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Judgment
P.K. Misra, J.—Defendant is the appellant against a confirming decision.
The undisputed facts and circumstances giving rise to the present appeal are as follows : The suit for partition was filed by plaintiff- respondents in respect of Ac. 0.917 decimals of land, as described in the plaint Schedule. The disputed property was the joint family property of two brothers Balamukund Mohanty and Ghanashyam Mohanty. Plaintiffs 1, 2, and 3 are sons of late Balamukunda Mohanty; plaintiff No. 4 and the sole defendant are the sons of late Ghanashyam Mohanty. A preliminary decree for partition was passed declaring half share of plaintiffs 1, 2 and 3 and l/4th share each of plaintiff No. 4 and the defendant. Subsequently, in final decree proceeding, the western 1/4th portion of the disputed property (area of Ac. 0.22.91/4 decimals) fell to the share of the defendant. The report of the Commissioner dividing the property was accepted by order dated 6.7.1981.
Thereafter, the plaintiffs filed a petition purporting to be one u/s 4 of the Partition Act seeking to purchase the portion of the property which had fallen to the share of the defendant on the ground that the defendant had objected to the Commissioner''s report that it would not be convenient or suitable to stay in the portion allotted to the defendant. Objection was filed by the defendant stating that he had no other place to stay and he was not willing to sell the share. On the other hand, the defendant in his objection offered to purchase the 3/4th shares of the plaintiffs. The trial Court by order dated 19.8.1981 allowed the application of the plaintiffs and directed that the l/4th share of the defendant shall be sold to the plaintiffs for consideration of Rs. 2,100/-. In appeal by the present appellant, the appellate Court held that the impugned order of the trial Court being not an order Under Sections 2 and 3. or 4 of the Partition Act was not appealable as decree as contemplated u/s 8 of the Partition Act. It was further observed that even assuming that appeal was maintainable, the order passed by the trial Court should not be interfered with.
The application of the plaintiff-respondents is purported to be one u/s 4 of the Partition Act. However, a bare perusal of the provisions of Section 4 makes it clear that the provisions contained therein have no application to the facts and circumstances of the case. Section 4 of the Partition Act is applicable where any co-sharer intends to purchase the share sold by a co-sharer to stranger- purchaser in respect of undivided dwelling house. It is not understood as to how application purporting to be u/s 4 could be filed by the plaintiffs when there was no question of any alienation by a co-sharer to stranger-purchaser. As a matter of fact, the lower appellate Court has also found that provisions of Section 4 are not at all applicable.
It is apparent that the plaintiffs wanted to buy out the share of the sole defendant in accordance with Section 3 of the Partition Act. Section 3 is inter-related to Section 2 of the Partition Act. For convenience, the provisions contained in Sections 2 and 3 of the Partition Act 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 share-holders therein or oh 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, if it thinks fit, on the request of any of such share holders interested individually or collectively to the extent of one moiety or upwards, direct a sale of the property and a distribution of the proceeds.
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 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."
Section 3 has got no independent applicability unless an application u/s 2 is made. This is clear from the opening words of Section 3 to the effect "if, in any case in which the Court is requested, under the last foregoing section......" The provisions contained in Sections 2 and 3 are to be read together and the provisions contained in Section 3 appear to be corollary of the provisions contained in Section 2. In order to attract the provisions contained in Section 2, the following aspects are to be fulfilled :.
(i) The request is to be made by a shareholder Or number of shareholders interested individually or collectively to the extent of at least a moiety of the property, that is to say, at least half of the property;
(ii) The Court must be of the opinion that by reason of the nature of the property, or the number of shareholders or for such similar reasons, division of the property cannot be reasonably or conveniently made; and
(iii) Sale of the property and distribution of the proceeds should be more beneficial for all the shareholders.
The provisions contained in Section 3 of the Act make it clear that in such an eventuality, any other shareholder may apply to buy the share or shares of the party or parties seeking for such sale. A careful consideration of the provisions contained in both the sections makes it clear that the persons who have sought the leave of the Court u/s 2 of the Act for selling the entire property cannot have the option of buying out the share of other shareholders. On the other hand, option is given to other shareholders to buy out the shares of the persons who have made the application u/s 2 of the Act.
