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High Court of Judicature at Madras
THANGAMANI
Valliammal
Versus
Rajathiammal & Others
C.R.P. Nos. 1966 of 1967 of 1993
Decided On :Decided on: 13-08-1993
PARTITION ACT - SECTION 4 - SHARE TRANSFER TO NON-FAMILY MEMBER - PRE-EMPTION RIGHT - APPLICABILITY TO DEFENDANT - LIBERAL CONSTRUCTION - SALE UNDER SECTION 2 - FINALITY OF ORDER - AUCTION SALE IRREGULARITY - UPSET PRICE FIXATION - APPLICABILITY OF O. 21 C.P.C. - SCOPE.
Fact of the Case:
The revision petitioner, a co-sharer in a family dwelling house, sought to pre-empt the sale of a share transferred to a stranger under Section 4 of the Partition Act. The trial court dismissed her petition, holding that Section 4 was not applicable to a defendant in a partition suit. The revision petitioner challenged this decision.
Finding of the Court:
The High Court held that Section 4 of the Partition Act is applicable to both plaintiffs and defendants in a partition suit. The court found that the object of Section 4 is to preserve the integrity of the family dwelling house and to enable the members of the family to keep it for themselves as far as possible. The court also held that the order directing the sale of the property under Section 2 of the Partition Act was final and binding on the revision petitioner, who had not challenged it. Finally, the court found that there was no material irregularity in the conduct of the auction sale.
Issues: 1. Whether Section 4 of the Partition Act is applicable to a defendant in a partition suit? 2. Whether the order directing the sale of the property under Section 2 of the Partition Act was final and binding on the revision petitioner? 3. Whether there was any material irregularity in the conduct of the auction sale?
Ratio Decidendi: 1. Section 4 of the Partition Act is applicable to both plaintiffs and defendants in a partition suit. The object of Section 4 is to preserve the integrity of the family dwelling house and to enable the members of the family to keep it for themselves as far as possible. The language of Section 4 does not preclude a defendant from availing himself of the provisions of that Section if the stranger-transferee happens to be arrayed as a party-defendant and should not be strictly limited only to those cases where the transferee figures as the plaintiff. 2. The order directing the sale of the property under Section 2 of the Partition Act was final and binding on the revision petitioner, who had not challenged it. Section 2 of the Partition Act provides that whenever in any suit for partition, a decree for partition might have been made, it appears to the Court that, by reason of the nature of the property to which the suit relates, or of the number of the shareholders therein, or of any other special circumstances, a division of the property cannot reasonably or conveniently be made, and that a sale of the property and distribution of the proceeds would be more beneficial for all the shareholders the Court may, if it thinks fit, on the request of any of such shareholders interested individually or collectively to the extent of one moiety or upwards, direct a sale of t he property and a distribution of the proceeds. And under S. 8 any order for sale as per S. 2 shall be deemed to be a decree within the meaning of S. 2 of the Code of Civil Procedure. 3. There was no material irregularity in the conduct of the auction sale. The revision petitioner had not shown how the fixing of upset price at Rs. 60,000/- was responsible for the property being sold in auction for more than one lakh of rupees. Further, the Commissioner had sold the property only under S. 2 of the Partition Act. That was not a sale conducted in execution of a decree as per the provisions of O. 21 C.P.C.
Final Decision: The High Court dismissed both the revision petitions.
1. One Rajathi Ammal the first respondent in these civil revision petitions filed O.S. No. 85 of 1978 in the Court of the Subordinate Judge of Madurai for partition and separate possession of her one-third share in the property described therein. The present second respondent and the revision petitioner were defendants 1 and 2 respectively in that action. On 19.4.1979 the preliminary decree was passed in the suit. The Commissioner appointed in I.A. No. 76 of 1980 submitted his report stating that the nature of the property is such that division by metes and bounds is not feasible. So in that application the Sub Court passed an order on 16.3.1982 that the said properly has to be sold in public auction under S. 2 of the Partition Act and the sale proceeds are to be shared among the parties. The revision petitioner who was a party in I.A. No. 76 of 1980 did not prefer any appeal or revision against the said order. Then the first respondent/plaintiff filed E.P. No. 3 of 1985 in O.S. No. 85 of 1978 for the sale of the said house. In the meanwhile, one Maruthamuthu who purchased the 1/3 share of the first defendant Mookayee Ammal got himself impleaded as the third respondent in the execution petition. Since he died pending the said petition present respondents 3 to 12 came on record as his legal representatives. On 17.11.1979 one Sri S. Vasudevan was appointed as Commissioner to sell the property among the sharers. On 15.7.1990 he conducted the auction and sold the property in favour of the fifth respondent who was the highest bidder for Rs. One lakh. Immediately after the sale he deposited 1/4th of the sale amount less his 1/3 share therein. He was given 45 days time for deposit of the balance amount by the Commissioner. At this stage the revision petitioner came forward with two applications. Of them E.A. No. 586 of 1990 is under S. 4 of the Partition Act requesting the Court to pass an order directing present respondents 3 to 12 to sell their undivided 1/3 share to him after the valuation of such share as fixed by the trial court. The next E.A. No. 587 of 1990 is under O. 21 R. 90 and S. 151 C.P.C. to set aside the sale conducted by the Commissioner. Both applications were resisted by respondents 3 to 12. After enquiry learned Subordinate Judge dismissed both the petitions without cost holding that the second defendant had no right to invoke S. 4 of the Partition Act and that the sale conducted by the Commissioner was not vitiated by any material irregularity. These two revision petitions are directed against the said orders.
2. The revision petitioner claimed the benefit of S. 4 of the Partition Act on the ground that the suit property is her family dwelling house wherein she is residing along with the other co-sharers who are present respondents 1 and 2 and that the first defendant Mookayee Animal has alienated her undivided 1/3 share to the third defendant who is a stranger to their family. The Court below has negatived her contention on the basis that she would be entitled to enforce the sale in her favour only in a partition action instituted by the alienee. Since the plaintiff in O.S. No. 85 of 1978 the first respondent herein herself is a member of the family, the provisions of S. 4 of the Partition Act cannot come to her rescue. Sri P.T.S. Narendravasan, learned counsel for the revision petitioner assailed these findings of the Court below and argued that S. 4 of the Partition Act is applicable even in a suit instituted by one of the members of the joint family and it is not necessary that this benefit can be availed of only in case the stranger alienee chooses to file the suit for division of the family house.
3. S. 4(1) of the Partition Act proceeds as under:
“Where a share of a dwelling-house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition, the Court shall, if any member of the family being a share-holder shall underta
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