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2020 Supreme(Ker) 741
IN THE HIGH COURT OF KERALA AT ERNAKULAM
DEVAN RAMACHANDRAN, J.
T.P.Joseph, S/o Late Paily – Appellant
Versus
Ronald T.Dennison, S/o Thomas – Respondent
OP(C).Nos.3280, 3072 of 2019
Decided on : 07-10-2020
Advocate Appeared:
For the Appellant : SRI.THOMAS M.JACOB, SMT.DEEPA NARAYANAN, SRI.AKHIL K.MADHAV, SRI.V.PRASANTH
IMPORTANT POINT
No shareholder makes such an application -whether because their respective share is less than a moiety or otherwise -but all of them still expressly agree that a sale be ordered, the court can certainly allow it with due diligence.
Headnote:
Civil Rules of Practice- Rule 234;; The Partition Act- Section 3;; The Code of Civil Procedure- Section 151-Procedure for sale-; Sale by invoking its inherent power-Property is incapable of division by metes and bounds or that it would be inequitable to do so to the sharers-Enquiry or finding- Its division by metes and bounds is inequitable, impracticable, unreasonable, inconvenient or not beneficial to the shareholders, or that the pleadings on record render it inescapable that Sri.T.P.Joseph had, expressly or impliedly, agreed to it.
Statement of facts:
One of the co-owners of the property sought to be partitioned has challenged the various orders of the Trial Court, as per which, a preliminary decree ordering partition of the plaint schedule property was, in fact, directed to be sold by auction among its sharers.
Finding of the court:
The auction of the property conducted pursuant to Exhibits P15 and P16 orders also become unsustainable; resultantly, requiring the court to take up the Final Decree Application and dispose it of as per law
Result: O.P.(C)No.3072/2019 Allowed
JUDGMENT
Set forth for jural consideration in these Original Petitions is when and in what circumstances can a court, call upon to issue final decree in a suit for partition, order sale of the properties involved therein and distribution of its proceeds, deviating from the default method of effecting its partition by metes and bounds, particularly when the preliminary decree orders such.
2. This issue has come up for examination of this Court because one of the co-owners of the property sought to be partitioned has challenged the various orders of the Trial Court, as per which, a preliminary decree ordering partition of the plaint schedule property was, in fact, directed to be sold by auction among its sharers.
3. To obtain a hang of the controversy between the parties, the facts involved will certainly need close assessment; but before doing so, I deem it imperative to purvey the applicable law relating to partition of immovable properties.
4. The Hon'ble Supreme Court, in Shub Karan Bubna Alias Shub Karan Prasad Bubna v. Sita Saran Bubna and Others ((2009) 9 SCC 689), has very lucidly explained the concept of partition in paragraphs 4 and 5 of it, which needs to be read and is, therefore, reproduced under:
“4. 'Partition' is a re-distribution or adjustment of pre-existing rights, among co-owners/coparceners, resulting in a division of lands or other properties jointly held by them, into different lots or portions and delivery thereof to the respective allottees. The effect of such division is that the joint ownership is terminated and the respective shares vest in them in severalty. A partition of a property can be only among those having a share or interest in it. A person who does not have a share in such property cannot obviously be a party to a partition. 'Separation of share' is a species of 'partition'. When all co-owners get separated, it is a partition. Separation of share/s refers to a division where only one or only a few among several co-owners/coparceners get separated, and others continue to be joint or continue to hold the remaining property jointly without division by metes and bounds. For example, where four brothers owning a property divide it among themselves by metes and bounds, it is a partition. But if only one brother wants to get his share separated and other three brothers continue to remain joint, there is only a separation of the share of one brother. In a suit for partition or separation of a share, the prayer is not only for declaration of plaintiff's share in the suit properties, but also division of his share by metes and bounds. This involves three issues: (i) whether the person seeking division has a share or interest in the suit property/properties; (ii) whether he is entitled to the relief of division and separate possession; and (iii) how and in what manner, the property/ properties should be divided by metes and bounds?
5. In a suit is for partition or separation of a share, the court at the first stage decides whether the plaintiff has a share in the suit property and whether he is entitled to division and separate possession. The decision on these two issues is exercise of a judicial function and results in first stage decision termed as 'decree' under Order 20 Rule 18(1) and termed as 'preliminary decree' under Order 20 Rule 18(2) of the Code. The consequential division by metes and bounds, considered to be a ministerial or administrative act requiring the physical inspection, measurements, calculations and considering various permutations/ combinations/alternatives of division is referred to the Collector under Rule 18(1) and is the subject matter of the final decree under Rule 18(2). The question is whether the provisions of Limitation Act are inapplicable to an application for drawing up a final decree.”
5. The above judgment, of course, is not the first to speak on the afore lines, bu
