Madras High Court
Fathima Bee Alias Mumtaz vs A.Khairunnissa on 22 August, 2024
C.R.P. (PD) No.1995 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 22.08.2024
CORAM
THE HON'BLE MR.JUSTICE V.LAKSHMINARAYANAN
C.R.P. (PD) No.1995 of 2024
and C.M.P.No.10857 of 2024
Fathima bee alias Mumtaz ... Petitioner/2nd Defendant
Vs.
1.A.Khairunnissa ... Respondent/Plaintiff
Najimunissa (deceased)
2.Basheerunnisa ... Respondent/3rd Defendant
3.S.Mubarack .... Respondent/ Auction Purchaser-3rd party
PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of
India, against fair and decreetal order dated 11.03.2024 passed in I.A.No.3 of 2023 in
I.A.No.5746 of 2018 in I.A.No.14131 of 2016 in O.S.No.2371 of 2010 on the file of
the XIII Assistant City Civil Court, Chennai District.
For the Petitioner : Mr.N.A.Nissar Ahmed
for Mr.K.Ramkumar
For the Respondents : Mr.D.Nellaiappan for R1
Mr.T.Anantha Sekar for R3
ORDER
This Civil Revision Petition arises against the order of the XIII Assistant Judge, City Civil Court, Chennai in I.A.No.3 of 2023 in I.A.No.5746 of 2018 in I.A.No.14131 of 2016 in O.S.No.2371 of 2010 dated 11.03.2024.
https://www.mhc.tn.gov.in/judis Page No.1 of 32 C.R.P. (PD) No.1995 of 2024 Facts leading to Revision
2. O.S.No.2371 of 2010 was filed by the 1st respondent – A.Khairunnissa. This is a suit for partition and separate possession. The claim of the plaintiff is that the suit schedule mentioned property belonged to one, P.E.Abdul Ahad, who died intestate on 11.06.2008. He left behind the following as his legal heirs to succeed to his estate.:-
(i) his wife, Najimunnissa, the 1st defendant- the mother of the plaintiff,
(ii) Fathima Bee @ Mumtaz, the 3rd defendant-the sister of the plaintiff; and
(iii)A.Khairunnissa, the plaintiff.
Pleading that she is entitled to 7/16th share and the 2nd defendant is entitled to 7/16th share and the 1st defendant is entitled to 2/16th share, the plaintiff presented the suit.
3. The defendants entered appearance and filed their written statement. They raised several pleas to defeat the claim of the plaintiff. However, the relationship between the parties was admitted.
4. On the basis of the pleadings, the parties went for trial. The suit came to be decreed by the learned Trial Judge on 20.12.2013. Aggrieved by the preliminary decree, the defendants 1 and 2 preferred an appeal before the learned XIX Assistant Judge, City Civil Court, Chennai. Pending the appeal, the first defendant (the wife of Abdul Ahad) passed away and one Basheerunnisa was brought on record as her legal representative. https://www.mhc.tn.gov.in/judis Page No.2 of 32 C.R.P. (PD) No.1995 of 2024 After hearing both sides, the Appeal Suit came to be dismissed on 25.01.2016. The second defendant, not being satisfied with the concurrent Judgments and Decrees, preferred a Second Appeal in S.A.No.442 of 2018 to this Court. The Second Appeal came to be dismissed on 08.11.2022. Thereby the preliminary decree passed by the Trial Court stood confirmed.
5. In the meantime, on the strength of the preliminary decree, the 1st respondent – plaintiff preferred an application for passing of final decree. Notice was ordered in the final decree application and an Advocate Commissioner was also appointed. The Advocate Commissioner submitted a report that the suit property is incapable of division. Therefore, the plaintiff – Khairunnissa filed an application in I.A.No.5746 of 2018 invoking Section 2 of the Partition Act of 1893.
6. The prayer itself had been framed in an extremely singular fashion. It reads as follows:
“To direct the advocate commissioner to sell the property to the parties to the suit in case any of the parties is interested purchasing the shares of other parties and in case no party is interested in purchasing the shares of the other parties to sell the suit property to third party and the sale proceeds directed to be deposited to the credit of the suit”.
7. After receipt of a counter, the learned Judge allowed the application in the https://www.mhc.tn.gov.in/judis Page No.3 of 32 C.R.P. (PD) No.1995 of 2024 following terms:
“31.01.2023 In the result, Mr. M. Mohamed Yasin appointed as an Advocate Commissioner is to inspect the Suit schedule property and take appropriate steps to sell the Suit schedule property in public auction after fixing the correct upset price and while conducting public auction, pre-emption right should be given to the parties to the suit to purchase the Suit schedule property…”
8. The learned XIII Assistant Judge, City Civil Court, Chennai, came to a conclusion that public auction could be held for the sale of the property, but the said public auction would be subject to the right of pre-emption of the parties in the suit, and they, if interested, would be given preference in purchasing the suit schedule mentioned property. Suffice it to state that the property was sold in a public auction and it was purchased by one S.Mubarack, who is the 3rd respondent in this revision. He had purchased the property for a sum of Rs.1,10,00,000/- (Rupees One Crore and Ten Lakhs). I have to add, the sale has not been confirmed.
