IMPORTANT POINT
The court cannot debar a co-sharer from auction participation as it denies their substantive rights, emphasizing fairness in property division.

JUDGMENT :

The petitioner is defendant No.1 in O.S.No.1017/2004 on the file of the Principal Subordinate Judge’s Court, Thrissur. The suit is for partition. The plaintiff and defendant Nos. 1 to 3 are the children of one Kuzhanthavel Pillai and the late Chellammal. Defendant No.4 is the wife of the late Perumal Pillai. Defendant Nos. 5 to 9 are the children of late Perumal Pillai and defendant No.4.

2. The plaint property is 8 cents of land with a residential building thereon. The property originally belonged to one Palavasam Pillai, the father of the late Kuzhanthavel Pillai and the late Perumal Pillai. Palavasam Pillai died in 1936. The suit was instituted for partitioning the plaint schedule property into five equal shares. The Court below tried the suit and passed a preliminary decree. The preliminary decree reads thus:-

“In the result, a preliminary decree is passed and the first plaintiff is entitled to 7/30 shares, the second plaintiff is entitled to 1/30 share, the third plaintiff is entitled to 1/30 share, the first defendant is entitled to 7/30 share, the second defendant is entitled to 7/30, the third defendant is entitled to 1/30 share and the defendants 4 to 9 are entitled to 6/30 shares. Defendants 10 and 11 are not entitled to any share in the plaint schedule property. The plaintiffs are directed to file the final decree application within two months from today. The cost of the suit shall come out of the estate. “

3. Respondent No.1 filed I.A.No. 4378/2008 for passing of the final decree in terms of the preliminary decree. The Court appointed an Advocate Commissioner who informed that division of the property is not possible. Therefore, the Court ordered an auction among sharers.

In the auction, the property was bid for an amount of Rs.48.5 Lakhs by the petitioner. The sale was conducted on 18.05.2010.

4. The petitioner filed I.A.No.4730/2010, stating that with the intention to defeat his interest after the sale, respondent No.1 inducted strangers in the building and sought an order removing the encroachments. In view of the filing of I.A.No.4730/2010, the petitioner did not deposit the sale amount.

5. The Final Decree Court, as per order dated 19.07.2010 in I.A.No.4730/2010, cancelled the sale in favour of the petitioner and ordered resale among the sharers except the petitioner. The order of the Final Decree Court debarring the petitioner from participating in the resale is under challenge in this proceeding.

6. In cases where Sections 2 and 3 of the Partition Act have no application, if all the shareholders agree or the Court finds that the suit property is incapable of division in specie, it is for the court to devise the most appropriate and suitable method which is beneficial for all the shareholders for a just and fair division of the property. The court has the inherent power to devise the most suitable means. The Court can allot the property to one sharer with a direction to pay owelty to the other sharers. The Court can also direct a sale of the property among the sharers or public and divide the sale proceeds among the sharers, depending on the facts and circumstances of each case. What is the best mode of division in such a case is to be decided by the court on the facts of that case. Whatever the course so adopted, it must be the most beneficial to all the sharers. It is not the interest of that shareholder in possession of the property to be looked into but the interest of all the shareholders [Vide : Sathi Lakshmanan K.C. and Another v. P.C.Mohandas and Others [ 2008 (4) KLT 401 ].

7. The question to be considered is whether the inherent power of the Court to devise the best mode of division in a case stretches to the extent of enabling the Court to debar a co-sharer from participating in the auction.

8. I have heard the learned counsel for the petitioner and the learned counsel for the resp