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Cites 13 docs - [View All]
The Partition Act, 1893
Section 2 in The Partition Act, 1893
Section 3 in The Partition Act, 1893
The Code Of Civil Procedure (Amendment) Act, 1956
S. Ramamurthi vs V. Rangachari And Ors. on 29 April, 1974
Citedby 4 docs
Palanikumar Pillai vs Palanikumar Pillai And Ors. on 29 March, 1988
Palanikumar Pillai vs Palani Kumar Pillai And Ors. on 29 April, 1988
Pl. Ct. Sp. Subramanian Chettiar vs Meenakshi Achi And Others on 24 October, 1991
Mohamed Hussain Sulaiman Of Great ... vs State Bank Of India, Overseas ... on 17 August, 1993

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Madras High Court
Muthusamy Gounder vs A.P. Kaithamalai Gounder on 7 April, 1976
Equivalent citations: (1976) 2 MLJ 373
Author: P Gokulakrishnan

JUDGMENT

P.R. Gokulakrishnan, J.

1. The defendant in O.S. No. 515 of 1971 is the plaintiff herein. The respondent herein who is the plaintiff in O.S. No. 515 of 1971 filed in I.A. No. 1236 of 1974 under Order 26, Rules 13 and 14 of the Code of Civil Procedure to appoint a Commissioner to divide the suit property in accordance with the preliminary decree and to pass a final decree. In the affidavit filed in support of the petition, the plaintiff-respondent herein wanted appointment of a Commissioner to divide the suit property which consists of a rice mill and an open space or to sell it in auction. The petitioner herein in the counter-statement filed for I.A. No. 1236 of J974 inter alia contended that the suit property is easily divisible into two equal portions or at least approximately equal portions and as such there is no need to sell the suit property in auction.

2. The trial Court took up for determination as to whether the suit property can be conveniently divided into two equal shares by metes and bounds or whether the entire property has to be sold to the highest bidder and the proceeds divided among the sharers.

3. No doubt, the Commissioner has filed a report suggesting division of the property and adjustment as regards the money value thereof. The plaintiff-respondent herein filed objections to the Commissioner's report stating that the suit property is a rice mill with machineries like electric motor huller and also drying yard with godown constituting one unit, that the property is incapable of division, that the report of the Commissioner suggesting division of the suit property as though the suit property comprises only of immovable property is unsustainable in law and on facts and that the Commissioner has failed to note that it is impossible to enjoy the northern half without the southern half and vice versa. The respondent herein has further contended that the suit property has a good-will, that such good-will is not capable of estimation in money value and as such the Court may be pleased to order sale of the suit property inclusive of machineries, licences, permits, etc., between the parties to the suit and render justice.

4. The lower Court, after taking int6 consideration the Commissioner's report and the objections filed by the respondent herein, directed the Commissioner to sell the property among the sharers after giving one month's notice to the counsels of both the parties and the sueceisful bidder among the sharers shall be permitted to set off his share to the sale price and deposit the balance.

5. Aggrieved with the said order passed by the lower Court, the defendant has preferred this civil revision petition.

6. Mr. Section Gopalaratnam, the learned Counsel, appearing for the petitioner contended that, as per the Commissioner's report the property can be divided by metes and bounds and that the lower Court had no authority in law to direct a sale under the circumstances of the present case. The learned Counsel has also filed C.M.P. No. 13787 of 1975 under Section 3 of the Partition Act and Section I5I, Civil Procedure Code, praying that this Court may be pleased to order a valuation of the plaintiff's share of the suit property described in the preliminary decree and offer to sell the same to the petitioner at such valuation. The main contention pressed by Mr. Section Gopalaratnam, the learned Counsel, appearing for the petitioner is that the Court's powers are limited to the provisions of the Partition Act and that the Court cannot have any inherent jurisdiction apart from the said Act, According to the learned Counsel, the direction by the Court below to the Commissioner to sell the property among the sharers is beyond the powers conferred upon the Court. As per Section 2, the only power the Court has is to direct the sale of the property and distribute the proceeds thereof to the respective parties as per the provisions of Section 2 of the Act. Instead, the learned Counsel appearing for the petitioner states that the Court, without jurisdiction, directed the property to be sold in between the sharers. The learned Counsel also read Section 3 of the Partition Act and contended that the petitioner herein is entitled to file such an application to buy at a valuation the share of the party asking for a sale. In such a case, the Court shall fix the valuation of the share in such manner as it may think fit and offer to sell the same to the person applying under Section 3 of the Act at a price so ascertained. Hence the learned Counsel submits that since an application under Section 3 of the Partition Act has been tiled in C.M.P. No. 13787 of 1975 the Court can pass order as per the provisions contained in Section 3 of the Act.