9. Since the 2nd defendant – Fathima Bee, who is the Civil Revision Petitioner, is in possession of the property, she took out an application in I.A.No.3 of 2023. The prayer in the application was to permit her to purchase the suit property and to permit her to deposit a sum of Rs.57,29,167/-. This was the figure that the plaintiff was entitled https://www.mhc.tn.gov.in/judis Page No.4 of 32 C.R.P. (PD) No.1995 of 2024 to as per the preliminary decree. The 2nd defendant sought to deposit this amount after deducting a sum of Rs.52,70,833/-, which corresponds to the value of her share, as per the preliminary decree.
10. The learned Judge issued notice in the said application and received a counter from both the 1st respondent as well as the 3rd respondent. The pleadings were completed by the 2nd defendant upon filing a reply statement.
11. The learned Judge took up the application for disposal. He held that since the procedure under Order XXI Rule 89 of CPC had not been followed, the petitioner is not entitled to any relief. He held that the petitioner should file an appliction to deposit the entire amount of Rs.1,10,00,000/-. Since the petitioner deducted her share from the amount, the petition deserves to be dismissed. Hence, this revision.
Whether the revision in maintainable?
12. In terms of Section 8 of the Partition Act, an appeal is provided for from an order of sale made by the Court under Sections 2,3, and 4 of the Partition Act. In other words, where an application is filed under any of the provisions of these three sections and an order is passed directing sale, the remedy for a person aggrieved by such an order, is to prefer a civil miscellaneous appeal against the said order. This is because it is “deemed to be a decree” under Section 2 of Code of Civil Procedure, 1908. Similarity https://www.mhc.tn.gov.in/judis Page No.5 of 32 C.R.P. (PD) No.1995 of 2024 can be drawn between Section 8 of the Partition Act and Section 144, Order VII Rule 11, Order XXI Rule 58 (4), Order XXI Rule 103, etc., of the Code of Civil Procedure. The order impugned in this revision has dismissed the petition filed under Section 3 of the Partition Act. An appeal is maintainable only if the application had been allowed. Since the application is dismissed, the remedy is only by the way of a revision.
Position of law prior to Partition Act, 1893
13. Before I go into the merits of this petition, I will have to see the purpose for which the Partition Act, 1893 was enacted. Prior to the Partition Act of 1893, the power to partition properties and to appoint a Commissioner to assist the Court in that respect was available under Sections 265 and 396 of the Code of Civil Procedure 1882.
14. Section 265 of the Code of Civil Procedure, 1882 enabled a District Collector to partition the properties, which were undivided estates paying revenue to the Government. The power of division vested with the Collector. The present version of Section 265 of the Code of Civil Procedure 1882 is Section 54 of Code of Civil Procedure, 1908. This provision need not detain me, even for a moment, as the matter has been answered in reference by the Division Bench of this Court. See, K.Jaya @ Jayalakshmi v. Padma @ Padmavathi, 2021 (5) CTC 17 (DB).
15. The other provision which laid down the procedure that the Courts would have to adopt for partition of lands, which were not paying revenue to the Government, https://www.mhc.tn.gov.in/judis Page No.6 of 32 C.R.P. (PD) No.1995 of 2024 is Section 396 of Code of Civil Procedure, 1882. This came under Part II, namely, “of Incidental proceedings”. Chapter XXV dealt with appointment of Commissioners. Section 396 dealt with appointment of Commissioners to make partition of the properties which were not paying revenue to the Government. The said Section read as follows:
“396. In any suit in which the partition of immovable property not paying revenue to Government appears to the Court to be necessary, the Court, after ascertaining the several parties interested in such property and their several rights therein, may issue a commission to such persons as it thinks fit to make a partition according to such rights.
The Commissioners shall ascertain and inspect the proprety, and shall divide the same into as many shares as may be directed by the order under which the commission issues, and shall allot such shares to the parties, and may, if authorised thereto by the said order, award sums to be paid for the purpose of equalising the value of the shares.
The Commisioner shall then prepare and sign a report, or (if they cannot agree) separate reports, appointing the share of each party, and distinguising each share (if so directed by the said order) by metes and bounds. Such report or reports shall be annexed to the comission and transmitted to the Court; and the Court after hearing any objections which the parties may make to the report or reports, shall either quash the same and issue a new commission, or (where the Commissioners agree in their report) pass a decree in accordance therewith.” https://www.mhc.tn.gov.in/judis Page No.7 of 32 C.R.P. (PD) No.1995 of 2024
16. By virtue of this Section, the Court was only authorised to divide a property. In case, the property was incapable of equal division, then the Court could award monetary compensation for the purpose of equalising the value of the shares. The law, as it stood prior to 9th March 1893, was that, the Court was duty bound to give a share, and could not direct a sale of such property and thereafter, divide the proceeds of such sale amongst the sharers. This created difficulties in implementation as the court could not grant equal division of the properties in all cases. There were instances when the property was inseverable or indivisible into equal shares. It rendered the decree of the court ineffective. Therefore, the colonial legislature brought into force the Partition Act, 1893, a measure akin to the English Law, the Partition Act of 1868. It took inspiration from Section 310 of the Code of Civil Procedure of 1882.
