Badri Narain Prasad Choudhary vs Nil Ratan Sarkar

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1978 Supreme(SC) 106

SUPREME COURT OF INDIA
R.S. SARKARIA AND P.S. KAILASAM, JJ.
Badri Narain Prasad Choudhary and others, Appellants
Versus
Nil Ratan Sarkar, Respondent.
Civil Appeal NO. 2388 of 1968
Decided on 10-3-1978.

Advocates appeared
M/s. Lal Narain Sinha and F. S. Nariman, Sr. Advocates, (M/s. S. C. Agarwala and Arunesnwar Gupta, Advocates, with them), for Appellants; Mr. A. B. N. Sinha, Sr. Advocate (Mr. S. N. Prasad, Advocate with him) for Respondent.

Advocates:
A.B.N.Sinha, ARUNESHVAR GUPTA, I.S.Nariman, LAL NARAIN SINHA, S.C.AGRAWAL, S.N.PRASAD

Headnote:
Partition act – Section 2 and 3 - Permanent tenant - Share in the suit premises – Claim of compensation - Subordinate judge by his judgment, dated, decreed the suit and is doing so, held that the defendant was not a permanent tenant but a tenant from month to month only; that the dimensions and the area of the suit premises being very small, it could not be conveniently partitioned and therefore, it was necessary to have recourse to s. 3 (2) of the partition act, 1893. he fixed the valuation of the suit premises and directed "that the suit premises being incapable of partition shall be put to sale between the plaintiffs and the defendant, and the same shall be sold to that party who offers to pay the highest price above the valuation made by me - accordingly, the suit property was repeatedly auctioned between the parties - first was held in september 1963, the highest bid was offered by the plaintiffs. the last auction was held in june 1965, the highest bid being offered by the plaintiffs. the defendant was given the option to purchase the property at that price and deposit the sale money – held, thus considered, it is clear that the provisions of ss. 2 and 3 of the partition act are not applicable to the peculiar circumstances of the case. at the same time, there is a concurrent finding of fact recorded by the courts below that the suit property is so small, that it cannot be conveniently and reasonably partitioned by metes and bounds, without destroying its intrinsic worth. this finding is unassailable. in our opinion in such a situation, the court can devise such other feasible mode for effecting partition as may appear to it to be just and equitable in the circumstances of the case - suit property, being incapable of division in specie, there is no alternative but to resort to the process called owelty, according to which, the rights and interests of the parties in the property will be separated, only by allowing one of them to retain the whole of the suit property on payment of just compensation to the other. as rightly pointed out by k. subba rao, c. j. (speaking for a division bench of andhra high court in air 1958 andh pra 647), in cases not covered by ss. 2 and 3 of the partition act, the power of the court to partition property by any equitable method is not affected by the said act - now in the present case, the defendant is the smaller co-sharer and he is using the property as a shop-cum-residence. equity requires that he should be given a preferential right to retain the whole of the suit property on payment of compensation being the just equivalent of the value of the plaintiffs share to them. the valuation of rs. 9,000/- fixed by the high court was certainly not a fair compensation for the plaintiffs 13/16 share. this was the price at which the plaintiffs had purchased their share on april 27, 1957. but in 1958, more than one year before this suit, which was instituted in august, 1959, a plan or scheme for converting this locality into a market had been approved by the authorities – Order accordingly

JUDGMENT

SARKARIA, J.:— This appeal by special leave, is directed against a judgment, dated March 20, 1967, of the High Court of Judicature at Patna. It arises from these circumstances;

2. The defendant-respondent purchased 3/16 share for Rs. 2,250/- in the suit premises by a sale deed, dated March 25, 1957. Before this sale, the respondent was already in occupation of the premises as a tenant paying a monthly rent of Rs. 53/-, inclusive of water-tax to the then proprietor.

3. The plaintiffs-appellants, who, at the material time, were members of a joint Hindu family governed by Mitakshara Law, purchased the remaining 13/16 share in the suit premises for Rs. 9,000/- by a sale deed, dated April 27, 1957. They already owned and possessed a parcel of land adjacent to the suit premises and they intended to open a marked there after amalgamating the same with their share in the suit premises. They asked the respondent to partition and separate their share. The respondent did not agree. Therefore, on August 8, 1959, on the preceding facts, the appellants instituted the suit No. 64 of 1959) for partition of the suit property, in the Court of the Subordinate Judge, First Court, Patna.

4. In the plaint, it was inter alia alleged that the suit property was of very small dimensions, measuring .013 acre only, and its partition by metes and bounds was not feasible. The plaint also contained a proposal from the plaintiffs to purchase the defendants share in the suit premises at a price which may be held reasonable and proper by the Court.

5. The defendant resisted the suit. He pleaded that he was a permanent tenant in the suit premises and not a tenant from month to month, that the plaintiffs had purchased only the right to receive their proportionate share of the monthly rent, to the extent of Rs. 39/-, but they were not entitled to claim partition. An alternative proposal was made that the defendant was willing to buy the share and rights of the plaintiffs on a valuation that may be fixed by the Court.

6. The Subordinate Judge by his Judgment, dated, 14-8-1961, decreed the suit and is doing so, held that the defendant was not a permanent tenant but a tenant from month to month only; that the dimentions and the area of the suit premises being very small, it could not be conveniently partitioned and therefore, it was necessary to have recourse to S. 3 (2) of the Partition Act, 1893. He fixed the valuation of the suit premises at Rs. 11,250/- and directed "that the suit premises being incapable of partition shall be put to sale between the plaintiffs and the defendant, and the same shall be sold to that party who offers to pay the highest price above the valuation made by me."

7. Accordingly, the suit property was repeatedly auctioned between the parties. The first was held in September 1963, the highest bid was offered by the plaintiffs. The last auction was held in June 1965, the highest bid being Rs. 50,000/- offered by the plaintiffs. The defendant was given the option to purchase the property at that price and deposit the sale money by July 19, 1965. The defendant failed to do so. The Court thereupon ordered that "the next highest bid of the plaintiffs to the extent of Rupees 50,000/- is accepted."

8. Against the decree of the Trial Court, the defendant preferred an appeal to the High Court. The Division Bench who heard this appeal held that by making the averments in paragraphs 8 and 10 (c) of the plaint. "the plaintiffs have clearly made out a case to be dealt with under S. 2 of the Act", and therefore, equity had to be worked out between the parties by allowing the defendant to purchase the share of the plaintiffs under the provisions of S. 3 (1), read with S. 2 of the Act. Taking Rs. 11.250 as the price of the whole property in suit-which was the valuation fixed by the Trial Court-the High Court worked out the value of the plaintiffs share as Rs. 9,000/-, and that of the defendants share as Rs. 2,250/- and further directed that the defendan

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