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IN THE HIGH COURT OF JUDICATURE AT MADRAS
THE HONOURABLE MR. JUSTICE R. MAHADEVAN, THE HONOURABLE MR. JUSTICE MOHAMMED SHAFFIQ
Selvi – Appellant
Versus
C.S. Geethalakshmi – Respondent
Original Side Appeal Nos. 20, 21, 22, 23 and 24 of 2022 and CMP.Nos.1968, 1979, 1981, 1982, 1983, 1984, 1986, 1987, 1989, 1992, 5834, 5835, 5843, 5845 and 5856 of 2022
Decided on : 07-06-2023
PARTITION - Partition of Property - Partition Act, 1893 - Section 2, Section 3, Section 4 - The court interpreted Section 2 of the Partition Act, 1893, which allows for the sale of property instead of division when division is not feasible or beneficial for the shareholders. The court found that two advocate commissioners concluded that the property could not be divided without significant loss in value, thus justifying the sale of the property. The court emphasized the need for a rational basis for not dividing the property and the collective convenience of the shareholders, ultimately deciding that a public auction would be in the best interest of all parties involved.
Fact of the Case:
The plaintiff filed a suit for partition of property inherited from her deceased parents, claiming a 1/4 share. A preliminary decree for partition was granted, but subsequent applications by the defendants sought to sell the property due to its indivisibility. The plaintiff objected, asserting the property could be divided and that she had sentimental ties to it.
Finding of the Court:
The court upheld the findings of two advocate commissioners who reported that the property was not feasible for division without significant loss in value. The court concluded that the objections raised by the plaintiff lacked merit and that the sale of the property would be more beneficial for all shareholders.
Issues: Whether the property could be divided among the shareholders or if a sale was necessary; whether the plaintiff's objections to the advocate commissioners' reports were valid; and whether the court's decision to order a sale was justified under the Partition Act.
Ratio Decidendi: The court held that under Section 2 of the Partition Act, a sale can be ordered if division is not feasible or beneficial. The reports from the advocate commissioners provided sufficient basis for concluding that selling the property was in the best interest of all parties, as division would result in a significant loss of value.
Final Decision: The court dismissed the plaintiff's appeals against the order allowing the sale of the property by public auction, affirming that the plaintiff could participate in the auction.
JUDGMENT :
(Judgment of the Court was delivered by R.MAHADEVAN, J)
The Plaintiff in C.S. No. 240 of 2019 is the appellant in all these appeals. These appeals are filed as against the common order dated 22.10.2021 passed by the learned Judge in the original applications filed in the said suit.
2. The appellant/plaintiff has instituted the suit in C.S. No. 240 of 2019 for granting a preliminary decree of partition of the properties morefully set out in the plaint schedule.
3. In the suit, a preliminary decree for partition was passed on 19.06.2019 and final decree application was filed. Pending the final decree proceedings, five applications have been filed, which are the subject matters of these appeals.
4. Out of the five appeals, O.S.A. No. 20 of 2022 was filed as against the order dated 22.10.2021 passed in Application No. 2009 of 2020. This application was filed by the defendants 1 to 4 praying to issue a direction for sale of the Schedule A Property by public auction by appointing an advocate commissioner and directing the Advocate Commissioner to deposit the sale proceeds to the credit of C.S. No.240 of 2019 and on conclusion of sale to pass appropriate orders with regard to distribution of the sale proceeds.
5. O.S.A. No. 21 of 2022 was filed as against the order dated 22.10.2021 passed in Application No. 2008 of 2020. This application has been filed by the defendants 1 to 4 praying to vacate the interim injunction granted on 19.06.2019 in O.A. No. 370 of 2019 in C.S. No. 240 of 2019, while passing the preliminary decree in the suit.
6. O.S.A. No. 22 of 2022 was filed as against the order dated 22.10.2021 passed in Application No. 6321 of 2019. This application was filed by the defendants 1 to 4 to appoint an advocate commissioner to inspect the schedule A mentioned property and divide the same by metes and bounds into four shares by equal value and allot the share to the applicants/defendants 1 to 3 and plaintiff.
7. O.S.A. No. 23 of 2022 was filed against the order dated 22.10.2021 passed in Application No. 2010 of 2020. This application was filed by the defendants 1 to 4 praying to conduct an enquiry as to mesne profits payable by the plaintiff to the applicants 1 to 3/defendants 1 to 3 in respect of the Schedule A Property under Order XX Rule 12 of the Code of Civil Procedure in terms of the preliminary decree dated 19.06.2019 passed in C.S. No. 240 of 2019.
8. O.S.A. No. 24 of 2022 was filed as against the order dated 22.10.2021 passed in Application No. 6322 of 2019 in Civil Suit No. 240 of 2019. This application has been filed by the defendants 1 to 4 praying to pass a final decree to partition of the Schedule A mentioned property by metes and bounds and put the applicants 1 to 3/defendants 1 to 3 and plaintiff in possession in respect of their allotted 1/4 share in the same and also allot respective share in the Schedule D & E Properties to the applicants/defendants 1 to 3 and the plaintiff.
9.1. The Plaint averment shows that the plaintiff and the defendants 1 to 3 are the children of Mr. T. Shanmugam and Mrs. T.S. Lakshmi. The fourth defendant is the daughter of the first defendant. According to the plaintiff, the Schedule A Property was purchased by her mother Lakshmi and her sister Kasturi Palani jointly by way of a sale deed dated 30.09.1973 registered as document No. 1751 of 1973 on the file of Sub-Registrar, Mylapore. Subsequently, Kasturi Palani settled her half share in the Schedule A Property in favour of her mother Lakshmi Ammal through a settlement deed dated 08.04.2009, which is morefully mentioned as Schedule C Property in the plaint. Thus, the mother of the plaintiff has become the owner of the Schedule A property in entirety. It is further stated that the mother of the plaintiff, out of love and affection, had executed four settlement deeds all dated 08.04.2009 whereby she had settled 20% of the undivided share in favour of the plaintiff and defendants 1 to 3 and retained 20% with herself in respect of Sche
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