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HIGH COURT OF KERALA
K.M.JOSEPH, A.M.SHAFFIQUE, JJ
RAJAN P C – Appellant
Versus
P C JOHN & ANOTHER – Respondent
REGULAR FIRST APPEAL 777/2011
Partition - Partition Act - Sections 2, 3, 6, 8 - The Court interpreted the requests for sale under Sections 2 and 3 of the Partition Act, asserting that a valid request for public sale is necessary for invoking Section 3 rights. The Court concluded that the order for auction among co-owners did not constitute a decree under Section 8, rendering the appeal not maintainable.
Fact of the Case:
The case involved a partition suit between brothers over property where a preliminary decree granted them 1/3 share each. Disputes arose over requests for sale, leading to the dismissal of one party’s plea for valuation and purchase of shares under the Partition Act.
Finding of the Court:
The Court concluded that the request made was not solely for public sale as required under Section 2 of the Partition Act. Consequently, it held that there was no valid legal right under Section 3 for the petitioner to demand valuation and sale, leading to the dismissal of both the Original Petition and the Regular First Appeal.
Issues: Whether the request for sale made was valid under Section 2 of the Partition Act, and if the dismissal of the appeal seeking rights under Section 3 was justified.
Ratio Decidendi: The request for sale must clearly align with the stipulations of Section 2 of the Partition Act for rights under Section 3 to be invoked. The composite nature of the request here indicated it did not qualify as a proper request under the act.
Final Decision: The Original Petition and Regular First Appeal are both dismissed.
JUDGMENT
K.M. Joseph, J.
The above cases being connected and being between the same parties, we dispose of the two cases by the following common Judgment.
2. The appellant is also the petitioner. The parties are brothers. A Suit for partition resulted in a preliminary decree. The parties were declared to be entitled to 1/3rd share in the property. The property which is the subject matter of dispute, is an extent of 11.850 cents with a shop room and residential building situated at Thrippunithura.
3. Originally, the first respondent filed IA.No.4560 of 2009 seeking to pass final decree. The said Application was later on withdrawn. According to the first respondent, it was on the basis OP(C) NO.3310/2011 O 2 that there was some compromise. Still later, Ext.P2 Application which was numbered as IA.No.1642/2011 was filed by the respondents. It was purported to be filed under Order 20 Rule 18 and Order 26 Rule 13 and Sections 54 and 151 of the CPC. The prayer was as follows:
“For the reasons stated in the accompanying affidavit, this Honourable Court may be pleased to appoint an Advocate Commissioner to conduct an auction among the petitioners and the respondent herein for the sale of the plaint schedule property, or by conducting public auction sale if the sale among the co-owners is not feasible and to allot 1/3rd share each of the sale amount to each of the petitioners respectively and allowing the costs of the proceedings.”
Thereupon, the learned Second Additional Sub Judge, Ernakulam proceeded to pass an order dated 08th July, 2011. The said order is produced as Ext.P3 in the Original Petition and it is also the order which is produced in the Appeal which is alleged to be the deemed OP(C) NO.3310/2011 O 3 decree within the meaning of the Partition Act. The said order reads as follows:
“Petitioners are also ready to participate in the auction sale. Hence this court orders auction sale of the decree schedule property among the co-owners. Sale will be conducted in open court on 22-08-2011 at 2.30 P.M. Also furnish the fair value if any, fixed by the government.”
Petitioner/appellant filed IA.No.5167/1. It was a petition purportedly filed under Section 3 of the Partition Act, 1893 (hereinafter referred to as the Act). The IA. reads as follows:
“For the reasons stated in the accompanying affidavit, it is most respectfully prayed that this Honourable Court may be pleased to order valuation of the shares of the petitioners in I.A.No.1642/2011 which they are having upon the property to the partition and offer the same to the petitioner herein for purchase in tune with the statutory provisions in the interest of justice.”
OP(C) NO.3310/2011 O 4 A Counter Affidavit was filed which is produced as Ext.P5 in the Original Petition. The learned Judge proceeded to pass Ext.P6 order dismissing the Application filed by the petitioner/appellant. The prayer sought in the Original Petition is to quash Ext.P6. A further direction is sought to the IInd Additional Sub Court, Ernakulam to effect a proper valuation of the shares of the respondents and to offer the same to the petitioner in view of Section 3 of the Act by allowing Ext.P4 Application.
4. The petitioner in the Original Petition also filed RFA.No.777/2011. Even though the Office had actually noted defect, this Court had directed number of the Appeal on the basis that the impugned order would be a deemed decree under Section 8 of the Act.
5. As already noted, Ext.P3 in the Original Petition is produced as the deemed decree in the Appeal which we have already extracted.
OP(C) NO.3310/2011 O 5
6. We heard Shri C. Varghese Kuriakose, learned counsel for the appellant/petitioner and also Shri K. R. Mohanan, learned counsel appearing on behalf of the respondents. Learned counsel for the appellant/petitioner would submit that this is a clear case where the court has acted illegally in passing Ext.P6 order which was produced in the Original Petition. He would submit that undoubtedly, the respondents have made a
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