T.V.Aravindakshan vs T.V.Chandrika

C.S.Dias, J

The petitioners are the respondents 25 and 26 in I.A.No.4395/2009 in FDIA No.1721/1998 in O.S.208/1994 of the Court of the Principal Subordinate Judge, Thalassery. The respondents 1 and 2 in the original petition are the petitioners 2 and 3 in the above application, and the remaining respondents are the other respondents in the application. The respondents 28 to 42 are the legal representatives of the deceased respondents 3, 4 and 7. The parties are, for the sake of convenience and wherever the context so requires, referred to as per their status in the original petition.

The concise case of the petitioners, relevant for the determination of the original petition is:

(i) the petitioners were the defendants in the above suit and the legal representatives of the original plaintiff ― late Madhavi, who had filed the suit for partition. The court below passed a preliminary decree partitioning the plaint schedule properties into 14 equal shares. 1/14 share each was allotted to the plaintiff, defendants 1 and 2, defendants 3 and 8, defendants 9 and 10, defendants 11 to 16, defendants 17 to 22 and the remaining 8/14 shares were allotted to the group of the petitioners, i.e., defendants 23 to 26.

(ii) Late Madhavi filed FDIA No.1721/1998 to pass the final decree. An Advocate Commissioner filed Ext.P2 report. Madhavi objected to the report by filing I.A.No.4129/1999. The application was allowed, and the report was remitted. Thereafter, the Advocate Commissioner filed Ext.P4 revised report. Madhavi and a few other respondents again filed I.A.Nos.931/2003 (Ext.P5) 932/2003 (Ext.P7) to remit Ext.P4 revised report. The petitioners and respondents 12, 23 and 24 objected to the same by filing Ext.P6 counter statement. The court below, by Ext.P8 common order, allowed Exts.P5 and P7 applications and remitted the report to the same advocate commissioner with a direction to conduct an auction among the sharers to assess the value of the school situated in item No.3 property.

(iii) Pursuant to Ext.P8 order, the Advocate Commissioner filed Ext.P9 revised report and plan. In the meantime, Madhavi died. The respondents 1 and 2, the legal representatives of Madhavi, filed Ext.P10 application to set aside the Ext.P9 plan and report. The petitioners and other respondents objected to the same by filing Ext.P11 counter statement. However, the court below, by the impugned Ext.P12 order, set aside Ext.P9 revised report, plan and share list, appointed a new Advocate Commissioner and directed a further enquiry to be conducted.

(iv) The court below has passed Ext.P12 order presumably because the Advocate Commissioner failed to conduct the auction as directed in Ext.P8. Neither the petitioners, the respondents, nor the Commissioner was aware of the direction in Ext.P8 order to conduct the auction.

(v) The court below has not considered the objections filed by the parties to Ext.P10 application. The school is situated in Item No.3 property and is the self-acquired property of late 'Komar'. After his death, Othenan and Govindan, the sons of Komar, are acting as the Managers of the school. As per the custom prevailing in the Kansan community, only male family members have the right over the property. The school was rightly allotted to the group of the petitioners by the Commissioner for valid reasons.

(vi) The court below has arbitrarily directed the auction. Exts.P8 and P12 orders are patently erroneous and wrong and are liable to be set aside. Hence, the original petition.

Heard; Sri.Cibi Thomas, the learned counsel appearing for the petitioners and Sri.C.P.Peethambaran, the learned counsel appearing for the respondents.

Sri.Cibi Thomas assailed Exts.P8 and P12 orders by contending that the court below has erred in ordering the auction of the School without a request from the sharers as mandated under Sections 2 and 3 of the Partition Act, 1893 (in short, ‘Act’) and has held by this Court in Sathi Lakshmanan.K.C v. P.C.Mohandas and others [2008 (4) KLT 401]. Moreover, the court below has ordered the auction to be held only to arrive at a proper value of the school, which is unheard of. The procedure adopted by the court below is irregular and untenable. He relied on the decisions of this Court in T.P.Joseph and others v. Ronald T.Dennison and others [MANU/KE/2811/2020] and C.T.Chummar v. C.T.Peter and others [MANU/KE/1943/2020] to bolster his submission that courts are bound to partition a property by metes and bounds and a deviation is permissible only if the court finds the course inequitable and impracticable, or the parties themselves seek the sale of the property by filing an application under S.2 of the Act.

