The court ruled that under the Partition Act, a co-sharer can apply to purchase shares at valuation even after a sale order, emphasizing the court's duty to fix the upset price and uphold constitutional property rights.

ORDER :

(V. Lakshminarayanan, J.)

1. This Civil Revision Petition arises against the order of the XIII Assistant Judge, City Civil Court, Chennai in I.A. No.3 of 2023 in I.A. No.5746 of 2018 in I.A. No.14131 of 2016 in O.S. No.2371 of 2010 dated 11.03.2024.

Facts leading to Revision

2. O.S. No.2371 of 2010 was filed by the 1st respondent - A.Khairunnissa. This is a suit for partition and separate possession. The claim of the plaintiff is that the suit schedule mentioned property belonged to one, P.E. Abdul Ahad, who died intestate on 11.06.2008. He left behind the following as his legal heirs to succeed to his estate.:-

(i) his wife, Najimunnissa, the 1st defendant- the mother of the plaintiff,

(ii) Fathima Bee @ Mumtaz, the 3rd defendant-the sister of the plaintiff; and

(iii) A.Khairunnissa, the plaintiff.

Pleading that she is entitled to 7/16th share and the 2nd defendant is entitled to 7/16th share and the 1st defendant is entitled to 2/16th share, the plaintiff presented the suit.

3. The defendants entered appearance and filed their written statement. They raised several pleas to defeat the claim of the plaintiff. However, the relationship between the parties was admitted.

4. On the basis of the pleadings, the parties went for trial. The suit came to be decreed by the learned Trial Judge on 20.12.2013. Aggrieved by the preliminary decree, the defendants 1 and 2 preferred an appeal before the learned XIX Assistant Judge, City Civil Court, Chennai. Pending the appeal, the first defendant (the wife of Abdul Ahad) passed away and one Basheerunnisa was brought on record as her legal representative. After hearing both sides, the Appeal Suit came to be dismissed on 25.01.2016. The second defendant, not being satisfied with the concurrent Judgments and Decrees, preferred a Second Appeal in S.A. No.442 of 2018 to this Court. The Second Appeal came to be dismissed on 08.11.2022. Thereby the preliminary decree passed by the Trial Court stood confirmed.

5. In the meantime, on the strength of the preliminary decree, the 1st respondent - plaintiff preferred an application for passing of final decree. Notice was ordered in the final decree application and an Advocate Commissioner was also appointed. The Advocate Commissioner submitted a report that the suit property is incapable of division. Therefore, the plaintiff - Khairunnissa filed an application in I.A. No.5746 of 2018 invoking Section 2 of the Partition Act of 1893.

6. The prayer itself had been framed in an extremely singular fashion. It reads as follows:

"To direct the advocate commissioner to sell the property to the parties to the suit in case any of the parties is interested purchasing the shares of other parties and in case no party is interested in purchasing the shares of the other parties to sell the suit property to third party and the sale proceeds directed to be deposited to the credit of the suit".

7. After receipt of a counter, the learned Judge allowed the application in the following terms:

"31.01.2023

In the result, Mr. M. Mohamed Yasin appointed as an Advocate Commissioner is to inspect the Suit schedule property and take appropriate steps to sell the Suit schedule property in public auction after fixing the correct upset price and while conducting public auction, pre-emption right should be given to the parties to the suit to purchase the Suit schedule property..."

8. The learned XIII Assistant Judge, City Civil Court, Chennai, came to a conclusion that public auction could be held for the sale of the property, but the said public auction would be subject to the right of pre-emption of the parties in the suit, and they, if interested, would be given preference in purchasing the suit schedule mentioned property. Suffice it to state that the property was sold in a public auction and it was purchased by one S.Mubarack, who is the 3rd respondent in this revision. He had purchased the property for a sum of Rs. 1,10,00,000/- (Rupees One Crore and Ten Lakhs). I have to add, the sale ha