1969 Supreme(Mad) 419

IN THE HIGH COURT OF MADRAS
G. Ramanujam, J.
The Self-Respect Sangam, Erode by President, E.V. Ramaswami Naicker
Vs.
Nagammal
Decided On: 13.11.1969

The Court has inherent jurisdiction to direct a sale of the properties among the co-sharers apart from the provisions of the Partition Act.

Headnote:

PARTITION - SALE OF PROPERTY - JURISDICTION OF COURT - INHERENT POWER OF COURT TO DIRECT SALE OF PROPERTY AMONG CO-SHARERS - JOINT ENDORSEMENT BY PARTIES TO APPLY PRINCIPLES OF PARTITION ACT - INTERPRETATION - EFFECT ON COURT'S JURISDICTION - IRREGULARITIES IN CONDUCT OF SALE - VALIDITY OF SALE.

Fact of the Case:

The appellant and the defendant were co-sharers in a property. The appellant filed a suit for partition of his 3/4th share in the property. A preliminary decree for partition was passed, and a final decree was passed in pursuance of the preliminary decree. The defendant filed an appeal against the final decree, and the matter was remanded for consideration of the Commissioner's report and plan. On remand, the trial Court passed a fresh final decree dividing the property into 4 blocks and allotting blocks 1 to 3 to the appellant and the fourth block to the defendant. The parties filed a joint endorsement on the appeal memo agreeing to apply the principles of the Indian Partition Act in respect of the property. The appellant applied under Section 6 of the Partition Act to direct a sale of the properties by public auction. The trial Court dismissed the application, holding that it cannot be taken as one under the Partition Act and that the appellant cannot invoke Section 6 without his having resort to Section 2 at the first instance. The appellant filed an appeal against the order, but the same was dismissed as not maintainable. The appellant then filed an application for passing a final decree by directing the properties to be sold by auction among the co-sharers. The trial Court allowed the application and directed that the property be sold by a Commissioner to the highest bidder as between the appellant and the defendant with a right to set off his share from the sale price. The defendant filed an appeal against the order, and the lower appellate Court allowed the appeal and set aside the sale. The appellant filed a second appeal against the order of the lower appellate Court.

Finding of the Court:

The Court held that the joint endorsement by the parties to apply the principles of the Partition Act did not bar the appellant's application for passing a final decree by way of a direction to sell the property among the sharers. The Court also held that the Court has inherent jurisdiction to direct a sale of the properties among the co-sharers apart from the provisions of the Partition Act. However, the Court held that the sale conducted by the Commissioner was invalid as it was conducted beyond the hour fixed under Rule 188 of the Civil Rules of practice and on the basis of an upset price fixed by the Commissioner himself.

Issues: 1. Whether the joint endorsement by the parties to apply the principles of the Partition Act barred the appellant's application for passing a final decree by way of a direction to sell the property among the sharers? 2. Whether the Court has inherent jurisdiction to direct a sale of the properties among the co-sharers apart from the provisions of the Partition Act? 3. Whether the sale conducted by the Commissioner was valid?

Ratio Decidendi: 1. The Court held that the joint endorsement by the parties to apply the principles of the Partition Act did not bar the appellant's application for passing a final decree by way of a direction to sell the property among the sharers. The Court interpreted the joint endorsement as a direction to the parties to follow the principles of the Partition Act and not to apply under a particular provision of the said Act. The Court held that the appellant was entitled to move the Court for passing a final decree after directing a sale of the property to the highest bidder as among the sharers. 2. The Court held that the Court has inherent jurisdiction to direct a sale of the properties among the co-sharers apart from the provisions of the Partition Act. The Court relied on several decisions of various High Courts which held that the Court has such inherent jurisdiction. 3. The Court held that the sale conducted by the Commissioner was invalid as it was conducted beyond the hour fixed under Rule 188 of the Civil Rules of practice and on the basis of an upset price fixed by the Commissioner himself. The Court held that the Commissioner was bound by the procedure provided in Rule 188 of Civil Rules of practice and that the sale conducted after 5 p.m. was invalid.

Final Decision: The Court allowed the appeal in part and remanded the matter to the trial Court for conducting a fresh sale between the sharers in accordance with law and in pursuance of its order dated 24th March, 1962, and for passing a final decree on the basis of such a sale.