Section 310 of the Code of Civil Procedure,1882 read as follows:
“Whether the property sold in execution of a decree, is a share of undivided immovable property, and two or more persons, of whom one is a co-owner, respectively advance the same sum at any bidding at such sale, such bidding shall be deemed to be the bidding of the co-sharer.”
17. Under Section 310, when a property- which is a share of an undivided immovable property- is sold in execution of a decree, and where two or more persons are claiming the property, of whom one is a co-sharer, then the co-sharer was entitled to https://www.mhc.tn.gov.in/judis Page No.8 of 32 C.R.P. (PD) No.1995 of 2024 bid and purchase the share that was brought for sale. In other words, by virtue of Section 310, a right of pre-emption was given to the parties.
18. The purpose of the Partition Act was to vest with the Court a discretion to direct sale of the property where the division of the property cannot be reasonably made and a sale would be beneficial to the parties. At the same time, the legislature took into consideration the attachment that the citizenry of this country would have to their landed possession. This excessive attachment to the land could lead to oppression. Therefore, it was proposed under the Partition Act to give the shareholders, who do not desire the alienation of the family properties to third parties, a right to buy the shares of the others at a valuation determined by the Court.
19. The Statement of Objects & Reasons makes it clear that where the Court orders sale of a property that is incapable of division, a right of pre-emption is granted to the co-sharers. As seen above, it corresponds to Section 310 of the Code of Civil Procedure, 1882. The Act also conferred on the Court the power to compel a stranger to the family who, by purchase, acquired a share in the family dwelling house, to sell the share that he had so purchased to the members of the family at a valuation determined by the Court when he seeks partition. The enactment applied the rule of law which was followed amongst those belonging to Islamic Persuasion to all those who are not Muslims. The said Act came into force on 09.03.1893. It has rendered succor to https://www.mhc.tn.gov.in/judis Page No.9 of 32 C.R.P. (PD) No.1995 of 2024 litigants, who want to retain their family holdings in general and a dwelling house in particular to the exclusion of strangers who had purchased a share over the same.
Stages at which application under Section 3 can be filed
20. The two relevant sections of the Partition Act for the purpose of the case are sections 2 and 3. The said provisions are extracted hereunder:
“2. Power to court to order sale instead of division in partition suits.—Whenever in any suit for partition in which, if instituted prior to the commencement of this Act, a decree for partition might have been made, it appears to the court that, by reason of the nature of the property to which the suit relates, or of the number of the shareholders therein, or of any other special circumstance, a division of the property cannot reasonably or conveniently be made, and that a sale of the property and distribution of the proceeds would be more beneficial for all the shareholders, the court may, if it thinks fit, on the request of any of such shareholders interested individually or collectively to the extent of one moiety or upwards, direct a sale of the property and a distribution of the proceeds.
3. Procedure when sharer undertakes to buy.—(1) If, in any case in which the court is requested under the last foregoing section to direct a sale, any other shareholder applies for leave to buy at a valuation the share or shares of the party or parties asking for a sale, the court shall order a valuation of the share or shares in such manner as it may think fit and offer to sell the same to such shareholder at the price so ascertained, and may give all https://www.mhc.tn.gov.in/judis Page No.10 of 32 C.R.P. (PD) No.1995 of 2024 necessary and proper directions in that behalf.
(2) If two or more shareholders severally apply for leave to buy as provided in sub-section (1), the court shall order a sale of the share or shares to the shareholder who offers to pay the highest price 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.”
21. The condition precedent for exercising the power under Section 2 is that by the nature of the property or the number of the shareholders, if a division of the property cannot be reasonably or conveniently made and if the sale of the property and distribution of the proceeds would be beneficial to all the shareholders, then the Court on the request of any of the shareholders could direct sale and distribution of assets. The triggering point should be an application to be filed by a shareholder requesting such a course of action. If a shareholder had filed an application under Section 2, then it enables the non-petitioning shareholder to apply for leave to buy the share of the party asking for such a sale. The court had to then direct for the valuation of the property. This gave rise to an issue as to what is the stage in which an application under Section 3 could be entertained.
22. A Division Bench of this Court in Angamuthu Mudaliar v. Ratna Mudaliar, https://www.mhc.tn.gov.in/judis Page No.11 of 32 C.R.P. (PD) No.1995 of 2024 ILR (1925) 48 Mad 920 held as follows:
"It is clear to our minds that section 3 of the Partition Act cannot be applied after “the Court had already directed a sale and in this case the sale was with the consent of all parties ... It seems to us therefore that the proper time to apply under section 3 is before a Court makes an order under section 2, and after the request had been made by one of the parties that the property should be sold. ... Section 3 contemplates that, when the application is made by one of the parties to direct a sale of the property and before the Court makes the order, any other party who is entitled to a share in the property may at once apply for leave to buy at a valuation and when such an application is made,..."
