Andhra HC (Pre-Telangana)
Kancherla Ram Mohan vs Mogal Ahmed Baig on 5 August, 1997
Equivalent citations: 1997(5)ALT85
Author: R. Bayapu Reddy
Bench: R. Bayapu Reddy
JUDGMENT R. Bayapu Reddy, J.
1. This revision is filed questioning the orders of the Principal District Munsif, Cuddapah dated 12-3-1996 passed in E.A. 404/95 in E.P. 61/93 in O.S. No. 249/90 dismissing the said petition filed by the judgment-debtor No. 1, who is the present petitioner.
2. The respondent herein had obtained a preliminary decree for partition and separate possession of his 2/3rd share in the suit house and after passing of the ex parte decree on 5-6-91, he filed a petition in LA. 905/92 for passing of final decree. In the said final decree proceedings, an Advocate Commissioner was appointed for effecting division of the suit house for which the respondent herein, who is the decreeholder, is entitled to 2/3rd share while the petitioner herein, who is the first defendant in the suit, is entitled for the remaining 1/3rd share. The Advocate Commissioner visited the suit house and effected partition of the house into three shares and allotted 2/3rd share to the respondent herein and the remaining 1/3rd share to the present petitioner and filed his report along with the plan into Court. The lower Court thereupon passed the final decree allotting 2/3rd share in the house to the respondent and the remaining 1/3rd share to the petitioner herein as per the partition effected by the Advocate-Commissioner. Thereupon, the respondent filed E.P. 61/93 for delivery of possession of the 2/3rd share in the house allotted to him in the final decree proceedings. When the Amin went to effect such delivery, the petitioner raised an objection before him for delivering possession of the 2/3rd share in the house to the respondent on the ground that the decree is inexecutable. The Amin did not, therefore, execute the warrant of delivery entrusted to him. The judgment-debtor No. 1, then approached the Court and filed E.A. 404/95 Under Section 47 and Section 151 C.P.C, contending that there are permanent structures like Haveli (House), bath-room and also water tap in the suit site; that the Commissioner had no right to effect partition of such properties which are not the subject matter of the decree; that the decree passed in the suit is inexecutable and as such the E.P. is liable to be dismissed. After hearing both sides and in view of the material available on record, the learned District Munsif rejected the contention of the petitioner and dismissed the petition observing that the property as described in the suit and which is the subject matter of the decree is capable of partition and can be executed and as such, the petition is not maintainable. Aggrieved by such orders, the judgment debtor No. 1, who is the present petitioner, has filed the present revision.
3. Heard both the counsel.
4. It is seen from a perusal of the description of the decree schedule that the said property is said to consist of a site measuring 60' North to South and 15' East to West along with a dilapidated house in that site. When the Advocate-Commissioner visited the house in the final decree proceedings for effecting partition, there was a Haveli existing in that site along with a water tap and a bath-room. The Advocate-Commissioner effected division of the property into three shares and allotted the portion marked as "AEGHFD" including the bath-room portion marked as "KIMD" in the plan, to the respondent-decree holder and the remaining portion shown as "CBGH" to the petitioner herein towards his 1/3rd share. The contention of the petitioner herein is that the Haveli existing in the suit house (sic. site) is a very small one and the entire site itself is measuring only 15' East to West and 60' North to South and that if such Haveli is divided into three portions and one portion is allotted to the petitioner towards his 1/3rd share, it will not be suitable and convenient for him to stay and enjoy such house and that, therefore, the lower Court ought not to have divided the property into three shares and allotted the portions to the respective shares of the parties and that on the other hand, it ought to have conducted sale of the house and divided the properties in the interests of both parties. It is seen from a perusal of the impugned orders of the lower Court that the learned District Munsif dismissed the petition mainly on two grounds, viz., that the petitioner did not raise any objection for the division of die property even during the final decree proceedings when the Advocate-Commissioner actually visited the place and when the final decree was subsequently passed; that he is not bona fide in raising such dispute at the time of delivery of property in the execution proceedings and that the petition filed by him is, therefore, liable to be dismissed. But simply on account of the fact that the petitioner did not choose to raise such objection till the execution proceedings were launched, his petition containing such objection raised during the course of execution proceedings, cannot be dismissed. In the decision of the Supreme Court reported in Chantesher Ghosh v. Madan Mohan Ghosh, it is clearly observed by Their Lordships that such an objection regarding the viability of the property for division can be raised even in execution proceedings even though such objection was not raised during the final decree proceedings. Therefore, the contention of the petitioner cannot be rejected on such ground and the lower Court has erred in dismissing the petition on such ground.