7. Mr. M.R. Narayanaswami, the learned Counsel appearing for the respondent submitted that the property is incapable of division and that the Court has inherent jurisdiction apart from the Partition Act, to pass such orders as it deems fit in the interests of justice.

8. It is clear from the order passed by the Court below, which is under Order 26, Rules 13 and I4, Civil Procedure Code and Section 151, Civil Procedure Code that auction is directed to be held among the sharers. Clearly such direction is outside the purview of the Partition Act. Hence the main question that has to be decided is as to whether the Court has inherent jurisdiction, apart from the Partition Act, to pass order as it thinks just and convenient.

9. Mr. Section Gopalaratnam, the learned Counsel appearing for the petitioner cited the decision in O.S.A. No. 108 of 1966, dated 21st December, 1970 V. Rajeswara Rao v. Maheswara Rao (died) and Anr. to support his contention. The principal questions that arose for determination in the said appeal are: (1) whether the Court has an inherent power of sale of the property which is not capable of division apart from the provisions of the Partition Act and whether the plaintiff invoked only such inherent power of Court and not the power under Section 2 of the Partition Act (2) whether the plaintiff having invoked the jurisdiction of this Court under Section 2 of the Partition Act is entitled to withdraw his suit under Order 23, Rule 1, Civil Procedure Code, at the same time reserving his right to file a fresh suit on the same cause of Section (3) At what stage should the request under Section 2 be made; and (4) has the defendant, who invoked the jurisdiction of this Court under Section 3 of the Partition Act, an indefeasible right to compel the plaintiff to sell the plaintiff's half share to him at the valuation and prevent the plaintiff from withdrawing the suit? On these questions, the Bench of our High Court definitely held that no general power of sale can be spelt out from the provisions of the Act. On the other band, the implication is that the legislation did not intend to confer on the Court a power of sale, apart from the power conferred under the provisions of the Partition Act. In propounding this principle, the Bench of our High Court respectfully agreed with the view expressed in Nitya Gopal v. Pran Krishna which was later followed in Ghadhar Ghose v. Janaki Nath Ghose While doing so, the Bench also

dissented from the view expressed by a Bench of the Andhra High Court in Ramaprasada Rao v. Subbaramaiah (1957) 2 An. W.R. 488 : A.I.R. 1958 Andh. Pra. 647.

10. The Judgment in O.S.A. No. 108 of 1966 was confirmed by the Supreme Court in R. Ramamurthi v. V. Rajeswararao . The

Supreme Court has also made a specific mention to the effect that the Bench of our High Court considered as to whether the Court has inherent power of sale of the property which is not capable of division apart from the provisions of the Partition Act and whether the plaintiff invoked only such an inherent power and not the power under Section 2 of the aforesaid Act. No doubt the main discussion by the Supreme Court is on the validity of withdrawal of the suit under Order 23, Rule 1, Civil Procedure Code. But the Supreme Court, discussing the scheme of Sections 2 and 3, held "At the same time in order to prevent any oppressive exercise of this privilege those shareholders who did not desire a sale were given a right to buy the others out at a valuation to be determined by the Court." Thus it is clear that the Supreme Court has confirmed the view taken by the Bench of our High Court as regards the points stated above. Apart from this decision, Mr. S. Gopalaratnam also cited Sampathammal v. Veerammal .

11. Mr. M.R. Narayanaswami, the learned Counsel, appearing for the respondent tried to distinguish the judgment in O.S.A. No. 108 of I966 and also the decision reported in R Ramamurthi v. V. Rajeswararao . The learned Counsel submitted that the respondent herein did not invoke the jurisdiction of the Court under the Partition Act and as such the provisions of the Partition Act will not apply to the facts of this case. The learned Counsel also stated that when a Court has no suo moto jurisdiction to apply the Partition Act and when neither party has invoked the procedure laid down under the Partition Act, it cannot be said that the Court is powerless to effect a division of the property in the manner which it considers equitable in the circumstances of that particular case. Mr. M.R. Narayanaswami, the learned Counsel, further submitted that the Partition Act of 1893 is only to amend the existing law and that does not mean the power of the Court is only within the four corners of the Act. To substantiate his contention, the learned Counsel cited Subbamm v. Veerayya (1932) 61 M.L.J. 552 : 34 L.W. 730 : 136 I.C. 203 : A.I.R. 1932 Mad. 15 Ramaswami Naicker v. Nagammal (1970) 83 L.W. 199 V salambl v. Nataraja Chettiar (1975) T.N.L.J. 441 and Ramaprasada Rao v. Subbaramaiah (1957) 2 An. W.R. 488 : A.I.R. 1958 Andh. Pra. 647. The learned Counsel also submitted that the main questions that loomed large in O.S.A. No. 108 of 1966 and R. Ramamurthi v. V. Rajeswara Rao were with reference to the withdrawal of the suit under Order 23, Rule 1, Civil Procedure Code and as such any finding on the inherent powers of the High Court in respect of a, partition suit is only obiter and the same need not be taken as binding upon this Court. According to the learned Counsel, this Court can independently view the matter and give a decision as to whether the Court has inherent jurisdiction, apart from the Partition Act, to pass orders which it considers equitable in the circumstances of the particular case.