23. By virtue of this judgment, the view that was taken is that an application under Section 3 can be made only before a Court directs the sale under Section 2 of the Partition Act. This judgment, held the fort for four decades. It came up for consideration before Mr.Justice P.S.Kailasam in P.J.S.Jayarama Chettiar vs. Annamalai Chettiar (1966) ILR 2 MAD 530. The learned Judge held that these observations are obiter and therefore, not binding on him.
24. He took a view that there is nothing in Section 3 requiring a sharer to make an application before the sale is actually held. He further held that there is no justification for holding that the application should be made before the sale is ordered. He observed, it is only after a sale is held, third party rights would interefere and an application under https://www.mhc.tn.gov.in/judis Page No.12 of 32 C.R.P. (PD) No.1995 of 2024 Section 3 may not be available.
25. Taking note of the two differing views, Mr.Justice Ganesan referred the matter to a Division Bench on the following questions:
(i) Whether the observations of the Division Bench in Angamuthu Mudaliar vs. Ratna Mudaliar, (1925) 22 LW 323, that the proper time to apply under Section 3 of the Partition Act is before a court makes an order Under Section 2 of that Act and once an final order has been made as between the parties that the property must be sold under Section 2 and that means a sale open to the public when anybody might bid for the property unless it is expressly restricted to be between the parties only, no order can be made under Section 3, as it is too late then to apply under that Section, or obiter, and, in case they are not obiter.
(ii) Whether the said observations do not contain a correct statement of law?
26. This reference was placed before a Division Bench consisting of the Hon'ble Chief Justice Mr.Veeraswami and Mr. Justice Raghavan. The learned Judges answered the reference in Sarayakaran @ Muniyan vs. Perumal AIR 1973 MAD 448. The Bench agreed with Mr. Justice P.S.Kailasam and declared that a right to apply under Section 3(1) of the Partition Act arises the moment a request under Section 2 is made to the Court. Even beyond that stage, after the Court has ordered for the sale of the property, https://www.mhc.tn.gov.in/judis Page No.13 of 32 C.R.P. (PD) No.1995 of 2024 an application is always permissible. However, the order made under Section 2 or a sale carried out pursuant to that order must be set aside. The relevant portion reads as follows:
12. On a plain reading of Ss. 2 and 3, it seems to us that the right to apply under S. 3 (1) arises the moment a request has been made under S. 2. If a direction for sale of the property has been given under S. 2, it does not follow that an application under S. 3(1) cannot be made thereafter. All that is necessary is that in order that an application under S. 3(1) may not be considered, the petitioner should apply to have the order under S. 2 set aside because, so long as that order stands, the application under S. 3(1) does not call for consideration. It may be even visualised that a sale has taken place under S. 2. Even in such a case, as it seems to us, there is no bar to be inferred from the two Sections, to an application being made under S. 3(1), but only, it cannot be considered unless the order for sale made under S. 2 is set aside. That, we think is the correct approach. We do not think that the question was considered in Angamuthu Mudaliar v. Ratna Mudaliar. As to Jayarama v.
Annamalai, we agree with Kailasam, J. that a right to apply under S. 3(1) accrues the moment a request under S. 2 has been made to the court. Beyond that stage, an application may always be permissible, but only, as we said, any order made under S. 2, or sale held pursuant to that order will have to get out of the way first before an application under S. 3(1) can be taken up for consideration.
27. I should add a line here on the verdict in Angamuthu Mudaliar’s case. The https://www.mhc.tn.gov.in/judis Page No.14 of 32 C.R.P. (PD) No.1995 of 2024 facts of the case reveal that the parties by consent had agreed to a sale when a petition was filed under Section 2 of the Partition Act. An application under Section 3 can be filed only by a sharer who is not an applicant under Section 2. As the sharers in that case had agreed for sale under Section 2, the petitioner, who filed the petiiton under Section 3, has to be deemed a co-applicant in the application filed under Section 2 and consequently, the subsequent application filed by him under Section 3 is not maintainable.
28. In the meantime, the Supreme Court had an occasion to deal with the Partition Act in R. Ramamurthi Iyer v. Raja V. Rajeswara Rao, (1972) 2 SCC 721. The Supreme Court held that no formal application is necessary for invoking a right under Section 3. If a party, who is not the applicant under Section 2 and who is a shareholder in the undivided property, informs the court or notifies the court that he is prepared to buy the property upon a valuation of the share of the party asking for sale, then the court is duty bound to proceed under Section 3. In clear terms, the court held:
“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.”
