Kerala High Court
Against Order Dated 4.10.2019 In ... vs 3427/208 on 7 October, 2020
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
WEDNESDAY, THE 07TH DAY OF OCTOBER 2020 / 15TH ASWINA, 1942
OP(C).No.3072 OF 2019
AGAINST ORDER DATED 4.10.2019 IN IA.A.NO.3555/18, ORDER DATED
4.10.2019 IN I.A.NO.3427/2008, ORDER DATED 12.10.2018 IN IA
NO.936/2017 & I.A.NO.2964/2018 AND ORDER DATED 24.5.2013 IN
I.A.NO.499/2019 IN FDA NO.3427/2008 IN O.A.NO.488/2001 OF
MUNSIFF'S COURT, MUVATTUPUZHA PRESENTLY MADE OVER TO MUNSIFF'S
COURT, KOTHAMANGALAM WHEREIN THE FINAL DECREE APPLICATION IS
RENUMBERED AS I.A. 2919/2019
PETITIONER/PETITIONER IN I.A.3555/2018, 2nd RESPONDENT IN IA.
3427/208, 2nd RESPONDENT IN I.A. 936/2017, PETITIONER IN I.A.
2964/2018, PETITIONER IN I.A. 499/2009/2nd DEFENDANT:
T.P.JOSEPH, AGED 86 YEARS, S/O LATE PAILY,
THEKKEKARA, HOUSE, RAMALLOOR, KOTHAMANGALAM,
ERNAKULAM DISTRICT PIN- 686 691.
BY ADVS. SRI.THOMAS M.JACOB
SMT.DEEPA NARAYANAN
SRI.AKHIL K.MADHAV
SRI.V.PRASANTH
RESPONDENTS/RESPONDENTS 1 & 4 IN I.A. 3555/2018, PETITIONER IN
I.A. 3427/2008, PETITIONER IN I.A. 936/2017, RESPONDENT IN I.A.
2964/2018, RESPONDENT IN I.A. 499/2009/PLAINTIFF & ADDITIONAL 4th
DEFENDANT AND SUPPLEMENTARY DECREE HOLDER:
1 RONALD T.DENNISON, AGED ABOUT 45 YEARS,
S/O THOMAS, RESIDING AT CHIRAMBATTU HOUSE,
AZAD ROAD, KALOOR, ERNAKULAM, PIN- 682 017,
REP. BY POWER OF ATTORNEY HOLDER VIJI P.ISSAC,
AGED ABOUT 53 YEARS, PONNAL HOUSE, OORAMANA,
MEMMURY, MUVATTUPUZHA, PIN- 686 663, NOW AT CHOICE
VILLAGE, THRIPUNITHURA, ERNAKULAM PIN- 682 034.
2 T.P KURIAKOSE, S/O LATE PAILY, AGED ABOUT
72 YEARS, THEKKEKARA HOUSE, NELLIKUZHI P.O,
KOTHAMANGALAM PIN- 686 691.
OP(C) 3072 & 3280/19 2
3 RAJAN MATHEW, AGED ABOUT 53 YEARS,S/O T.P MATHEW,
THEKKEKARA HOUSE, NADUKANI P.O, KEERAMPARA VILLAGE,
KOTHAMANGALAM PIN- 686 691 REPRESENTED BY POWER OF
ATTORNEY HOLDER SHAJAN MATHEW, AGED ABOUT 52 YEARS,
S/O T.P MATHEW, THEKKEKERA HOUSE, NADUKANI P.O,
KEERAMPARA VILLAGE, KOTHAMANGALAM PIN- 686 691.
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 24-09-2020
ALONG WITH OP(C).3280/2019, THE COURT ON 07-10-2020 DELIVERED
THE FOLLOWING:
OP(C) 3072 & 3280/19 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
WEDNESDAY, THE 07TH DAY OF OCTOBER 2020 / 15TH ASWINA, 1942
OP(C).No.3280 OF 2019
FDA-3427/08 IN OS 488/01 OF THE MUNSIFF COURT, MUVATTUPUZHA,
TRANSFERRED TO KOTHAMANGALAM MUNSIFF COURT AND RE-NUMBERED AS
FDA 29/2019
PETITIONER/RESPONDENT-1/PLAINTIFF:
RONALD T. DENNISON, S/O THOMAS, CHIRAMBOTTU
HOUSE, AZAD ROAD, KALOOR, ERNAKULAM,, REP.
BY POWER OF ATTORNEY HOLDER, MR. VIJI P. ISSAC,
S/O ISSAC, PONNAL HOUSE, OORAMANA KARA, MEMMURY
VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT,
PIN - 686 730.
BY RONALD T. DENNISON,(PARTY IN PERSON)
RESPONDENT/RESPONDENT-2/DEFENDANT-2:
JOSEPH, S/O LATE PAILY, THEKKEKKARA HOUSE,
RAMALLOOR KARA, KOTHAMANGALAM VILLAGE,
KOTHAMANGALAM TALUK, ERNAKULAM DISRICT,
PIN - 686 691.
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 24-09-2020,
ALONG WITH OP(C).3072/2019, THE COURT ON 07-10-2020 DELIVERED
THE FOLLOWING:
OP(C) 3072 & 3280/19 4
JUDGMENT
[ OP(C).3072/2019, OP(C).3280/2019 ] Dated this the 7th day of October 2020 Set forth for jural consideration in these Original Petitions is when and in what circumstances can a court, call upon to issue final decree in a suit for partition, order sale of the properties involved therein and distribution of its proceeds, deviating from the default method of effecting its partition by metes and bounds, particularly when the preliminary decree orders such.
2. This issue has come up for examination of this Court because one of the co-owners of the property sought to be partitioned has challenged the various orders of the Trial Court, as per which, a preliminary decree ordering partition of the plaint schedule property was, in fact, directed to be sold by auction among its sharers.
3. To obtain a hang of the controversy between the parties, the facts involved will certainly need close assessment; but before doing so, I deem it imperative to purvey the applicable law relating to partition of immovable properties.
OP(C) 3072 & 3280/19 5
4. The Hon'ble Supreme Court, in Shub Karan Bubna Alias Shub Karan Prasad Bubna v. Sita Saran Bubna and Others ((2009) 9 SCC 689), has very lucidly explained the concept of partition in paragraphs 4 and 5 of it, which needs to be read and is, therefore, reproduced under:
"4. 'Partition' is a re-distribution or adjustment of pre-existing rights, among co-owners/coparceners, resulting in a division of lands or other properties jointly held by them, into different lots or portions and delivery thereof to the respective allottees. The effect of such division is that the joint ownership is terminated and the respective shares vest in them in severalty. A partition of a property can be only among those having a share or interest in it. A person who does not have a share in such property cannot obviously be a party to a partition. 'Separation of share' is a species of 'partition'. When all co- owners get separated, it is a partition. Separation of share/s refers to a division where only one or only a few among several co- owners/coparceners get separated, and others continue to be joint or continue to hold the remaining property jointly without division by metes and bounds. For example, where four brothers owning a property divide it among themselves by metes and bounds, it is a partition. But if only one brother wants to get his share separated and other three brothers continue to remain joint, there is only a separation of the share of one brother. In a suit for partition or separation of a share, the prayer is not only for declaration of plaintiff's share in the suit properties, but also division of his share by metes and bounds. This involves three issues: (i) whether the person seeking division has a share or interest in the suit property/properties; (ii) whether he is entitled to the relief of division and separate possession; and (iii) how and in what manner, the property/ properties should be divided by metes and bounds?