12. Subbama v. Veerayya (1932) 61 M.L.J. 552 : 34 L.W. 730 : 136 I.C. 203 : A.I.R. 1932 Mad. 15 is a judgment of a single Judge of this Court and as such the same cannot prevail over the Bench decision of the High Court rendered in O.S.A. No. 108 of I966. Ramaswami Naicker v. Nagammal (1970) 83 L.W. 199 is prior to the decision rendered in O.S.A. No. 108 of 1966, Vasavambal v.Nataraja Chettiar (1975) T.L.N.J. 441 rendered by a single Judge of this Court cannot have any effect in the light of the judgment rendered in O.S.A. No. 108 of I966. The Bench decision of the Andhra Pradesh High Court reported in Ramaprasada Rao v. Subbaramaiah (1957) 2 An. W.R. 488 : A.I.R. 1958 Andh. Pra. 647 has been dissented by our Bench in O.S.A. No. 108 of ]966. The various other decisions cited by Mr. M.R. Narayanaswami, the leared counsel, appearing for the respondent such as Ram Gopal v. Bhikamchand Shardaben Hirachand and Ors. v. Chandrason and Ors. I.L.R. 1966 Guj. 143 and Ramprasad v. Mt. Mukandi A.I.R. 1929 All. 443 cannot have any binding effect over this Court when especially a Bench of this Court in O.S.A. No. 108 of 1966 has decided this point.

13. It is clear from the discussion and the decision rendered in O.S.A. No. 108 of 1966 that the Court will have inherent powers, apart from the Partition Act, to pass orders in respect of a partition suit. I am in complete agreement with the arguments advanced by Mr. Section Gopalaratnam to the effect that O.S.A. No. 108 of 1966 is the authority for the proposition that the Court will not have any inherent powers apart from the Partition Act, in respect of partition suits?. Thus it is clear the Court below has exercised jurisdiction not vested in it by law. The lower Court ought to have decided the case as per the provisions of Section 2 of the Partition Act and should not have ordered auction of the suit property in between the sharers. In these circumstances, the order of the Court below is set aside and the matter is remanded to the file of the lower Court for the purpose of disposal afresh in accordance with law. In view of the remand I have made, the respondent herein is at liberty to move the Court below, when the matter is taken up for hearing, for any relief under Section 3 of the Partition Act. With this observation, C.M.P. No. 13787 of 1975 is dismissed. There will be no order as to costs.

14. I delivered the judgment in C.R.P. No. 2664 of 1975 on 19th March, 1976 Mr. M.R. Narayanaswami, the learned Counsel, appearing for the respondent in the above revision petition wanted this matter to be posted again to delete certain sentences in the judgment. Hence I directed this matter to be posted before me Mr. M.R. Narayanaswami pointed out that the sentence:

the lower Court ought to have decided the case as per the provisions of Section 2 of the Partition Act and should not have ordered auction of the suit property in between the sharers.

has to be deleted and instead, it must read:

The lower Court ought to have decided the case as per the provisions of the Partition Act and should have ordered auction of the suit property in between the parties.

Mr. Section Gopalaratnam, the learned Counsel, who appeared for the petitioner in the above revision petition, stated that the request made by the respondent herein before the Court below is only under Section 2 of the Partition Act and as such, the order dictated can stand as it is.

15. As far as the present case is concerned, I bestowed my attention only as to whether the Court has inherent power apart from the Partition Act to pass orders. I decided, following the Bench decision of our High Court, that the Court has no inherent powers, apart from the Partition Act, to pass orders in partition suits. Hence to state that the lowe Court has to decide the requeit made by the respondent herein under Section 2 of the Partition Act will, in effect, preclude the respondent from stating that his request is not under Section 2. When I mention this, I make it clear that it is open to the petitioner herein to press his view to the effect that the request made by the respondent herein is only under Section 2 With these observations, I modify the sentence stated above so as to read in the judgment rendered by me on 19th March, 1976, in, G.R.P. No. 2664 of 1975 as follows:

The lower Court ought to have decided the case as per the provisions of the Partition Act and should not have ordered auction of the suit property in between the sharers.

When I make this alteration in the judgment passed, I also make it clear that it is open to the petitioner to file a petition under Section 3 and agitate the matter before the Court below which will decide such petition on merits after giving opportunity for both the parties to place their respective contentions.