29. This issue yet again came up before a learned Single Judge of Bombay High Court in Taherbhai Abdulalli v. Nagindas Gokuldas Saraf and others AIR 1979 Bom https://www.mhc.tn.gov.in/judis Page No.15 of 32 C.R.P. (PD) No.1995 of 2024
41. After a survey of all the authorities starting from Angamuthu Mudaliar till P.J.S.Jayarama Chettiyar, he held that it is the duty of the Court, having regard to the scheme of Sections 2 and 3 of the Partition Act, 1893, to either stay the sale under Section 2 or to decide the application under Section 3 before allowing the sale to be held. The learned Judge went on to hold as follows:
"... it is not possible to limit the point of time upto which an application could be made under Section 3 as the time when the sale is actually held. It must be the time when the Court can no longer give any directions of sale under Section 3. It can no longer do so after the confirmation of the sale. Therefore, the time must extend upto the point of time when the Court confirms the sale which is actually held. "
30. This view is in tune with the Rules for partition that has been framed by this Court. These Rules are found under Part II - Chapter III of the Civil Rules of Practice and Circular Standing Orders issued by this Court to guide the Subordinate Civil Courts in the State of Tamil Nadu. As per Rule 9, where a sale is ordered, it is the duty of the Court to follow Rules 193 to 205 of Chapter IX of Part I of the Civil Rules of Practice. The only exemption granted under Rule 9 is that Rule 199 of Chapter IX will not apply to a sale under the Partition Act. Under Rule 196 of the Rules framed by this Court, it is the duty of the Court to determine the lots, the manner of advertising, the probable expenses and also to settle the proclamation of sale as required under Form 69 and Form 70 found in the said Rules. In other words, it is the duty of the Court to fix the upset https://www.mhc.tn.gov.in/judis Page No.16 of 32 C.R.P. (PD) No.1995 of 2024 price, as well as to decide whether the property should be sold at one go or in lots, and to fix the date and place of the sale.
31. I add here that an order under Section 2 is dependent on a further order that might be passed under Section 3. The moment a request is made under Section 3, the order for sale under Section 2 should necessarily await the verdict of the proceedings under Section 3.
32. The position that arises out of this discussion is as follows:
(i) There is no necessity to file a formal application under Section 3 of the Partition Act. An intimation by the party, who is not an applicant under Section 2, to the Court that he is willing to make the purchase under Section 3 of the Partition Act is sufficient.
(ii) An application under Section 3 is maintainable at any stage of the proceedings, prior to the confirmation of the sale in favour of the auction purchaser.
(iii) Prior to ordering the public sale, the Court should verify from the parties, other than the applicant under Section 2, whether they are willing to purchase all the shares of the other co-sharers.
(iv) In case an order of sale is made under Section 2 and if a sale is held and confirmed, then an application under Section 3 is not maintainable.
https://www.mhc.tn.gov.in/judis Page No.17 of 32 C.R.P. (PD) No.1995 of 2024
33. Keeping the position of law that has been found above in mind, I turn to the facts of the present case.
Defects in the orders passed by the Trial Court
34. The first and primary defect in the order passed by the Learned Judge was entertaining the application in I.A. No. 5746 of 2018 and allowing the same as prayed for. In terms of Section 2 of the Partition Act, in such an application, there cannot be a direction to the other shareholders to purchase the share of the applicant. That would arise only on filing of an application under section 2 and one of the shareholders undertakes to buy the shares of the others under Section 3. A mere glance of the prayer extracted in the beginning of this order shows that the plaintiff has rolled into one, the prayer under Section 3 and the prayer under Section 2. If an application is filed under Section 3, the Court has no other option than to value the property, determine the value of the share of the other sharers and to offer the same for purchase to the applicant under Section 3. Instead, in the present case, the Learned Judge directly ordered public auction with the right of pre-emption enforceable during the auction.
35. Secondly, the report of the Advocate Commissioner dated 01.08.2023 shows that instead of complying with the directions given by the Court, he had sent notice to the parties to the suit seeking their interest to participate in the auction. The order of the court below shows that no such direction was given to the Commissioner. He was to https://www.mhc.tn.gov.in/judis Page No.18 of 32 C.R.P. (PD) No.1995 of 2024 conduct the public auction subject to the right of pre-emption of the parties at the time of conduct of the sale. As discussed above, the order passed by the Learned Judge falls foul of Sections 2 and 3 of the Partition Act, and this mistake committed by the court was compounded by the procedure followed by the Advocate Commissioner.
36. Nevertheless, it has to be pointed out earlier that the sale has not been confirmed. Therefore, no rights have crystallised in favour of the auction puchaser.
37. Thirdly, even before the sale was held, the civil revision petitioner filed a memo on 6th July 2023 before the Trial Court expressing her willingness to purchase the property and to deposit the sum pertaining to the valuation of 7/16 th share (share of the plaintiff) and 2/16th share (share of the 1st defendant) to the Court after deducting her 7/16th share as per the value quoted by the Advocate Commissioner in his report.