5. In a suit is for partition or separation of a share, the court at the first stage decides whether the plaintiff has a share in the suit property and whether he is entitled to division and separate possession. The decision on these two issues is exercise of a judicial function and results in first stage decision termed as 'decree' under Order 20 Rule 18(1) and termed as 'preliminary decree' under Order 20 Rule 18(2) of the Code. The consequential division by metes and OP(C) 3072 & 3280/19 6 bounds, considered to be a ministerial or administrative act requiring the physical inspection, measurements, calculations and considering various permutations/ combinations/alternatives of division is referred to the Collector under Rule 18(1) and is the subject matter of the final decree under Rule 18(2). The question is whether the provisions of Limitation Act are inapplicable to an application for drawing up a final decree."
5. The above judgment, of course, is not the first to speak on the afore lines, but is among the more recent ones and it is incontestable therefrom that the normal mode of partition of immovable properties is dividing it by metes and bounds, thus allotting it to the sharers as per their shares determined in the preliminary decree.
6. However, there arises various instances when the preliminary decreed properties are incapable of division by metes and bounds - either because of its indivisible nature; or there are large number of shareholders; or such division will cause more harm than good to the shareholders; or for any other compelling and special reasons - and in such scenario, the axiomatic question arises if courts can adopt any other modes to effect partition.
7. As is well known, the Partition Act, 1893 ('Partition Act' for short) provides for courts in such case to direct sale of the property/s OP(C) 3072 & 3280/19 7 and distribution of the proceeds among the shareholders. However, as is manifest from Section 2 thereof, this is possible only if one or more shareholders, interested in the property - either individually or collectively - to the extent of one moiety or upwards, seek its sale and distribution of the proceeds. Of course, if such an application is made, then Section 3 of the said Act allows the other shareholder/ shareholders to apply for leave from court to buy the share or shares of the party or parties asking for the sale, at a valuation to be fixed by it.
8. A question then arose that, if no application is made by any shareholder, but the court finds that the partition of the property by metes and bounds cannot be reasonably or conveniently made or if it is otherwise impossible, would it still be justified in ordering a sale.
9. This query was considered by the Hon'ble Supreme Court in Badri Narain Prasad Choudhary and others v. Nil Ratan Sarkar (AIR 1978 SC 845) and answered as below:
"19. Thus considered, it is clear that the provisions of Sections 2 and 3 of the Partition Act are not applicable to the peculiar circumstances of the case. At the same time, there is a concurrent finding of fact recorded by the courts below that the suit property is so small, that it cannot be conveniently and reasonably partitioned by metes and bounds, without destroying its intrinsic worth. This finding OP(C) 3072 & 3280/19 8 is unassailable. In our opinion in such a situation, the Court can devise such other feasible mode for effecting partition as may appear to it to be just and equitable in the circumstances of the case.
20. The suit property, being incapable of division in specie, there is no alternative but to resort to the process called Owelty, 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 A.I.R. 1958 Andhra Pradesh 647), in cases not covered by Sections 2 and 3 of the Partition Act, the power of the Court to partition property by any equitable method is not affected by the said Act."
10. A learned Single Judge of this Court, in the year 1983, followed Badri Narain Prasad Choudhary (supra) and answered the same issue in paragraph 2 of the judgment in Anthony Ammal v. Antony (1983 KLT 645) as under:
"As per Section 2 of the Partition Act, 1893, a sale of the properties involved in a partition suit and distribution of the sale proceeds among the sharers can be made only on the request of a shareholder individually interested or of shareholders collectively interested in one moiely or upwards of the properties involved. But, it cannot be said that the Court has no power to direct the sale of the property involved in a suit for partition and the distribution of the sale proceeds among the sharers even if the above condition insisted by Section 2 of the Partition Act is not satisfied. What the Court has to 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. In this case, even though the application for final decree has been made by the 5th defendant- respondent, who has only less than a moiety, it cannot be said that the Court was in the wrong in accepting the report of the Commissioner to sell the property by auction among the sharers."OP(C) 3072 & 3280/19 9
11. The same view continued thereafter and remains undisturbed, persuading another learned Single Judge of this Court to deliver judgment in Antony v. Joseph (2010 (3) KLT 140) in a similar factual background, opining as under:
"Partition Act, 1893 (Act 4 of 1893) is an act to amend the law relating to partition. S.2 provides that whenever it appears to the Court that by reason of the nature of the property or of the number of share holders 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 share holders, the court may direct sale of the property and distribution of the proceeds. S.2 indicates that the power of sale can be resorted to if a request is made by 'any such share holders interested individually or collectively to the extent of one moiety or upwards'. A sale under S.2 of the Act is a public sale. S.3 provides for the procedure when a share holder applies for leave to buy after the request is made under S.2 to direct a sale. Even when no application is made by the parties under S.2 of the Act, if the Court comes to the conclusion that a reasonable and equitable method should be adopted for dividing the property among the sharers, the court may device such other feasible mode for effecting partition as may appear to be just and equitable."
12. The afore judgments were reiteratingly followed by this Court in Ruby v. Raju (2017 (4) KLT 351) and declared that ' for a just and equitable partition, the court can direct the property to be sold among the sharers'.
13. The accepted legal scenario is thus unmistakable that the normal jurisdictional province of a court is to divide the property by OP(C) 3072 & 3280/19 10 metes and bounds and allot it to the shareholders as per their entitlement declared in the preliminary decree. However, when this course is found by the court to be either impracticable; or not reasonably possible; or not convenient; or inequitable; or likely to cause harm to sharers than good, it can - rather must - device and adopt other feasible methods/modes to effect a just and equitable partition.
14. With the afore in mind, I will now detail the facts presented.
15. The property involved and which is sought to be partitioned, is, as per the plaint averments, 12.955 cents (5.26 Ares) of Kothamangalam Village, on which there situates a two storied building having various rooms, bearing Door Nos.XIV/991, 992, 993, 994, 995 and 996 (hereinafter referred as 'the property' for convenience).
16. The property, admittedly, was originally owned by a certain Sri.Paily, who had allotted shares in the following manner to his children:
OP(C) 3072 & 3280/19 11
(a) Sri.T.P.Varghese - 1/5 share
(b) Sri.T.P.Joseph - 2/5 share
(c) Sri.T.P.Mathew - 1/5 share
(d) Sri.T.P.Kuriakose - 1/5 share
17. The uncontested facts reveal that the share of
Sri.T.P.Varghese was subsequently purchased by Sri.T.P.Joseph, his share thus being augmented to 2/5; while the share of Sri.T.P.Kuriakose was purchased for value by an outsider, Sri.Ronald T.Dennison. As regards Sri.T.P.Mathew, his share was conveyed to the son Sri.Rajan Mathew, the third respondent in O.P.(C)No.3072/2019.