To avoid any confusion in the matter, the position of law in Sections 2 and 3 of the Partition Act can be clarified as hereunder :
(a) Section 3 cannot be exercised bereft of any application u/s 2;
(b) Application u/s 2 can be made by a shareholder or some shareholders collectively if his or their share is a moiety or more than that, that is to say, half or more than half;
(c) If any such application is made and it appears to the Court that it would not be convenient to divide the property and it would be beneficial to all the co-sharers if the property is sold, such a direction can be made;
(d) When any such application u/s 2 is made, it would be open to the other co-sharer or co-sharers to buy out the share or shares of the party or parties asking for such sale (emphasis given);
(e) Where two or more shareholders apply separately to buy out the share as envisaged in Section 3(1), the Court shall order the sale of the share or shares to the shareholder who offers to pay the highest price above the valuation made by the Court.
In the present case, even though the defendant had originally objected to the report of the Commissioner regarding allotment of shares on the ground that it would not be convenient for him to remain in the portion allotted to him, he had not made any application u/s 2 of the Partition Act. As a matter of fact, since the defendant had only 1/4th share, he could not have made any application u/s 2 and as such application can be made by a shareholder or shareholders having a moiety of the property (at least half the property). If the defendant would have been otherwise eligible to make such application u/s 2 and the Court would have accepted such application, then the question of buying out the share of defendant by other co- sharers could have cropped up. In the present case, the facts are otherwise. The plaintiffs themselves applied that the property should be sold on the ground that it would not be convenient to divide the property. Option was rather available to the defendant to buy out the shares of the plaintiffs. Possibly, without understanding the implication of the provisions contained in Sections 2 and 3 of the Partition Act, the application had been made by the plaintiffs to buy out the share of the defendant.
Since defendant in his objection had also offered to buy out the shares of the plaintiffs and had reiterated such request in this Court, the case was adjourned to enable the learned counsel for plaintiff-respondent to obtain instruction from the plaintiffs indicating about their willingness to sell their shares of the property to the defendant. Subsequently, the learned counsel on instruction submitted that the plaintiffs would not like to sell their, shares.
In view of the aforesaid analysis of the provisions of Sections 2 and 3 of the Partition Act, it is evident that the course adopted by the trial Courts was wholly unjustified. If at all the application of the plaintiffs can be construed to be one u/s 2, and the Court was otherwise of the opinion that it would not be convenient to divide the property, plaintiffs who had filed such application could not have opted for buying out the share of the defendant. Rather, the choice would have been of the defendant to buy out the shares of the plaintiffs. Moreover, in the present case, the lower appellate Court has opined that it was not inconvenient to divide the property. That apart, the question of selling the share of the defendant could not have arisen in the facts and circumstances of the case, as application u/s 2, if at all it can be so construed, was made by the plaintiffs. Even though the defendant-appellant had opted to buy out the share of the plaintiffs and has reiterated such plea in the Second Appeal, having regard to the facts and circumstances of the case, the unwillingness of the plaintiffs to sell their shares and keeping in view the fact that their application was possibly made on the basis of a misconception, the shares of the plaintiffs need not be sold to the defendant.
The next question is as to whether the appeal before the lower appellate Court and consequently, the present Second Appeal are maintainable or not. There is no doubt that Section 4 of the Partition Act had no application. However, the trial Court seems to have exercised jurisdiction u/s 3 of the Partition Act by directing sale of the share of the defendant in favour of the plaintiffs. In view of the provision contained in Section 8 of the Partition Act, any order purporting to be Under Sections 2. 3, or 4 of the Act must be deemed to be a decree and appealable as such. The lower appellate Court while holding that Sections 2 and 3 or 4 were not applicable, committed an illegality in holding that the appeal was not maintainable.
For the aforesaid reasons, the Second Appeal is allowed and the direction of the trial Court contained in order dated 19.8.1981 which appears to have been confirmed by the lower appellate Court, is set aside. It is made clear that the order dated 6.7.1981 accepting the Commissioner''s report, if not otherwise challenged or set aside, shall remain operative. There will be no order as to costs.