Point of Law: Power To Sell Share - Under Section 3(1) of Act, court has power to sell share or shares to shareholder who offers highest price above valuation made by court.

JUDGMENT :

M.R. ANITHA, J.

1. Appellants are the legal heirs of deceased defendant/respondent in F.D.I.A. No. 2992/2004 in O.S. No. 227 of 2001 on the file of Subordinate Judge's Court, Thalassery.

2. Against the preliminary decree, A.S. No. 49/2004 was filed which was dismissed and thereafter F.D.I.A. No. 2992/2004 was filed for passing final decree. Respondents/ plaintiffs filed application under Sections 2 and 3 of the Partition Act, 1893 (in short ‘the Act’). Value of Rs. 1,40,000/- per cent offered by the respondents/petitioners/plaintiffs were accepted and respondents/plaintiffs were directed to pay the amount in respect of the share of the appellants/respondents/defendants including the value of the share of the house, within two months and the entire property in Ext.C2 plan which is more descriptively stated in Ext.C3 (A share list) is allotted to the respondents/petitioners/ plaintiffs. While so, original defendant died and his legal heirs filed A.S. No. 210/2011. By the impugned judgment, learned Additional District Judge-I, Thalassery confirmed the final decree passed by the Subordinate Judge and appeal was dismissed. Against which the appellants/legal heirs of the deceased original defendant approaches this Court in this R.S.A. Original defendant got examined himself as RW-1 and Exts.C1 to C4 were marked.

3. Notice was issued to the respondents/petitioners/plaintiffs. Respondents/petitioners/ plaintiffs appeared through Advocate R. Parthasarathy. Lower court records were called for and both sides were heard. (Appellants/respondents/defendants would be referred as ‘defendants’ and respondents/ petitioners/plaintiffs as ‘plaintiffs’).

4. At the time of admission, this Court formulated the following substantial question of law:

“Whether the courts below were justified in conducting an auction amongst the sharers in case it is found that the property is not capable of division by metes and bounds.”

5. According to the learned counsel for the defendants, the trial court did not conduct any valuation as contemplated under Section 3 of the Act. He would also contend that the defendants' predecessor, that is the deceased original defendant, from the very beginning requested for allotting the house in the schedule property to his share. It is also his contention that all the other sharers have independent houses and are living separately and defendant had no means to construct a new house and that was why he contended for allotting the house to his share and he had been occupying the house with family. But, the Court arbitrarily accepted Rs. 1,40,000/- suggested by the plaintiffs as the value of the property and permitted the plaintiffs to purchase the share of the defendant. Hence defendants filed I.A. No. 41/2013 before the Appellate Court for demolishing the house since it has become valueless due to old age and partition the entire schedule property and allot the share of defendants so that they can put up a house in that property. Learned counsel also placed reliance on Sathi Lakshmanan vs. Mohandas, 2008 (4) KLT 401.

6. Learned counsel for the plaintiffs, on the other hand, would contend that the main contention of the original defendant in the final decree proceedings is that the centage value fixed by the Commissioner as Rs. 75,000/- per cent is very high and the maximum value of the property would be only Rs. 30,000/- to Rs. 35,000/-. After filing petition under Sections 2 and 3 of the Act, the plaintiffs offered Rs. 1,00,000/- per cent to the schedule property and thereupon the defendants filed statement offering value at Rs. 1,01,000/- per cent. Plaintiffs again offered value of Rs. 1,40,000/- per cent for which the original defendant had no objection and it was after that the final decree was passed. But, only in the appellate stage, the legal heirs raised a contention for demolition of the house and for allotting the share of property. That, according to the learned counsel, is not sustainable since legal representativ