38. The learned Trial Judge called for objections on this memo. This is another error committed by the Trial Court. It should have taken note of the Judgment of the Supreme Court in R. Ramamurthi Iyer's case cited supra and should have made an order allowing the second defendant to purchase the share of the other shareholders at the valution fixed by court. Instead, it passed an order reserving the right of pre-emption and enabling the petitioner to participate in the public auction. Such a course of action is not one contemplated under Section 3 of the Partition Act. As held by the Supreme https://www.mhc.tn.gov.in/judis Page No.19 of 32 C.R.P. (PD) No.1995 of 2024 Court, the trial court should have ordered for valuation of the share of the other co- sharers.
39. As seen from the Judgment of the Supreme Court, the Trial Court, upon receiving the memo invoking Section 3 of the Act, should have immediately proceeded further under that Section, instead it had ordered public auction. Public auction would arise only if an application under Section 3 of the Act had not been made. Hence, the order for public auction is, on the face of it, contrary to the position of law enunciated by the Supreme Court.
40. The next and most incurable error committed by the trial Court was in passing an order and issuing a warrant to the Commissioner directing him to fix the upset price for the property. The warrant issued by the Court on 31.01.2023 reads as follows:
“In pursuance of the order passed in the present application, for the purpose of this suit after giving notice to the respective counsels and parties that the Advocate Commissioner is to inspect the Suit schedule property and take appropriate steps to sell the Suit schedule property in public aution after fixing the correct upset price and while conducting public auction pre-emption right should be given to the parties to the suit to purchase the Suit schedule property. The Advocate Commissioner shall ensure the provisions of C.P.C., before and at the time of conducting public auction of the Suit schedule property.”
41. Fixation of upset price is the duty of the Court. This is in terms of Order XXI https://www.mhc.tn.gov.in/judis Page No.20 of 32 C.R.P. (PD) No.1995 of 2024 Rule 66 of the Code of Civil Procedure, as amended by this Court. It governs the State of Tamil Nadu and Puducherry. This Section was the subject matter of interpretation by the Supreme Court in M.L.Mubarak Basha and others v. Muni Naidu, (1997) 4 SCC
153.
42. The Supreme Court held that it is the duty of the Court to fix the upset price. It cannot delegate that function to the Commissioner who conducts the sale. The Trial Court should not have permitted the Advocate Commissioner to fix the upset price. The Court, in terms of the Code of Civil Procedure and Rule 9 of the Partition Rules read with Rules 193 to 205 of Chapter IX Part I of Civil Rules Practice and Circular Standing Orders, should have fixed the upset price by itself. Fixation of upset price by the Advocate Commissioner is an incurable defect. When it is the duty of the Court to fix the upset price and such a duty is incapable of being delegated to any person including an officer of the Court-the Advocate Commissioner, the sale held has to go. Owing to these two major infractions, the very sale that has been held by the Advocate Commissioner is void. Also see, The Self Respect Sangam, Erode v. Nagammal, (1970) 83 LW 199.
43. If the sale made by the Advocate Commissioner is not in accordance with the Code of Civil Procedure and Rules that have been framed by this Court, then the sale that has been held under Section 2 would not stand in the way of considering an https://www.mhc.tn.gov.in/judis Page No.21 of 32 C.R.P. (PD) No.1995 of 2024 application under Section 3. Instead of directing the civil revision petitioner to purchase the shares on the accepted valuation of the property arrived at by the Advocate Commissioner, the Court proceeded to dismiss the application in I.A.No.3 of 2023.
44. There is no dispute between the parties on the valuation of the properties. The Court can direct an Advocate Commissioner to value the property. But when it comes to the fixation of upset price, the court should have taken into consideration the objections on the valuation and thereafter should have fixed the upset price by itself before directing the Advocate Commissioner to continue the auction on the upset price so fixed. Unfortunately, none of these procedures seem to have been followed in the present case. Fortunately, the sale was not confirmed by the Court. If the sale has not been confirmed by the Court, no right has been crystalised in favour of the auction purchaser.
45. It is pertinent to point out here that on 07.11.2023, the petitioner filed an application invoking Section 3 of the Partition Act. The learned Trial Judge ordered notice in the application and received a counter from the other parties. Even in the counter, it was admitted by the contesting respondent that the civil revision petitioner/second defendant had stated that she is willing to purchase the property prior to the auction. However, the Court went on to dismiss the application holding that as provisions of Order XXI Rule 89 had not been complied with, the petition is not https://www.mhc.tn.gov.in/judis Page No.22 of 32 C.R.P. (PD) No.1995 of 2024 maintainable. It curiously held that though the petitioner's right over the property should be considered, the Court is not in a posititon to exercise its discretion as the petitioner did not express her intention to deposit the entire sale amount. This view of the learned Trial Judge is opposed to the express terms of Section 3 of the Partition Act.
46. As seen from the provisions extracted above, a person who applies under Section 3 need not deposit the entire amount, but should be willing to buy the shares of the parties asking for the sale under Section 2. A perusal of the prayer in I.A.No.3 of 2023 shows that the civil revision petitioner was willing to pay a sum of Rs.57,29,167.33 after deducting her share of Rs.52,70,833. The question of the civil revision petitioner depositing the entire amount of 1,10,00,000/- would not arise here because this amount not only includes the value of the shares of the respondents 1 and 2, but also includes the value of the civil revision petitioner's share. Therefore, the prayer ought to have been acceded to by the Trial Court.
