Angamuthu Mudaliar vs Ratna Mudaliar and Others

Krishnan, J.—This is an appeal against an order passed under the Partition Act IV of 1893. The plaintiff, who is the appellant before us, one

of the co-parceners of a family consisting of three co-parceners, brought a partition suit for his share. When the decree was passed in that suit we

find an order passed by the learned trial Judge by consent of parties that the property in suit, a house, should be sold under the Partition Act unless

the Official Referee found it convenient to divide it by metes and bounds. This was a consent order. The Official Referee afterwards found that it

was not convenient to divide the house into two halves and give one half share to the plaintiff and the other half to the defendants. It was therefore

decided to sell the property under the Partition Act, but in the order made for this purpose, the learned Judge, Coutts Trotter, J., did not make it

clear under what section of the Partition Act the sale was to take place. An application was subsequently made by the plaintiff u/s 3 of the Partition

Act claiming to buy the property at a valuation fixed by the Court. This was disallowed by Coutts Trotter, J., but, on appeal to the Appellate

Court, the late learned Chief Justice Sir Walter Salis Schwabe and Wallace, J., reversed that order and sent the case back to be disposed of

according to law. In remanding the case they did not order that action should be taken u/s 3 of the Partition Act but simply directed that the case

must be disposed of according to law.

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. The sale which was directed was a sale u/s 2 of the Partition Act. Section 3 begins by saying, "" If, in any case

where 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 the shares of the party or parties asking for a sale, the Court shall order a valuation."" It seems to us, therefore, that the proper time to apply u/s

3 is before a Court makes an order u/s 2, and after the request had been made by one of the parties that the property should be sold. Unless we

construe the two sections in this manner there will be much difficulty in applying them. Once a final order is made as between the parties that the

property should be sold u/s 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 u/s 3, as it is too late then to apply under that section. 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, the Court is bound under the section

to direct a valuation of the share of the party asking for sale and to find out what its proper value is, and the party who has offered to buy is entitled

to buy that share at that valuation. If he fails to do so, his application would be dismissed and he will be made responsible for costs under Clause

(3) of Section 3. Clause (2) provides for more than one party applying at the same time for leave to buy as provided in Sub-section (1) of Clause

(3). There is no difficulty in construing the section in this manner. We are not able to agree with the construction/put on Section 3 by Courts

Trotter, J., where he says that when an application is made for buying by one of the shareholders, any shareholder can ask that the property should

be sold to him at the valuation arrived at; if that view is taken, there will be no end of trouble between competing shareholders. It is clear that the

shareholder who offers to buy and at whose instance the valuation is made by the Court is the person who is entitled to buy. The words "" such

shareholders ""occurring in the latter part of Clause (1) of the section must necessarily mean the shareholder who applied for leave to buy. In this

case Section 3 does not apply. The parties have already agreed that the properties should be sold u/s 2 and that consent has not been set aside by

any order and is still in force.

One further difficulty in applying Section 3 in this case is that it is not shown that the defendant applied for the sale, for it is only then that his

share can be valued and dealt with u/s 3. The fact seems to be that both parties were present at the time when the decree was passed and agreed

to the sale being ordered and neither party actually made the application for sale. In these circumstances we direct that the property be sold by

public auction u/s 2 of the Partition Act''. Both parties will be at liberty to bid and set off their respective shares if they become purchasers. The

public will also have a right to bid at the auction.

It was argued that the plaintiff should be compelled to adhere to the bid that he made once before to the Official Referee of Rs. 10,000 for this

property ; but we think that that cannot be insisted upon, because the bid was made when it was not clear as to what the rights of the parties were.

The decree will be modified as above stated and the case, will go back to the Official Referee for disposal in the light of the above observations.

The appellant will pay to the respondent half of the taxed costs.