18. After he purchased the share, Sri.Ronald T.Dennison filed O.S.No.488/2001 before the Sub Court, Muvattupuzha, arraying the aforementioned Sri.T.P.Varghese, Sri.T.P.Joseph, Sri.T.P.Mathew and Sri.T.P.Kuriakose as defendants 1 to 4 seeking partition of the plaint schedule property.
19. This suit was tried by the learned Sub Court and a preliminary decree, a copy of which is produced along with O.P.(C) No.3072/2019 as Exhibit P1, was issued in the manner as under: OP(C) 3072 & 3280/19 12
"1. Plaint schedule property is ordered to be partitioned by metes and bounds.
2. Plaintiff is entitled for 1/5 share over the plaint schedule property.
3. Plaintiff is entitled for share of profits from 3.6.2000 till 23.10.2001.
4. Quantum of shares of profits will be decided in the final decree proceedings.
5. Counter claim stands Dismissed.
6. No costs."
20. Subsequently, Sri.Rajan Mathew, being the son and assignee of the share from his father, Sri.T.P.Mathew, applied for a supplemental preliminary decree in his favour, which was allowed by the court on 18.09.2019 in I.A.No.29/2019.
21. There is no controversy between the parties till the stage of preliminary decree. It arose only at the final decree stage, when the Trial Court issued certain orders directing sale of the property among the sharers and distribution of its proceeds.
22. Sri.T.P.Mathew assails these orders of the Trial Court through O.P.(C)No.3072/2019; while Sri.Ronald T.Dennison, represented by his Power of Attorney Sri.Viji P.Issac, has filed O.P.(C) No.3280/2019 seeking that the Trial Court be directed to ' expedite the post sale proceedings and to issue him the Sale Certificate with OP(C) 3072 & 3280/19 13 respect to the properties', within a time frame to be fixed by this Court.
23. Since the orders of the Trial Court, directing sale of the properties, are assailed in O.P.(C)No.3072/2019 and since O.P.(C)No. 3280/2019 has been filed only seeking post sale proceedings to be expedited, it is ineluctable that the former is to be decided first, because the fate of the latter would only be consequential.
24. I, therefore, proceed to do thus; and for the sake of convenience, the parties will hereinafter be referred either as per their rank in the suit or by their names; and the documents, as they are marked in O.P.(C)No.3072/2019.
25. The further factual factors to obtain my attention for the purpose of these cases have its genesis in the application for final decree filed by Sri.Ronald T.Dennison. This application was numbered as I.A.No.3427/2008 by the Sub Court, Muvattupuzha (the 'Final Decree Application' for short).
26. Along with the Final Decree Application, Sri.Ronald T.Dennison filed I.A.No.3428/2008, seeking appointment of an Advocate Commissioner to divide the property by metes and bounds. OP(C) 3072 & 3280/19 14
27. The learned Advocate Commissioner inspected the property and filed a report dated 20.01.2009, copy of which is marked as Exhibit P2, stating as under:
"The petition schedule property have a total extent of 17.100 cents. The property have a road frontage of 17.7 meters. In order to divide the property into metes and bounds each sharer should give a portion having an extent of 3.420 cents including the share of odd portion with an average road frontage of 3.34 meters. The rooms in the building in the petition schedule property are with difference measurements. Further the entrance to the upstairs is on the eastern side of the building. Hence, division and allocation of 3.420 cents of property by metes and bounds is not possible without demolishing the buildings in the petition schedule property. Division of the petition schedule property is not practically possible without demolishing the building in the property. However, a supplementary plan is prepared showing the division and how it cut the existing buildings. The supplementary plan dividing the property into 5 parts with different colours as A, B, C, D and E is attached herewith the survey plan."
28. Since the learned Advocate Commissioner reported as afore, division of the property is not practically possible without demolishing the building thereon, Sri.Ronald T.Dennison filed I.A.No. 476/2009 seeking 'sale of the building' and for appointment of an Advocate Commissioner for such purpose. This application is marked as Exhibit P3 in the Original Petition.
29. Being alerted of this move by Sri.Ronald T.Dennison, Sri.T.P.Joseph, approached the court with I.A.No.499/2009, copy of OP(C) 3072 & 3280/19 15 which is shown as Exhibit P4, praying that he be allowed to buy off the share of Sri.Ronald T.Dennison at a valuation to be fixed by the court. He specifically pleaded that ' For the reasons stated in the accompanying affidavit, it is humbly prayed that this Honourable Court may be pleased to grant me leave to buy the plaintiff's share (sic)'. This application is seen to have been filed by Sri.T.P.Joseph under Section 3 of the Partition Act.
30. While these applications were pending, Sri.Ronald T.Dennison filed I.A.No.1455/2009, namely Exhibit P5, to remit Exhibit P2 report to the same learned Advocate Commissioner, praying that he be directed to ascertain the value of the decree schedule property for the purpose of passing a 'Final Decree', based on certain title deeds of comparable properties of the locality, which he had produced as Exhibits A1, A2 and A3 along with it. It appears that he had also filed I.A.No.1454/2009 to appoint an expert valuer to value the building.
31. The court allowed Exhibit P5 application of Sri.Ronald T.Dennison, but without issuing orders on I.A.No.1454/2009, which led the learned Advocate Commissioner to file his second report, OP(C) 3072 & 3280/19 16 namely Exhibit P6, showing the value of each share in the property to be Rs.23,79,923.60, which was based on the documents presented by Sri.Ronald T.Dennison.
32. At this stage, it transpires that Sri.T.P.Joseph filed I.A.No. 172/2010 seeking that Exhibit P6 report be again remitted to the learned Advocate Commissioner, since the documents of comparable properties produced by him had not been taken note of in the said report. This application has not been produced.
33. The records show that, subsequently, the court took up I.A. No.1454/2009 filed by Sri.Ronald T.Dennison to appoint an expert valuer along with I.A.No.17/2010 filed by Sri.T.P.Joseph and remitted Exhibit P6 report to the learned Advocate Commissioner, appointing a retired Assistant Executive Engineer to value the building. The copy of this order is available as Exhibit P7, which, pertinently records that the earlier application filed by Sri.Ronald T.Dennison to sell the building alone, namely Exhibit P3, has been withdrawn by him.
34. The learned Advocate Commissioner, thus filed a third report dated 15.03.2015, which is appended to O.P.(C)No.3072/2019 as Exhibit P9, showing the value of each share as being OP(C) 3072 & 3280/19 17 Rs.15,97,738/-, taking both the land and the building to account, along with mesne profits.
