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Bombay High Court
VAIDYA
Taherbhai Abdulalli - Appellant
Versus
Nagindas Gokuldas Saraf - Respondent
Decided On : 08/02/1978
PARTITION ACT, 1893 - SECTIONS 2 AND 3 - SALE OF PROPERTY - APPLICATION FOR LEAVE TO BUY AT VALUATION - TIME LIMIT - INTERPRETATION OF SECTIONS 2 AND 3 - LIBERAL CONSTRUCTION - EQUITIES IN FAVOUR OF THIRD PARTIES - CONFIRMATION OF SALE.
Fact of the Case:
In a partition suit, an application was made under Section 2 of the Partition Act, 1893 for sale of the property. Subsequently, an application was made under Section 3 of the Act by some of the shareholders for leave to buy the property at a valuation. The trial court allowed the application under Section 3 and refused to confirm the sale held under Section 2. The auction purchaser challenged the order.
Finding of the Court:
The court held that an application under Section 3 of the Partition Act, 1893 could be made at any time before the confirmation of the sale held under Section 2. However, the court also held that the equities in favour of third parties, such as the auction purchaser, must be considered before passing any order under Section 3.
Issues: 1. Whether an application under Section 3 of the Partition Act, 1893 could be made after the sale had been held under Section 2? 2. Whether the equities in favour of third parties, such as the auction purchaser, must be considered before passing any order under Section 3?
Ratio Decidendi: 1. Section 3 of the Partition Act, 1893 should be liberally construed to enable the sharers in a partition decree to sell the property among themselves. 2. The terminus a quo for making an application under Section 3 arises after an application is made under Section 2, requesting the Court to direct a sale. 3. The order directing a sale may be a decree, but it cannot be a final decree, inasmuch as in all court sales, confirmation of the sales is necessary and until confirmation, therefore, the Court has power to direct a sale. 4. The time limit for making an application under Section 3 extends up to the point of time when the Court confirms the sale which is actually held. 5. The equities in favour of third parties, such as the auction purchaser, must be considered before passing any order under Section 3.
Final Decision: The court partly allowed the appeal and substituted the order of the trial court with an order directing the sale of the property in favour of the auction purchaser if the sale under Section 3 was not completed within three months.
2. Under the decree for partition, passed in Special Civil Suit No. 277 of 1972, among the respondents, it was found that it was not possible to partition the property; and hence an application was made on Jan. 9, 1976 for sale of the property under S.2 of the Partition Act, 1893.
3. The property is house property bearing No. 541 situated at Raviwar Peth in Pune. On the application made by the plaintiff-decree-holder (Ex. 68), an order was passed on Dec. 4, 1976 to hold the sale by public auction of the suit property under S.2 of the Partition Act, 1893. The sale was held on March 30, 1977 and the appellant happened to be the highest bidder at the said sale.
4. In the meanwhile, on Jan. 7, 1977, defendants 1 and 2, who are respondents Nos. 2 and 6 in the above first appeal, made an application under S.3 of the Partition Act, 1893; applying for leave of the Court to buy at a valuation the share or shares of the party or parties asking for a sale.
5. The said application was resisted by the plaintiff-decree-holder by contending that the application was not maintainable and was filed in order to protract the proceedings.
6. The learned Second Joint Civil Judge has tried to explain the circumstances in which the present application came to be placed for hearing before him after the auction sale was held. After hearing the plaintiff and the auction purchaser, the learned Judge, by his judgement and order dated Sept. 2, 1977. refused to confirm the sale held by the Commissioner, because he allowed the application under S.3 of the Partition Act, 1893. The said decision is challenged in the above first appeal by the auction purchaser.
7. Mr. Gupte, the learned counsel appearing for the auction purchaser, contended that the learned Second Joint Civil Judge erred in law in holding that the hearing of the application under S.3 made in the present case was tenable after the Court had ordered sale under S.2 of the Partition Act, 1893 on Dee. 4, 1978.
8. In support of his above argument, Mr. Gupte relied on the decision of the Madras High Court in Angamuthu Mudaliar v. Ratna Mudaliar, AIR 1925 Mad 1234, where it was laid down by Kumaraswami Sastri and Krishnan, JJ. that the proper time to apply under S.3 of the Partition Act, 1893 is before a Court makes an order under S.2. So, according to Mr. Gupte, when under S.2 sale has been ordered, a sharer cannot apply to have property sold to him at valuation fixed by the Court.
9. The learned Second Joint Civil Judge has cited a number of authorities in support of the view he has taken, and particularly the decision of the Madras High Court, subsequent to the above decision, in Vardaraja v. Chenni Veeri, AIR 1970 Mad 106, where a view appears to have been taken that the application under S.3 could be made at any time before the sale is held, although it is not clear whether they mean by "the sale is held", "the sale is confirmed", as S.7 of the Partition Act requires the sale to be held in accordance with the procedure of the Court, and that procedure requires the sale to be confirmed before the sale can transfer the property so as to entitle the auction purchaser to possession of the property.
10. Mr. Gupte further submitted that any order for sale made by the Court under S.2 of the Partition Act is to be deemed to be a decree within the meaning of S.2 of the Civil P.C., under S.8 of the Partition Act, 1893. He, therefore, submitted that once an order for sale under S.2 was made, the learned Second Joint Civil Judge could not make any other order so as to vary it or to nullify it, as has been done in the present case, by ordering a sale under S.3 of the Act.
11. The material Ss.2 and 3 of the Partition Act, 1893 run as follows :-
"2. Whenever in any suit for partition in which, if instituted prior to the commencement of this Act, a decree for partition might have been
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