47. I will also look at this from a Consitutional angle. The Constitution of India declares that right to property is a consitutional right. This is by virtue of Article 300A of the Constitution of India. The same can be deprived only by the authority of law. An auction sale is one such means. The Code of Civil Procedure has engrafted in itself several provisions in order to give ample opportunities to a debtor to retain his right to property by discharging the decree even after the sale has been held. https://www.mhc.tn.gov.in/judis Page No.23 of 32 C.R.P. (PD) No.1995 of 2024
48. Order XXI Rule 89 of the Code of Civil Procedure is one such example. Even after the sale, the judgment debtor is granted breathing time to pay the amount for which the property has been sold together with the poundage and general stamps to retrive his property. If the sale has not been held in accordance with law, then the provisions of Order XXI Rule 90 come to his rescue. Similarly, under Order XXXIV, even if a sale has been held, the mortgagor is given the right to retain the property by discharging the decree. The courts have interpreted these provisions widely to extend this right as long as the decree is still in jeopardy. See, U.Nilan v. Kannayyan, (1999) 8 SCC 511.
49. If the law has given an opportunity to a debtor to save the property from going into the hands of a third party i.e., an auction purchaser, the court should lean in favour of the person who is willing to get the property rid of the litigation. Though the Partition Act is a pre-Constitutional legislation, Section 3 and Section 4 have to be viewed in the light of Article 300A. This is because in case of a public auction, the sharer loses his right to retain the property, and all that he gets is a share in the sale proceeds. Therefore, taking into consideration the Constitutional principle on Right to property, as well as the purpose for which the Partition Act had been enacted, a Court should strictly enforce the Partition Act, the Rules that have been framed by this Court along with the requirements of the sale as per the Code of Civil Procedure, in order of such a sale being brought under the umbrella of “authority of law” found under Article https://www.mhc.tn.gov.in/judis Page No.24 of 32 C.R.P. (PD) No.1995 of 2024 300A.
50. When a public sale is being held, the law demands that the deprivation of the property of an individual should be strictly in accordance with law. If there is an infraction in the manner in which the auction is to be held, this constitutional right is infringed. The opportunity granted to a debtor in case of a mortgage under Order XXXIV Rule 5 or a money decree under Order XXI Rule 89 would certainly be available to a co-sharer. The Partition Act recognises the right of a co-sharer, in case it is a dwelling house, to retain the family holding by purchasing the shares of the other sharers. This is yet another example of Parliament and the Courts recognising the right to property.
Conclusion
51. I have discussed above, the purpose for which the Partition Act was brought in the Indian Jurisprudence. There is no dispute amongst the parties that the property involved is a dwelling house belonging to the civil revision petitioner and the respondents 1 and 2. When it comes to a dwelling house, the observations of Sir Rash Behari Bose, the architect behind the enactment of the Partition Act, are relevant. It has been aptly reproduced by a Division Bench Calcutta High Court in Nritya Gopal Samanta v. Pran Krishna Dan and Ors., AIR 1952 Cal 893. It reads follows:
“The strong attachment of my countrymen to landed property https://www.mhc.tn.gov.in/judis Page No.25 of 32 C.R.P. (PD) No.1995 of 2024 specifically when it is ancestral, should make us extremely cautious in replacing in any particular case the usual remedy of an equal partition by sale of the property and a division of the proceeds. We cannot, therefore, proceed there too warily and accordingly, the power which it is proposed to invest the Court is only given subject to very stringent conditions and only to the extent necessary to meet the acknowledged evil.” That in this Country, the people have a lot of attachment and sentiments to the property in which they reside and that the Court should take a view to protect that sentiment, in case one of the sharers, come forward to purchase the shares of the remaining co-owners is the bedrock on which the Partition Act stands. A similar provision is found under Section 44 of the Transfer of Property Act.
52. When there is no dispute that the property is a dwelling house and when one of the sharers had approached the Court even before the sale had been conducted under Section 2, the Court should have come to her rescue and should have given her an opportunity to purchase the property at the agreed valuation, instead it had ordered public auction. Even in the matter of sale, though the Rules require the court to fix the upset price, unfortunately, the learned Trial Judge delegated that power to the Advocate Commissioner.
53. In the light of the above discussion, I am unable to sustain the sale under Section 2 of the Partition Act, when an application under Section 3 was pending. https://www.mhc.tn.gov.in/judis Page No.26 of 32 C.R.P. (PD) No.1995 of 2024 Consequently, as the 2nd defendant has offered to purchase the shares of the other sharers and since there is no dispute on the valuation arrived at by the Advocate Commissioner, the Civil Revision Petition is allowed and she will be entitled to purchase the shares of the other sharers.