35. Subsequent to this, the court took up Exhibit P3 application of Sri.T.P.Joseph, filed earlier under Section 3 of the Partition Act seeking leave to buy the share of Sri.Ronald T.Dennison, and dismissed it as being premature, holding it to be so because no shareholder had moved an application for sale under Section 2 of the said Act. This order is Exhibit P8, which is also one of the orders impugned in O.P.(C)No.3072/2019.
36. It is at this time that the real and proximate causes for the controversy, pleaded in the Original Petitions, began.
37. Sri.Ronald T.Dennison now filed a new application, stating it to be under Section 3(1)(2) of the Partition Act and Section 151 of the Code of Civil Procedure, seeking that the property be sold in an auction between himself and Sri.T.P.Joseph. The prayer in this application, copy of which is Exhibit P10, is crucial and therefore, extracted under:
"For the reasons stated in the accompanying affidavit it is humbly prayed that this Hon'ble Court may be pleased to order auction the decree schedule property, among petitioner and 2 nd OP(C) 3072 & 3280/19 18 respondent/defendant and to fix the same to the highest bidder, in accordance with law."
38. Sri.T.P.Joseph objected to this application by filing his response, which is produced as Exhibit P11 and sought its dismissal asserting that it is not maintainable and alleging that Sri.Ronald T.Dennison is acting with the sole intention of delaying the final decree proceedings. Interestingly, along with his afore objection, Sri.T.P.Joseph filed I.A.No.2964/2018, also under Section 3 of the Partition Act, again seeking leave to buy the share of Sri.Ronald T.Dennison, based on the valuation made by the learned Advocate Commissioner in the third report, namely Exhibit P9.
39. Thereupon, the court issued a common order in Exhibit P10 application of Sri.Ronald T.Dennison and Exhibit P12 application of Sri.T.P.Joseph, after framing a sold issue, namely, ' what is the fair value of the preliminary decree schedule property for the purpose of Section 2 of the Act' (sic). This order has been produced as Exhibit P13 and challenged as being illegal, since through it, the court allowed auction between Sri.Ronald T.Dennison and Sri.T.P.Joseph, to be held on 27.10.2018 at the 'Court Campus' and to be conducted by the Amin, fixing the value of each share to be Rs.23,96,280/-; further OP(C) 3072 & 3280/19 19 stating that bidding shall be conducted ' as per Section 3(2) of the Act'.
40. Sri.T.P.Joseph, however, went on to file Exhibit P14 petition, praying that Exhibit P13 order be reviewed, on the ground that his share has been incorrectly shown to be 4/5, though it is only 3/5; and further, that Exhibit P10 application, filed by Sri.Ronald T.Dennison under Section 3 of the Partition Act, could not have been decided without adverting to his objection to it, namely Exhibit P11. He also contended that the proceedings before the court until then was 'for arriving at a just price in view of I.A.499/2009 expressing desire to buy the share of the petitioner' (Sri.Ronald T.Dennison) (sic) and that once I.A.No.2964/208 had been allowed, ' there is no scope for placing the schedule property in auction' (sic).
41. The court then heard Exhibit P14 petition and issued Exhibit P15 order on 04.10.2019, allowing it in part, correcting the share of Sri.T.P.Joseph as 3/5 and then clarifying that Exhibit P13 order was, in fact, issued under Rule 234 of the Civil Rules of Practice and not under Section 3 of the Partition Act, recording this to be an error apparent on it, justifying its review to such extent. OP(C) 3072 & 3280/19 20
42. As a consequential order, the court then issued Exhibit P16 on the same day as Exhibit P15, in the Final Decree Application filed by Sri.Ronald T.Dennison, namely I.A.No.3427/2008, directing sale of the property on 14.10.2019 in terms of its findings in the latter order. This order is also impugned herein by Sri.T.P.Joseph.
43. Sri.T.P.Joseph then appears to have stated before the Trial Court that he has filed Exhibit P17 application, numbered as I.A.No. 3453/2019, seeking stay of Exhibit P16 order, specifically asserting that he had not received the copy of the said order and that he intends to challenge it appropriately.
44. Sri.T.P.Joseph alleges that, in spite of this, the court went ahead with the auction of the property on 14.10.2019, in which he did not participate, and that its sale in favour of Sri.Ronald T.Dennison was confirmed at Rs.1,26,00,000/-, which is at the rate of Rs.25,20,000/- per share, being a mere Rs.1,23,720/- over the minimum price fixed, however, conceding that the third defendant - Sri.T.P.Mathew's son, Sri.Rajan Mathew (fourth respondent in the Original Petition) - took part in it. He asserts that the sale is void and that he, therefore, filed I.A.No.3682/2019 praying that it be set aside; OP(C) 3072 & 3280/19 21 also for the added reason that Sri.Ronald T.Dennison had not personally participated in the auction, but was represented only by his Power of Attorney Holder Sri.Viji P.Issac, who, as is evident from Exhibit P18 Power of Attorney, was not authorised to participate in the auction. He alleges that the court has not considered Exhibit P18 yet, but is likely to issue the sale certificate to Sri.Ronald T.Dennison soon.
45. Sri.T.P.Joseph has thus filed O.P.(C)No.3072/2019 challenging Exhibits P8, P13, P15 and P16 orders; while Sri.Ronald T.Dennison has filed O.P.(C)No.3280/2019 praying that the Trial Court be directed to issue him the sale certificate at the earliest.
46. Before moving forward, it must be recorded that this another learned Judge had earlier allowed O.P.(C)No.3280/2019, through judgment dated 09.03.2010, but which was reviewed on the application of Sri.T.P.Joseph and the Original Petition was reopened for further hearing.
47. The above said, there are certain developments in these cases when they were pending before this Court; which needs to be chronicled with some amount of pain.
OP(C) 3072 & 3280/19 22
48. This Bench commenced hearing these Original Petitions on 13.07.2020, after they were avoided by another learned Single Judge on 08.07.2020.
49. Sri.T.Sethumadhavan, learned Senior Counsel, instructed by Sri.Thomas M.Jacob argued for Sri.T.P.Joseph; while Sri.Joby Cyriac made submissions on behalf of Sri.Ronald T.Dennison. The arguments were impelled by both sides in great detail on that day and the hearing continued on 17.07.2020. There were lot of open discussions at the Bar on the legal aspects involved and Sri.Joby Cyriac subsequently instructed Sri.P.Viswanathan, learned Senior Counsel, to appear on behalf of Sri.Ronald T.Dennison and this Court heard him at length on 22.07.2020. One of the questions that this Court put to Sri.Viswanathan was how the Trial Court could have ordered sale of the property, without first entering into a finding that its division by metes and bounds is either inequitable or impossible or impracticable or inconvenient or unreasonable. The learned Senior Counsel unequivocally conceded that there is no such finding by the court in any of the orders, but contended that it must be assumed, by the conduct of the parties, that they wanted partition to be effected OP(C) 3072 & 3280/19 23 by sale of the properties and distribution of its proceeds. This Court then expressed reservation on this submission, since there is no discernible material or document to show such agreement between the parties, when Sri.P.Viswanathan sought a day's time to look into this aspect.
