S.P. Arockiadass vs S.P. Rajan and Others

M. Venugopal, J.—The petitioner/defendant has projected this Civil Revision Petition as against the order dated 20.02.2007 in I.A. No.

8138 of 2006 in O.S. No. 5165 of 2001 passed by the XVII Assistant Judge, City Civil Court, Chennai, in dismissing the application filed by the

petitioner/defendant under Sections 2 and 3 of the Partition Act.

The trial Court, while passing orders in I.A. No. 8138 of 2006, dated 20.02.2007, has interalia opined that ''the averments in the petition are

not to be accepted presently, based on the present circumstance and also the amount is not in accordance with the market value in regard to the

suit property and resultantly dismissed the application''.

The learned Counsel for the revision petitioner/defendant urges before this Court that the impugned order passed in I.A. No. 8138 of 2006,

dated 20.02.2007 suffers from serious infirmity or patent illegality and because of the simple fact that the trial Court has assigned an erroneous

reason among other things mentioning that the amount in spite of the suit property is not in accordance with the present market value of the

property and accordingly has dismissed the application and the said view taken by the trial Court is not in consonance with the provision of the

Partition Act and therefore, in the interest of justice, the same has to be allowed.

At this stage, the learned Counsel for the revision petitioner cites the decision of the Honourable Supreme Court in R. Ramamurthi Iyer Vs. Raja

V. Rajeswara Rao, wherein at Paragraph 13, it is observed as follows;

13.In the argument of the learned Counsel for the appellant emphasis has been laid on the fact that in the present case the Court did not give any

finding that the property was not capable of division by metes and bounds. It is thus pointed out that the essential condition for the application of

Section 2 of the Partition Act had not been satisfied and Section 3 cannot be availed of by the respondent unless it had first been found that the

property could be put to sale in the light of the provisions of Section 2. This submission has hardly any substance inasmuch as the trial court had

prima facie come to the conclusion that a division by metes and bounds was not possible. That was sufficient so far as the proceedings in the

present case were concerned. The language of Section 3 (sic Section 2) of the Partition Act does not appear to make it obligatory on the court to

give a positive finding that the property is incapable of division by metes and bounds. It should only ""appear"" that it is not so capable of division. It

has further been contended that the respondent had maintained throughout that the property was capable of division. He could not, therefore, take

advantage of the provisions of the Partition Act. Further he never made any proper application invoking the provisions of Section 3 of the Partition

Act and all that he said in his written statement, was that in case the court held that the said property was incapable of division into two shares he

was ready and willing to buy the plaintiff''s share in the suit at a valuation to be made in such a manner as the court might think proper. In our

opinion, this was sufficient compliance with the requirement of Section 3 of the Partition Act. Section 3(1) does not contemplate a formal

application being filed in every case. The words employed therein simply mean that the other shareholder has to inform the court or notify to it that

he is prepared to but at a valuation the share of the party asking for sale. In the written statement even if it was maintained that the property was

not (sic) capable of division by metes and bounds the alternative prayer was necessarily made in para 7 which would satisfy the requirements of

Section 3 of the Partition Act.

In fact, recourse to Section 2 of Partition Act can be resorted to only when a sale has been applied for by the shareholder or shareholders to the

extent of one moiety of the property or more. Section 3(2) of the Partition Act directing that the entire property might be put in auction applies only

where more than one co-sharer other than a person who has asked for sale u/s 2 desire to buy the share of the party who has asked for sale.

It is to be borne in mind that only when there is an application by the holder of large share for sale u/s 2 of the Partition Act that the co-sharer

can apply u/s 3. Thus, the less shareholder can apply to purchase the right of the co-share holders. Further, unless the share of the applicant u/s 3

of the Act is established, no order can be made upon his application directing valuation of property.

In Mrs. Malati Ramchandra Raut and others Vs. Mahadevo Vasudeo Joshi and others, Page 700 at Page 702, it is observed that;

The valuation though made subsequently has to be made with reference to the time at which the right arose which in the present case, has found by

the Single Judge was on 05.07.1972, when the defendants filed their affidavit seeking leave to buy, or at any rate on 09.10.1972, when they filed

written statement reiterating that request.

As a matter of fact, a Court may take evidence and call upon the litigants to furnish materials or the Court may Suo Moto appoint the person

who in its opinion is competent to make the correct valuation. The Court can receive parties objections in this regard. Aslo, the Court can make a

fresh valuation in spite of the valuation made by the Commissioner, as per Section 3 of the Partition Act indeed the Court is to bear in mind the

interest of all sharers in fixing such a price. In the instant case on in such a procedure has not been resorted to by the Court.

From the above citation, it is clear that a Court of Law has to take into account of the ingredients of the Sections 2 and 3 of the Partition Act in

right earnest whenever a Court of Law passes an order in this type of the application like the present one in I.A. No. 8138 of 2006, it has to

follow the Principles of Law enunciated scrupulously and by no stretch of imagination, it can observe that the value of the suit property is not in

accordance with the present market value of the property etc. in the vacum or void.

In short, after going through the order passed by the trial Court in I.A. No. 8138 of 2006, dated 20.02.2007, this Court is of the considered

view that the aforesaid observations of the trial Court that the value of the suit property is not in accordance with the present market value etc., is

not correct because the Court cannot determine the market value of the property in a vacum orvoid and resultantly, the trial Court taking a view of

dismissal of the Interlocutory Application is per se not correct in the eye of law and therefore, this Court is sitting in revision allows, this Civil

Revision Petition in the interest of justice.

In the result, this Civil Revision Petition is allowed and the order passed by the trial Court is set aside. The Trial Court is directed to restore the

same to its file within a week from the date of receipt of a copy of this order and after restoring the Interlocutory Application to its file, the trial

Court is directed to dispose of the I.A. No. 8138 of 2006 afresh on merits within a period of four weeks from the date of receipt of a copy of this

order in the manner known to law and to report compliance to this Court without fail.

It is made clear that the trial Court shall deal with the I.A. No. 8138 of 2006 afresh on merits in a dispassionate manner and uninfluenced with

any of the observation made by this Court in this revision.