54. On going through the entire papers including the records from the trial court, it became clear that the plaintiff, who is not in possession of the property, has been knocking on the doors of this Court seeking her share for over a decade and a half. If I were to merely set aside the order and send it back, it would only prolong the agony of the litigants. Therefore, I called the 2nd defendant/Civil Revision Petitioner to come with demand drafts for the shares of the plaintiff as well as the interest portion which the auction purchaser will be entitled to for the amounts that he had deposited in the Court.
55. It is a settled position of law that equity must be adopted in all partition cases when it is inconvenient to divide a property. A person who does not get actual possession of the property is entitled to be compensated. Hence, the direction to pay 7.5% on the amount deposited.
56. Mr.Nissar Ahmed at that stage would submit that the amount deposited by the auction purchaser is already in an interest bearing account and therefore, his interest is safeguarded. I was not willing to accept this submission. I want to balance the interest of https://www.mhc.tn.gov.in/judis Page No.27 of 32 C.R.P. (PD) No.1995 of 2024 the 2nd defendant and that of the opposing respondents. Therefore, I directed Mr.Nissar Ahmed's clients to bring a demand draft for a sum of Rs.52,70,840/- being the amount equivalent to the share of the plaintiff and a further demand draft to the tune of 7.5% on Rs.1,10,00,000/- for which the property was purchased by the 3rd respondent. Consequently, the matter stood adjourned to today.
57. Today (22.08.2024), Mr.Nissar Ahamed has brought 13 Demand Drafts amounting to Rs.52,70,840/- in favour of the plaintiff and an another Demand Draft to the share of Basheerunnissa, the legal heir of the 1st defendant to the tune of Rs.4,58,340/- and 2 Demand Drafts amounting to Rs.8,25,000/- in favour of the 3rd respondent-auction purchaser.
58. At this stage Mr.Anantha Sekar submits that the auction purchaser had instructed him that he is not interested to receive the Demand Drafts from the 2 nd defendant.
59. Be that as it may, the 2 nd defendant has complied with the requirements of Section 3 of the Partition Act and has also brought forth the amounts which the other sharers and the auction purchaser are entitled to. The Demand Draft for Rs.52,70,840/- has been received by Mr.D.Nellaiappan, today. Therefore, no further order is necessary for deposit of the amount in favour of the plaintiff. Since the auction purchaser has https://www.mhc.tn.gov.in/judis Page No.28 of 32 C.R.P. (PD) No.1995 of 2024 refused to receive the interest amount, the 2nd defendant – Civil Revision Petitioner will be entitled to deposit the said Demand Drafts to the credit of O.S.No.2371 of 2010 on the file of the XIII Assistant Judge, City Civil Court, Chennai. She shall also deposit a sum of Rs.4,58,340/-, which is the share of the 3rd defendant – Basheerunnissa to the credit of O.S.No.2371 of 2010.
60. At this stage, Mr.Nellaiappan, pointed out that the plaintiff had expended a sum of Rs.1,22,000/- towards payment of Advocate Commissioner's fee and for publication for sale of the property. The second defendant obviously cannot have a free ride and will have to share this expense also along with the planintiff. The Civil Revision Petitioner, in addition to the aforesaid deposits, shall pay by way of a Demand Draft a sum of Rs.61,000/- being 50% of the expense that has been incurred by the plaintiff for the process as stated above. He further adds that since no interim order was granted in this Revision, the Learned Judge on 30.04.2024 allowed the final decree application. As this Revision is being allowed, the order dated 30.04.2024 which is a consequent order to the order impugned in this Revision cannot be sustained.
61. The learned trial judge shall pass the consequential order in the final decree application recording the payments made by the civil revision petitioner. The second respondent is entitled to withdraw the amounts deposited by the civil revision petitioner. The third respondent, auction purchaser, can withdraw the amount deposited pursuant to https://www.mhc.tn.gov.in/judis Page No.29 of 32 C.R.P. (PD) No.1995 of 2024 this order, together with the auction amount deposited in court with accrued interest, if any.
62. In fine, the order of the learned XIII Assistant Judge, XIII Assistant City Civil Court, Chennai, in I.A.No.3 of 2023 in I.A.No.5746 of 2018 in I.A.No.14131 of 2016 in O.S.No.2371 of 2010 dated 11.03.2024 is set aside. Accordingly, this Civil Revision Petition stands allowed with the above directions.
No costs. Consequently, the connected miscellaneous petition is closed.
22.08.2024 Jer/nl Index : Yes / No Internet : Yes / No Speaking order / Non-speaking order Neutral citation : Yes / No To The XIII Assistant Judge XIII Assistant City Civil Court, Chennai District.
https://www.mhc.tn.gov.in/judis Page No.30 of 32 C.R.P. (PD) No.1995 of 2024 V. LAKSHMINARAYANAN nl https://www.mhc.tn.gov.in/judis Page No.31 of 32 C.R.P. (PD) No.1995 of 2024 C.R.P. (PD) No.1995 of 2024 and C.M.P.No.10857 of 2024 22.08.2024 https://www.mhc.tn.gov.in/judis Page No.32 of 32