50. However, on 23.07.2020, Sri.Joby Cyriac submitted that Sri.Viji P.Issac, the Power of Attorney Holder of Sri.Ronald T.Dennison, had instructed him not to appear further and, therefore, that the engagement of Sri.P.Viswanathan had been withdrawn. He further submitted that Sri.Viji P.Issac asked him to do certain things, which he could not disclose; however, saying that he wanted him to obtain recusal of this Bench one way or the other because of the observations made as recorded earlier. He thus pleaded that he be relieved, which this Court allowed. Since there was no other counsel appearing for Sri.Ronald T.Dennison, I indited all these developments in the proceedings of that date and adjourned these cases to be called the next day, namely on 24.07.2020.
51. On 24.07.2020, Sri.P.S.Sujeth, another learned counsel, submitted that he was appearing for Sri.Ronald T.Dennison, but only OP(C) 3072 & 3280/19 24 in O.P.(C)No.3072/2019 and not in O.P.(C)No.3280/2019 (startingly, the docket of O.P.(C)No.3280/2019 show that it had been originally filed by Sri.P.S.Sujeth and that he had subsequently relinquished the vakalath for Sri.Ronald T.Dennison, thus allowing Sri.Joby Cyriac to appear). He further submitted that he had filed a new application seeking that these matters be heard by another Judge. Since this application had not reached the Bench, I recorded all that which transpired in the proceedings of the said date and posted the cases to 27.07.2020.
52. On 22.07.2020, I.A.No.1/2020, filed by Sri.P.S.Sujeth, on behalf of Sri.Ronald T.Dennison, was available on file, with the following prayer:
"this Hon'ble Court may be pleased to pass appropriate order directing the registry to post the case for further hearing for any other appropriate bench" (sic).
53. The reasons stated in the affidavit filed in support of this application, which has been sworn to by Sri.Viji P.Issac - the Power of Attorney Holder of Sri.Ronald T.Dennison - is incredulous, to say the least and I deem it necessary to reproduce them below: OP(C) 3072 & 3280/19 25
"It is submitted that the above case was heard by Justice Devan Ramachandran on 22/07.2020 and after hearing both side partly in morning session, the case was adjourned for next day i.e. tomorrow for final hearing.
Thereafter, this deponent was waiting at the court premises in order to meet his lawyer at 3 PM. In the meanwhile, I got an information from the close friend of the original petitioner that the petitioner in the above original petition has openly declared that he will be challenging the judgment if it is adverse, before the appropriate Court/Authority stating that said judgment is the result of partiality because of the fact that Hon'ble Judge (Mr.Justice Devan Ramachandran) was the former lawyer of this deponent, in W.P. (C)No.35289/2010 which was disposed on 07/04.2011 by the Hon'ble divion bench. True copy of the information downloaded from the High Court website in this regard is produced herewith and marked as Exhibit R1(a).
In view of the what is stated above, this deponent does not wish to have a favourable or adverse judgment from Hon'ble Justice Devan Ramachandran in this Hon'ble Court".
54. Sri.T.P.Joseph had, by the time the above application reached the Bench, filed a detailed counter affidavit to it - since his counsel had received its copy earlier - denying all the afore-extracted averments and allegations in it, then affirmatively declaring that he has no objection in this Bench hearing the matters and accusing Sri.Viji P.Issac indulging in forum hunting.
55. I, therefore, dismissed I.A.No.1/2020 by a detailed order dated 27.07.2020, finding no cause having been made out by the petitioner to seek this Bench's recusal; and requested Sri.P.S.Sujeth to make submissions on behalf of Sri.Ronald T.Dennison, to which he OP(C) 3072 & 3280/19 26 belligerently reacted saying that he has been instructed by Sri.Viji P.Issac only to obtain recusal of this Bench and not to argue on the merits of the Original Petitions. He then said very non-chalantly that this Court, by asking him certain questions on the application and in requiring him to argue the Original Petition is 'harassing him' and that he cannot be compelled, when he does not want to do so. He also challenged this Court to initiate any action against him or his client, including under the Contempt of Courts Act, declaring that he knows how to handle it.
56. Taken completely aback by the stand adopted by Sri.Sujeth, I chose to adjourn the cases after a few days, recording all these in the order dated 27.07.2020, under the hope that better sense will prevail on the counsel and his client.
57. The matters, thereafter, came up on 03.08.2020; but neither did Sri.P.S.Sujeth appear nor was the petitioner present. I, therefore, adjourned the Original Petitions to be called on 06.08.2020, on which day I noticed that Sri.P.S.Sujeth has filed a memo dated 28.07.2020, in both these Original Petitions, relinquishing his engagement, stating that the petitioner (obviously referring to OP(C) 3072 & 3280/19 27 Sri.Ronald T.Dennison) intended to 'appear in person'. However, neither was Sri.Ronad T.Dennison present nor was he represented by another counsel. Consequently, I ordered that notices be issued from this Court to him and to his Power of Attorney Holder, informing that these Original Petitions will be heard on 17.09.2020 or thereafter.
58. Pertinently, the notice issued to Sri.Ronald T.Dennison was returned unaccepted to this Court with the endorsement 'not known'; while that issued to his Power of Attorney Sri.Viji P.Issac was accepted and he was present in person on 24.09.2020. He told me that he had filed an application seeking that he be allowed to argue the cases 'party-in-person' and alleged that this, however, had been rejected by the Registry and refused to be numbered, citing the legal inhibition on a Power of Attorney Holder to appear in person on behalf of the party litigant. I, therefore, allowed him to make submissions on the merits of the matter, if he is so interested, since there was no representation on behalf of Sri.Ronald T.Dennison on this day either. However, the Power of Attorney Holder refused to do so, but again demanded that this Court recuse from hearing these matters. This conduct of the Power of Attorney Holder, in having appeared before OP(C) 3072 & 3280/19 28 this Court in response to the notices issued earlier, but in persistently seeking recusal of this Court, even though I.A.No.1/2020 had already been dismissed on 27.07.2020 - which order appears to have been accepted by Sri.Ronald T.Dennison without any challenge to it - can only be construed to be contumacious and intended to inter-meddle with the processes of law.
59. I, therefore, had no other option but to reserve judgment on that date, since, as has been narrated afore, hearing of these cases had been concluded even as on 22.07.2020, when the learned Senior Counsel on both sides had been heard fully. I, thus, proceed to deliver the judgment.