Sri.C.P.Peethambaran defended Exts.P8 and P12 orders and argued that there is no illegality in the court below ordering an auction to be conducted to assess the value of the school. He relied on decisions of this Court in Maroli Balan v.Maroli Dannu & others [1986 KLT 919] and Kottayath Thekkekovilakath Sree Ranjini Amma Raja v. Padmini Kettilamma [2016 (3) KLT 526] to canvass the position that even the management of a school is partible. He urged that the original petition be dismissed.

The question is whether there is any illegality or impropriety in Exts.P8 and P12 orders.

Late Madhavi filed FDIA No.1721/1998 to pass the final decree. Initially, the Advocate Commissioner had filed Ext.P2 report, which was remitted back at the instance of Madavi and Ext.P4 revised report was filed. Madhavi and a few other respondents objected to the revised report by filing Exts.P5 and P7 applications. The court below, by Ext.P8 common order, allowed the applications and remitted the report to the same advocate commissioner with a direction to conduct an auction among the sharers to assess the value of the school situated in item No.3 property. But the Advocate Commissioner filed Ext.P9 revised report and plan without conducting the auction. The said report was objected to by respondents 1 and 2 through Ext.P10 application. By the Ext.P12 order, the court below set aside Ext.P9 revised report and appointed a fresh Advocate Commissioner to conduct the auction as directed in Ext.P8 order.

Sections 2 and 3 of the Partition Act of 1893, which are relevant for the determination of the question on hand, are extracted below:

"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 shareholders therein, or of 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 shareholders, the Court may, if it thinks fit, on the request of any of such shareholders 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 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.

Interpreting Sections 2 and 3 of the Act, this Court in Yunus C.M v. C.M. Aboobacker and Others [2016 (2) KHC 396 held thus:

“15. On the basis of the precedents discussed above the legal position may be said to be this:

1) To attract Section 2 of the Partition Act there should be a request for public sale on the part of one of the co-owners who is entitled to a moiety or upwards.

2) Only if Section 2 is attracted Section 3 of the Act comes into play.

3) Merely because one of the co-owners invoked the provision in Section 2 the court is not bound to order sale in public auction.

4) If the court does not proceed under Section 3 though one of the co-owners made a request under Section 2 of the Act, or if the Act is not applicable because there is no request under Section 2, the court can order sale of the property in exercise of its inherent power.

5) Such sale shall ordinarily be among the co-owners; but if the circumstances do not justify it, the property shall be sold in public auction."

Recently, this Court in Geetha.M.V and others v. M.V. Shery and others [2022 (1) KHC 224] has held as follows:

“3. It is not legally permissible to substitute money in the place of landed property while effecting partition by metes and bounds, except by way of "owelty" or moiety. The expression "owelty" stands for compensation to be given so as to adjust inequality of shares in a partition when allotment of equal shares found to be not workable, practicable or possible. Sometimes, while effecting partition, it will not be possible to divide the property by metes and bounds. A division of property must be effected without causing destruction to the intrinsic value of the property and it should be minimized to the negligible extent. If that is not possible, then only a division of property without affecting the intrinsic value of the property is permissible, though it will result in unequal shares, which can be adjusted by ordering "owelty". The very principle behind it is to preserve the property with its intrinsic value to the possible extent without causing destruction while effecting partition by metes and bounds. When partition by metes and bounds is not possible without causing destruction to the intrinsic value of property, the method of "owelty" can be applied viz., by substituting money in the place of property to the extent of making it equitable. That does not mean that instead of giving property, money can be substituted by ordering payment of value of the share. Further, a deviation from the final decree in the allotment of share by applying the principle of "owelty" can be done only when a division by metes and bounds becomes impracticable or impossible while maintaining the intrinsic value of the property, for which neither S. 2 nor S. 3 of the Partition Act is applicable. Necessarily, when large extent of property is involved and the division to be effected is lesser in number, it would not make the division by metes and bounds, either impracticable or impossible, wherein, the court cannot order division of unequal shares by providing "owelty", otherwise it would result in destruction of the very purpose and concept of "principle of owelty" and partition by metes and bounds. "Owelty" is really a practical solution available with the court to effect a final decree in accordance with the preliminary decree to the possible extent when division by metes and bounds found to be not convenient or practicable without causing destruction of the intrinsic value of the property.

