for sale. 4. In the circumstances, I set aside Exts P6 and P7 orders. The defendant is given an opportunity to file affidavit proposing the upset price. The affidavit as stated shall be filed within a period of one week from the date of receipt of a copy of this judgment. ## **O.P(C) No.1047 of 2016 & 3493 of 2017** -: 6 :- Thereafter the court below shall continue with the proceedings for auction afresh and culminate the same within a period of one month thereafter. The original petition is disposed of as above. Sd/- **Sathish Ninan, Judge.** vdv