60. It is in such unhappy scenario that these Original Petitions are listed before me today.
61. As recorded above, the vehement assertion of Sri.T.Sethumadhavan, learned Senior Counsel, is that the Trial Court could not have issued the impugned orders, nor could it have directed sale of the property between the shareholders, unless it had first entered into a finding that division of the property by metes and bounds is not possible or equitable. He submits that his client's OP(C) 3072 & 3280/19 29 specific case throughout has been that, since he holds 3/5 shares and since the property is his ancestral one, he should be permitted to buy 1/5 share of Sri.Ronald T.Dennison for a value to be fixed by the court. He further contended that if the court had found this to be not possible, then the property ought to have been only allotted in species, since, in Exhibit P2 report of the learned Advocate Commissioner, he has stated that this is possible by demolishing the building and especially because Sri.Ronald T.Dennison had also sought for this through Exhibit P3.
62. Sri.T.Sethumadhavan then proceeded to his next line of argument saying that, as is clear from the impugned orders, the court appears to have misunderstood his client's application to be one seeking sale of the property; then asserting that what he meant through the averments in the affidavit in support of Exhibit P4 is that the most equitable way of effecting partition is by selling the share of Sri.Ronald T.Dennison to his client, since 1/5 part of the property, which alone is eligible to him, would obtain only a nominal value, because a new construction thereon would be impossible. He submitted that this stand of his client has been, unfortunately, OP(C) 3072 & 3280/19 30 wrongly understood by the court that he wants sale of the property, when, in fact, what he offered was to buy the share of Sri.Ronald T.Dennison, if he was interested in selling it to him.
63. Sri.T.Sethumadhavan concluded his submissions by contending that the sale now conducted by the court is incompetent and void, since it has been done on the basis of Exhibit P10 application filed by Sri.Ronald T.Dennison under Section 3 of the Partition Act, even when, admittedly, no shareholder had filed a petition under Section 2 of it. He thus prayed that O.P.(C)No. 3072/2019 be allowed and O.P.(C)No.3280/2019 be dismissed.
64. The contention, in response, of Sri.Ronald T.Dennison, as has been argued by his earlier Senior Counsel Sri.P.Viswanathan and the learned counsel Sri. Joby Cyriac, is that the Trial Court has acted in conformity with the legal mandate applicable to partition of the immovable property, since it is luculent from Exhibit P2 report of the learned Advocate Commissioner that the property cannot be equitably divided by metes and bounds among the sharers. He says that this is admitted by Sri.T.P.Joseph also in his Exhibit P4 application, where he says that 'sale alone will meet the ends of justice'. His further OP(C) 3072 & 3280/19 31 assertion is that the conduct of Sri.T.P.Joseph in having again filed Exhibit P12 application under Section 3 of the Partition Act establishes without doubt that he was fully in favour of sale of the property, since such an application could not have been maintained or allowed without the court first ordering sale under Section 2 of the said Act.
65. However, to a pointed question from this Court, it was admitted that in none of the orders has the Trial Court specifically stated or found that the property cannot be equitably or practically divided by metes and bounds; but it was, nevertheless, argued on behalf of Sri.Ronald T.Dennison that such a specific finding is not necessary in this case, when Sri.T.P.Joseph had agreed to the sale of the property. However, when it was pointed out by Sri.T.Sethumadhavan, learned Senior Counsel, that, even if this assertion of Sri.Ronald T.Dennison is accepted for argument, without admitting it, the fact remains that there is one more sharer, namely Sri.Rajan Mathew - the third respondent in O.P.(C)No.3072/2019, who had not agreed to the sale of the property at any time, the contra- submission was that consent of Sri.Rajan Mathew is irrelevant, since OP(C) 3072 & 3280/19 32 he has not assailed any of the orders of the Trial Court and because he had participated in the auction held on 14.10.2019.
66. It was thus prayed on behalf of Sri.Ronald T.Dennison that O.P.(C)No.3072/2019 be dismissed and that this Court allow O.P.(C) No.3280/2019, directing the Munsiff's Court, Kothamangalam - to which the Final Decree Application has now been transferred and numbered as F.D.A.No.29/2019 - to issue him a Sale Certificate and complete the 'post sale proceedings' within a time that this Court may fix.
67. The facts and submissions of the rival parties being so recorded, I now proceed to consider their dialectical contentions.
68. It is ineluctable from the settled position of law, discussed in the beginning of this judgment, that every court is enjoined to partition the properties - which is the subject matter of the suits - by metes and bounds, especially when the preliminary decree provides so.
69. A deviation from this cardinal principle is permitted only in two specific scenarios: (a) if the court finds that partition by metes and bounds is inequitable or impracticable or not reasonable, for OP(C) 3072 & 3280/19 33 reasons to be recorded; and (b) if the parties themselves seek sale of the properties either by making an application under Section 2 of the Partition Act, or if they concede to such expressly or, at least, impliedly.
70. Obviously, in the first afore situation, the consent or permission of the parties is irrelevant, since it is for the court to answer if the properties are incapable of division by metes and bounds, though the conduct of the parties and their pleadings and evidence would become relevant for the court in arriving at such a decision.
71. But when it comes to the second afore situation, the parties have a definite role to play. Thus, if a shareholder or shareholders, with more than one moiety individually or together, applies for sale under Section 2 of the Partition Act, the court becomes obligated to determine if a metes and bounds division of the properties is possible and if it becomes convinced otherwise, it can order sale and distribution of its proceeds. However, there may be cases where no shareholder makes such an application - whether because their respective share is less than a moiety or otherwise - but OP(C) 3072 & 3280/19 34 all of them still expressly agree that a sale be ordered, the court can certainly allow it with due diligence.
72. When I assess the facts of this case, it is rendered limpid that none of the parties had, at any point of time, filed any application under Section 2 of the Partition Act. In fact, Sri.Ronald T.Dennison is statutorily incapacitated from doing so, since, concededly, his share in the property is much less than a moiety. Hence, the applications filed by them under Section 3 of the Partition Act, namely Exhibit P4 (by Sri.T.P.Joseph), Exhibit P10 (by Sri.Ronald T.Dennison) and Exhibit P12 (again by Sri.T.P.Joseph) are incompetent and non-maintainable. Therefore, the challenge of Sri.T.P.Joseph against Exhibit P8 order, dismissing Exhibit P4 application, is without any legal merit.
73. That said, the crucial question is how the court could have then directed sale of the property.
74. In this context, it is now perspicuous that the court could have done so only if it had been convinced that a division of the property by metes and bounds was not possible or was inequitable. However, it is crystally clear from Exhibits P13, P15 and P16 orders that the court has not even touched upon - much less find - that the OP(C) 3072 & 3280/19 35 properties are incapable of division by metes and bounds - either practically or equitably.
75. A close reading of these orders would make it obvious that the court, on account of the averments in the affidavit filed in support of the incompetent applications filed by Sri.T.P.Joseph under Section 3 of the Partition Act, namely, Exhibits P4 and P12, misdirected itself to think that he also wanted sale of the property. However, this impression of the court cannot obtain approval when one looks closely at the pleadings of Sri.T.P.Joseph.
76. That apart, Exhibit P1 preliminary decree was issued directing metes and bounds division of the property to the sharers. Sri.Ronald T.Dennison, in his Final Decree Application, also sought this. Normally, therefore, the court ought to have done so and nothing else.