5. The lower Court has also chosen to dismiss the petition filed by the petitioner on the ground that the Advocate-Commissioner, who visited the suit site, did not make any observation that the property is incapable of partition and that on the other hand, he divided the property into three shares and allotted 2/3rd share to the respondent and the remaining 1/3rd share to the petitioner and that in view of such circumstances, it cannot be said that the decree is incapable of execution nor can it be said that the property is not suitable for partition. It is no doubt true that the Advocate-Commissioner chose to divide the property into three shares and allot 2/3rd share to the respondent and the remaining 1/3rd share to the petitioner and prepared the plan showing such separate allotments. But it is to be seen that the entire suit site consists only of an extent of 60' north-south and 15' East-West and a Haveli. along with one bath-room water tap etc., are situated in the said site. It is also an admitted fact that the main door of the house is facing towards south. If it is to be partitioned North to South, an extent of 5' East to West and 60' North to South will fall towards the share of the petitioner and if a partition wall is to be constructed between the two portions, the extent will be further reduced. Such a small extent containing a strip of land measuring about 4 1/2' East to West, will not be suitable or convenient for living purpose. If the property is to be divided East to West into three shares, as appears to have been done by the Advocate-Commissioner, the existing door of the house will have to be closed and even then it will be only an extent of 15' x 20' that will fall to the share of the petitioner. Under such circumstances, it cannot be said that the partition of the house will be convenient and suitable for the parties to the suit. Therefore, it will be just and proper that the decree schedule property shall be put to sale by the Court and the sale proceeds are to be divided between the parties as per their respective shares instead of effecting partition of the property as directed by the lower Court, which will not be suitable or convenient for the parties in view of the nature and extent of the property.
6. It is no doubt true that such a plea was not put forward by the petitioner before the lower Court seeking sale of the decree schedule property in Court auction and for division of the proceeds on the ground that the property is not capable of partition and separate possession. But partition is a 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. The joint property is divided in specie and each one o*f the erstwhile joint owners is put in possession of specific extent of property which is allotted to his share. But many contingencies may be visualised when in practice the division by metes and bounds of every item of joint family property is not possible. In dividing the properties among various co-owners it may not always be possible to divide every item into distinct shares. When the property to be divided consists of only one item as in the present case and such property cannot conveniently and equitably be divided between the members, 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. When such course of allotment of the property is also not possible to be adopted, the Court can direct outright sale of the property and divide the sale proceeds between the joint owners. Such courses can be adopted by the Court 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. The provisions of Partition Act do not in any way entrench upon the undoubted power of the Court to effectuate a partition between co-owners in one or other of the methods suggested above. The Partition Act, which was intended to protect the smaller sharers in the family should not be so read as to obstruct and retard the process of the partition itself. The partition Act is not inconsistent with the general power of the Court to sell any item of the property for its equitable distribution. Such view was also held by this Court in the earlier Division Bench decision reported in Ramaprasada Rao v. Subbaramaiah, 1957 ALT 587 = AIR 1958 A.P. 647 (D.B.). In the present case also, as it is felt that the suit property is not suitable and convenient for equitable division between the parties as per the final decree, it is just and proper that the said property shall be sold in Court auction and the proceeds of such sale shall be divided between the parties entitled for such share in the property. It is made clear that such sale to be conducted by the lower Court shall be open to all and the parties to the suit are also at liberty to participate in such sale. The higher bidder will be entitled for the house and the sale proceeds shall be divided between the parties to the suit as per their shares in the property.
7. In the result, the revision is allowed but without costs, and the impugned orders of the lower Court directing partition of the property are set aside subject to the observations made in this judgment.