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2022 Supreme(Online)(KER) 12357
HIGH COURT OF KERALA
C.S. DIAS, J
T.V.ARAVINDAKSHAN – Appellant
Versus
T.V.CHANDRIKA – Respondent
OP(C)/605/2018
ADV SRI.C.P.PEETHAMBARAN FOR R1, R2, R5, R8 TO R20, R22, R24 TO R 26
A sale under the Partition Act requires a request from co-owners; without it, courts lack jurisdiction to order an auction.
Headnote:
Partition - Suit for Partition - Sections 2, 3 of the Partition Act 1893 - The court interpreted that a request from one or more co-owners is essential for ordering a public sale; without this request, the court's directions for auction were deemed improper.
Fact of the Case:
The petitioners, after a preliminary decree for partition, challenged subsequent orders directing an auction over the property without proper requests from co-owners, arguing that the directions were erroneous and disregarded the established legal procedures for partition.
Issues: Whether the lower court acted improperly by ordering an auction of property without a request from the co-owners in accordance with the provisions stipulated in the Partition Act.
Ratio Decidendi: The court concluded that for a public auction to be ordered under Section 2 of the Partition Act, there must be a request from co-owners; the absence of such a request renders the auction direction improper.
Final Decision: The original petition is allowed; the lower court's orders are set aside and directed to reconsider the final decree application in accordance with law.
JUDGMENT
The petitioners are the respondents 25 and 26 in I.A.No.4395/2009 in FDIA No.1721/1998 in O.S.208/1994 of the Court of the Principal Subordinate Judge, Thalassery. The respondents 1 and 2 in the original petition are the petitioners 2 and 3 in the above application, and the remaining respondents are the other respondents in the application. The respondents 28 to 42 are the legal representatives of the deceased respondents 3, 4 and 7. The parties are, for the sake of convenience and wherever the context so requires, referred to as per their status in the original petition.
2. The concise case of the petitioners, relevant for the determination of the original petition is:
(i) the petitioners were the defendants in the above suit and the legal representatives of the original plaintiff ― late Madhavi, who had filed the suit for partition. The court below passed a preliminary decree partitioning the plaint schedule properties into 14 equal shares. 1/14 share each was allotted to the plaintiff, defendants 1 and 2, defendants 3 and 8, defendants 9 and 10, defendants 11 to 16, defendants 17 to 22 and the remaining 8/14 shares were allotted to the group of the petitioners, i.e., defendants 23 to 26.
(ii) Late Madhavi filed FDIA No.1721/1998 to pass the final decree. An Advocate Commissioner filed Ext.P2 report. Madhavi objected to the report by filing I.A.No.4129/1999. The application was allowed, and the report was remitted. Thereafter, the Advocate Commissioner filed Ext.P4 revised report. Madhavi and a few other respondents again filed I.A.Nos.931/2003 (Ext.P5) 932/2003 (Ext.P7) to remit Ext.P4 revised report. The petitioners and respondents 12, 23 and 24 objected to the same by filing Ext.P6 counter statement. The court below, by Ext.P8 common order, allowed Exts.P5 and P7 applications and remitted the report to the same advocate commissioner with a direction to conduct an auction among the sharers to assess the value of the school situated in item No.3 property.
(iii) Pursuant to Ext.P8 order, the Advocate Commissioner filed Ext.P9 revised report and plan. In the meantime, Madhavi died. The respondents 1 and 2, the legal representatives of Madhavi, filed Ext.P10 application to set aside the Ext.P9 plan and report. The petitioners and other respondents objected to the same by filing Ext.P11 counter statement. However, the court below, by the impugned Ext.P12 order, set aside Ext.P9 revised report, plan and share list, appointed a new Advocate Commissioner and directed a further enquiry to be conducted.
(iv) The court below has passed Ext.P12 order presumably because the Advocate Commissioner failed to conduct the auction as directed in Ext.P8. Neither the petitioners, the respondents, nor the Commissioner was aware of the direction in Ext.P8 order to conduct the auction.
(v) The court below has not considered the objections filed by the parties to Ext.P10 application. The school is situated in Item No.3 property and is the self- acquired property of late 'Komar'. After his death, Othenan and Govindan, the sons of Komar, are acting as the Managers of the school. As per the custom prevailing in the Kansan community, only male family members have the right over the property. The school was rightly allotted to the group of the petitioners by the Commissioner for valid reasons.
(vi) The court below has arbitrarily directed the auction. Exts.P8 and P12 orders are patently erroneous and wrong and are liable to be set aside. Hence, the original petition.
3. Heard; Sri.Cibi Thomas, the learned counsel appearing for the petitioners and Sri.C.P.Peethambaran, the learned counsel appearing for the respondents.
4. Sri.Cibi Thomas assailed Exts.P8 and P12 orders by contending that the court below has erred in ordering the auction of the School without a request from the sharers as mandated under Sections 2 and 3 of the Partition Act, 1893 (in short, ‘Act’) and has held by this Court inSathi Lakshmanan.K.C v. P.C.Mohandas and others [ 2008 (4) KL
