Document Fragment View

Matching Fragments

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."

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 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.

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, 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.