77. That said, in Exhibit P2 report, the learned Advocate Commissioner opined that without demolishing the building on it, the land cannot be divided by metes and bounds; but he also furnished a supplemental sketch dividing the building among the sharers. OP(C) 3072 & 3280/19 36
78. Sri.Ronald T.Dennison, thereupon, filed Exhibit P3 application for sale of the building (but not the land), through an Advocate Commissioner; which then prompted Sri.T.P.Joseph to file Exhibit P4 application, showing it to be under Section 3 of the Partition Act, for leave to purchase the share of Sri.Ronald T.Dennison.
79. The subsequent proceedings of the court and the application made by the parties, as described earlier, were all directed at ascertaining the real worth of the property and the value of each share. Exhibits P6 and P9 reports were thus obtained by the court - based on the various petitions filed by the parties - in which the value of each share was fixed as Rs.23,79,923.60 and Rs.15,97,738/- respectively.
80. Some time during this, Sri.Ronald T.Dennison withdrew Exhibit P3 application seeking a prayer to sell the building alone; and the court rightly dismissed Exhibit P4 application of Sri.T.P.Joseph, filed under Section 3 of the Partition Act.
81. Pertinently, at this juncture, Sri.Ronald T.Dennison filed Exhibit P10 application - showing it to be under Section 3(1)(2) of the OP(C) 3072 & 3280/19 37 Partition Act and Section 151 of the Code of Civil Procedure - praying that the court allow auction the property between himself and Sri.T.P.Joseph alone, creating an impression that both of them are so interested.
82. As a virtual counter blast, Sri.T.P.Joseph filed Exhibit P12, also under Section 3 of the Partition Act, seeking leave to buy the share of Sri.Ronald T.Dennison.
83. These applications ought not to have been considered by the court under the mandate of Section 3 of the Partition Act, for the same reason it had dismissed Exhibit P4 application of Sri.T.P.Joseph - namely, that no application had earlier been filed by any shareholder seeking sale of the property under Section 2 of the said Act.
84. However, the court made the first mistake in having framed an issue for consideration as to the valuation of the property for the purpose of Section 2 of the Partition Act; and then allowing both the applications, through Exhibit P13 order; thus directing auction of the property as per Section 3 of the Partition Act.
85. Of course, the court, thereafter, on the basis of Exhibit P14 petition for review filed by Sri.T.P.Joseph, modified the directions in OP(C) 3072 & 3280/19 38 Exhibit P13 - through Exhibit P15 order - but still ordered sale of the property under Rule 234 of the Civil Rules of Practice, and not under Section 3 of the Partition Act. For doing so, the court held that Exhibit P10 application of Sri.Ronald T.Dennison is to be construed as one being under Section 151 of the Code of Civil Procedure, since this provision had also been invoked therein.
86. Apodictally, this is where the court committed the second error. This is because, for one, it could have ordered sale invoking its inherent power under Section 151 of the Code of Civil Procedure and not under Rule 234 of the Civil Rules of Practice - this Rule providing for only the procedure for such a sale; and for the other, before it could have permitted sale by invoking its inherent power, it was obligated to enter a specific finding that the property is incapable of division by metes and bounds or that it would be inequitable to do so to the sharers. However, even without any such enquiry or finding, it permitted sale for the sole reason that Sri.T.P.Joseph had also sought it through Exhibit P12 application. But, when one glances through Exhibit P12, it is clear that Sri.T.P.Joseph has not consented to sale of the property, but only sought leave to buy the share of Sri.Ronald OP(C) 3072 & 3280/19 39 T.Dennison at the price fixed by the Advocate Commissioner in Exhibit P9 report.
87. Moreover, the court completely omitted to see that the prayer of Sri.Ronald T.Dennison in Exhibit P10 application was for sale of the property through auction between himself and Sri.T.P.Joseph alone, without involving the other sharers, making it appear that he is only interested in money. This prayer, even under Section 151 of the Code of Civil Procedure could not have been entertained without the consent of the other sharers. The court, however, without noticing this grave anomaly ordered sale among all the sharers though the third sharer (third respondent herein) gave no consent for it.
88. The court, thereafter, committed the third error in issuing Exhibit P17 order in the Final Decree Application filed by Sri.Ronald T.Dennison, namely I.A.No.3427/2008, and directed sale of the properties, consequent to which the auction took place on 14.10.2019.
89. For the afore reasons, I would certainly be justified in setting aside Exhibits P13, P15 and P17 orders; but before doing so OP(C) 3072 & 3280/19 40 and so as to be convinced that this Court is acting correctly, I deem it apposite also to examine the averments of Sri.T.P.Joseph in the affidavit filed in support of Exhibit P4 - the first application under Section 3 of the Partition Act. I feel this necessary, since a contention was urged on behalf of Sri.Ronald T.Dennison that consent of Sri.T.P.Joseph for the conduct of sale of the property is manifest from Exhibit P4 - though this application had already been dismissed by the court through Exhibit P8 order and therefore, that Exhibits P13, P15 and P17 are irreproachable.
90. The specific asserverations of Sri.T.P.Joseph in Exhibit P4 are that if the building in the property is demolished and the land is divided, the resultant 1/5 share of Sri.Ronald T.Dennison would only get a nominal value - being incapable of a new construction thereon because of the applicable Building Rules - and hence that only 'sale will meet the ends of justice'. He further stated that since all the other sharers except Sri.Ronald T.Dennison, are members of the family and since the property is an ancestral one, he may be granted leave to buy the share of Sri.Ronald T.Dennison. The words 'sale alone will meet the ends of justice' in the affidavit of Sri.T.P.Joseph cannot OP(C) 3072 & 3280/19 41 be seen in isolation and when it is read in the context of the accompanying averments, it, prima facie, is rendered possible that, as rightly explained by Sri.T.Sethumadhavan, learned Senior Counsel, Sri.T.P.Joseph was referring to the sale of the share of Sri.Ronald T.Dennison to him and not to the sale of the property.
91. The rundown of the rather prolix narration and observations above can only lead me to the certain opinion that Exhibits P15 and P16 orders are incapable of the imprimatur of this Court and hence, liable to be set aside.
92. Axiomatically, the auction of the property conducted pursuant to Exhibits P15 and P16 orders also become unsustainable; resultantly, requiring the court to take up the Final Decree Application and dispose it of as per law.
Thus, I allow O.P.(C)No.3072/2019 setting aside Exhibits P15 and P16 orders and consequently, declaring that the sale conducted as per its terms is incompetent and void.
As a necessary corollary, W.P.(C)No.3280/2019 will stand dismissed.
OP(C) 3072 & 3280/19 42
Resultantly, the Munsiff's Court, Kothamangalam, to which the Final Decree Application has been transferred and re-numbered as F.D.A.No.29/2019, will dispose of the same in terms of law, as expeditiously as possible, but not later than eight months from the date of receipt of a copy of this judgment.