A court sale of the property under S. 2 of the Partition Act, 1893 can be resorted to only when it appears by reason of nature of the property to which the partition to be effected or of the number of share holders therein or of any other special circumstances, a division of property cannot be reasonably or conveniently be made. Likewise, the benefit conferred under S. 3 of the Act to purchase the share of others by any sharer would come into play only when a sale was ordered under S. 2 of the Act. The condition enumerated therein are condition precedent so as to bring the matter within the sweep of either S. 2 or S. 3 of the Act. In the absence of any such conditions precedent, it is well within the jurisdiction of the court to adopt and apply any equitable method for division of property without the re-course under Ss. 2 and 3 of the Act, when a division by metes and bounds found to be not feasible. The method that is generally followed in such situation is the principle of "owelty" on payment of "just compensation". The expression "just compensation" shall not be misunderstood with the value of property that can be assessed by capitalization method, but it should reflect the actual value of the property with all legal incidents thereof.

The Apex Court in Badri Narain Prasad Choudhary & Others. v. Nil Ratan Sarkar [(1978) 3 SCC 30) while recognizing the necessity to satisfy the condition precedent so as to apply Ss. 2 and 3 of the Act, had laid down that a request of any of the share holders interested individually or collectively in the property in the suit to the extent of one moiety or upwards for the sale of property and its distribution is a sine qua non for directing a sale. But the request for sale envisaged by S. 2 of the Act must be one for public sale”.

Thus, the law has crystallised that the principle of owelty can be adopted only when a division by metes and bounds becomes impracticable or impossible. Still, a request by the sharers is a sine qua non to conduct such an exercise.

In the present case, Madhavi was dissatisfied with the division carried out by the advocate commissioner in Exts.P2 and Ext.P4 reports mainly on the allegation that the petitioners have been allotted the best share. Nevertheless, none of the sharers had requested the sale or purchase of the shares.

The court below, without entering a finding that a division by metes and bounds is impracticable or impossible suo-motu, by Ext.P8 common order, directed the advocate commissioner to conduct an auction among the sharers to assess the value of the school. But then, the Advocate Commissioner failed to conduct the auction, for which reason the court below, by Ext.P12 order, set aside Ext.P9 revised report and appointed a fresh Advocate Commissioner to conduct the auction as directed in Ext.P8 order.

Going by the law laid down in Badri Narain Prasad Choudhary, Yunus C.M and Geetha.M.V (cited supra), I find the course adopted by the court below is erroneous, irregular and improper, and is liable to be interfered with by this Court invoking its power of superintendence under Article 227 of the Constitution of India.

In the above legal and factual matrix, I am of the definite view that the above question needs to be reconsidered by the court below within the four corners of the statute and the authoritative precedents, after giving full opportunity to both sides, which would do complete justice to all parties.

Hence, Exts.P8 and P12 orders are liable to be set aside, and the court below is to be directed to consider the final decree application, untrammelled by any observation made by the court below or this Court, by appointing an experienced advocate commissioner to be assisted by an expert, if needed, and decide the final decree application in accordance with law as expeditiously as possible.

Resultantly, the original petition is allowed in the following manner:

(i) Exts.P8 and 12 orders are set aside.

(ii) The court below is directed to appoint an experienced advocate commissioner to be assisted by an expert, if needed, and decide the final decree application in accordance with law.

(iii) As the final decree application is of the year 1998, the Court of the Principal Subordinate Judge, Thalassery is directed to consider and dispose of FDIA No.1721/1998 as expeditiously as possible at any rate within an outer time limit of one year from the date of receipt of a copy of this judgment.

(iv) The parties shall bear their respective costs.