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2022 Supreme(Online)(Ker) 81200
IN THE HIGH COURT OF KERALA AT ERNAKULAM
C.S. DIAS, J
T.V.ARAVINDAKSHAN – Appellant
Versus
T.V.CHANDRIKA – Respondent
OP(C) NO. 605 OF 2018
For the Appellants/Petitioners: Sri.Cibi Thomas
For the Respondents: Sri.C.P.Peethambaran
Orders for property auction in partition must be based on requests from co-owners, failing which courts must adhere to established partition laws.
Headnote:(A) Partition Act, 1893 - Sections 2 and 3 - Original petition challenges orders for auctioning property in a partition dispute - Lower court directed auction without party request, contrary to law - Court emphasized that division must be feasible and requested by co-sharers for sale - Erroneous procedure found in original orders that dismissed prior partition assessments. (Paras 4, 10, 14)
(B) Legal scrutiny - Validity of auction orders disputed, integral to proper partition adjudication - Court found mandatory requests from any co-owners lacking, leading to unauthorized directive by lower court. (Paras 8, 12, 16)
Facts of the case:
Dispute involves partition and auction of property rights among co-sharers defined by inheritance, critically addressing lower court's decision to order auction without legitimate requests.
Findings of Court:
Clarified that auction orders by the lower court were unwarranted; procedural adherence to statutory standards was imperative - mandatory consideration for equitable partition necessary.
Issues: The key issue was whether the lower court acted illegally by ordering an auction without requests from co-owners in line with established law.
Ratio Decidendi: Court held that orders must comply with provisions of the Partition Act, ensuring requests of any stakeholder are a prerequisite for sales; failure to adhere represents procedural impropriety.
Result: Original petition allowed; previous orders set aside, court directed revision of final decree application expeditiously while considering parties' rights fairly.
| Table of Content |
|---|
| 1. dispute over partition order issued without co-owner request. (Para 2) |
| 2. arguments on improper orders made by the lower court. (Para 4 , 5) |
| 3. court emphasized legal necessity of requests under partition act for auction. (Para 6 , 9 , 10 , 14) |
| 4. final decision mandates reconsideration of lower court's orders. (Para 16) |
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.