Lest the Munsiff's Court think otherwise, I clarify that my observations herein are not to mean that the said court cannot effect partition by sale of the property at all; but solely that such course be adopted only if it concludes, for the reasons to be recorded, that its division by metes and bounds is inequitable, impracticable, unreasonable, inconvenient or not beneficial to the shareholders, or that the pleadings on record render it inescapable that Sri.T.P.Joseph had, expressly or impliedly, agreed to it.
Sd/-
Devan Ramachandran, Judge tkv OP(C) 3072 & 3280/19 43 APPENDIX OF OP(C) 3072/2019 PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF PRELIMINARY DECREE DATED 9.2.2007 IN O.S NO.488/2001.
EXHIBIT P2 TRUE COPY OF THE COMMISSION REPORT DATED 20.1.2009 TOGETHER WITH THE TWO SURVEY SKETCH.
EXHIBIT P3 TRUE COPY OF I.A NO.476/2009 FILED BY PLAINTIFF TO SELL THE BUILDING IN PLAINT SCHEDULE PROPERTY BY AUCTION AND TO APPOINT COMMISSIONER.
EXHIBIT P4 TRUE COPY OF I.A NO.499/2009 FILED BY THE PETITIONER/2ND DEFENDANT SEEKING LEAVE TO BUY THE PLAINTIFF'S SHARE.
EXHIBIT P5 TRUE COPY OF I.A NO.1455/2009 FILED BY THE 1ST RESPONDENT/PLAINTIFF EXHIBIT P6 TRUE COPY OF 2ND REPORT DATED 16.12.2009 FILED BY ADVOCATE COMMISSIONER VALUING THE PROPERTY AS PER THE DOCUMENTS PRODUCED BY THE PLAINTIFF.
EXHIBIT P7 TRUE COPY OF ORDER DATED 11.1.2013 IN I.A NO.172/2010 AND I.A NO 1454/2009 REMITTING THE COMMISSION REPORT FOR FRESH VALUATING WITH ASSISTANCE OF EXPERT ENGINEER.
EXHIBIT P8 TRUE COPY OF ORDER DATED 24.5.2013 IN I.A
NO.499/2009 OF MUNSIFF'S COURT,
MUVATTUPUZHA.
EXHIBIT P9 TRUE COPY OF 3RD COMMISSION REPORT DATED
15.03.2015 FILED BY THE ADVOCATE
COMMISSIONER PURSUANT TO EXT.P7 ORDER IN
I.A 172/2010 AND I.A 1454/2009 TOGETHER
WITH THE VALUATION REPORT AND SKETCH OF THE
EXPERT ENGINEER.
OP(C) 3072 & 3280/19 44
EXHIBIT P10 TRUE COPY OF I.A NO.936/2017 FILED BY
PLAINTIFF TO AUCTION THE PROPERTY AMONG
PLAINTIFF AND SECOND DEFENDANT.
EXHIBIT P11 TRUE COPY OF OBJECTION DATED 27.5.2017 IN
I.A NO.936/2017 FILED BY THE PETITIONER.
EXHIBIT P12 TRUE COPY OF I.A NO.2964/2018 FILED BY THE
PETITIONER/2ND DEFENDANT SEEKING LEAVE TO
BUY THE SHARE OF THE PLAINTIFF UNDER
SECTION 3 OF THE PARTITION ACT.
EXHIBIT P13 TRUE COPY OF COMMON ORDER DATED 12.10.2018
IN I.A NO. 936/2017 AND I.A NO.2964/2018
FIXING VALUE OF THE PROPERTY AND DIRECTING
AUCTION AMONG THE SHARES.
EXHIBIT P14 TRUE COPY OF I.A NO.3555/2018 FILED BY
PETITIONER/2ND DEFENDANT TO REVIEW EXT.P13
ORDER.
EXHIBIT P15 TRUE COPY OF COMMON ORDER DATED 4.10.2019
IN I.A NO.3554/2018 AND IA NO.3555/2018.
EXHIBIT P16 TRUE COPY OF ORDER DATED 4.10.2019 IN I.A
NO.3427/2008 FINAL DECREE APPLICATION FILED
BY PLAINTIFF .
EXHIBIT P17 TRUE COPY OF I.A NO. 3453/2019 FILED BY THE
PETITIONER/2ND DEFENDANT SEEKING STAY OF
THE AUCTION PENDING CHALLENGE AGAINST THE
ORDER DATED 4.10.2019.
EXHIBIT P18 TRUE COPY OF THE POWER OF ATTORNEY OF THE
PLAINTIFF, DATED 22.09.2005.
EXHIBIT P19 TRUE COPY OF I.A NO. 3682/2019 FILED BY THE
PETITIONER/2ND DEFENDANT SEEKING TO SET
ASIDE THE SALE.
RESPONDENT'S EXHIBITS:
EXHIBIT R1(A) TRUE COPY OF THE INFORMATION DOWNLOADED
FROM THE HIGH COURT WEBSITE WITH RESPECT TO
THE STATUS OF WPC NO.35289/2010.
OP(C) 3072 & 3280/19 45
APPENDIX OF OP(C) 3280/2019
PETITIONER'S EXHIBITS:
EXHIBIT P1 THE TRUE COPY OF THE SALE REPORT IN I.A.
NO.3427/08 IN OS 488/01 BEFORE MUNSIFF
COURT, MUVATTUPUZHA, DATED 14-10-2019.
EXHIBIT P2 THE TRUE COPY OF THE SALE MEMORANDUM IN
I.A. NO.3427/08 IN OS 488/01 BEFORE MUNSIFF
COURT, MUVATTUPUZHA, DATED 14-10-2019.
EXHIBIT P3 THE TRUE COPY OF THE WARRANT OF SALE OF
PROPERTY UNDER ORDER 21, RULE 66 IN I.A.
NO.3427/08 IN OS 488/01 BEFORE MUNSIFF
COURT, MUVATTUPUZHA, DATED 14-10-2019.
EXHIBIT P4 THE TRUE COPY OF THE PAYMENT OF EARNEST
MONEY TOWARDS THE SALE OF PROPERTY IN I.A.
NO. 3427/08 IN O.S.488/01, DATED
15.10.2019.
EXHIBIT P5 THE TRUE COPY OF THE PAYMENT OF BALANCE
SALE CONSIDERATION OF RS. 94,50,000/- IN
THE SALE OF PROPERTY IN I.A. NO.3427/08 IN
O.S.488/01, DATED 28-10-2019.
EXHIBIT P6 THE TRUE COPY OF THE PAYMENT MADE BY THE
PETITIONER TOWARDS THE PURCHASE OF STAMP
PAPER FOR RS.15,120/- FOR THE SALE
CERTIFICATE.
EXHIBIT P7 TRUE COPY OF THE POWER ATTORNEY ISSUED BY
THE PETITIONER TO MR. VIJI P. ISSAC, WHO
HAVE CONDUCTED THE ASE IN THE COURT BELOW,
ON BEHALF OF THE PETITIONER.
/TRUE COPY/
P.S. TO JUDGE