An auction held among sharers in a partition suit is valid even if it diverges from public sale requirements under the Partition Act, provided all parties participated without objection.

J U D G M E N T

The final decree in a suit for partition is under challenge in this second appeal. The third plaintiff in the suit is the appellant.

2. The property sought to be partitioned in the suit was a property measuring 13 cents. There were six sharers. Five among the sharers filed the suit for partition of their 5/6 share in the suit property. A preliminary decree was passed in the suit on 20.10.2004 declaring the 5/6 share of the plaintiffs over the suit property. Thereafter, the plaintiffs filed I.A.No.892 of 2005 for passing of a final decree in respect of their shares. An Advocate Commissioner was appointed in the final decree proceedings to effect partition of the shares of the plaintiffs. The Advocate Commissioner, however, reported that metes and bound partition of the suit property is not possible. In the RSA No.810 of 2011 2 light of the report of the Advocate Commissioner, the plaintiffs filed I.A.No.3460 of 2006 seeking orders to value the suit property by an approved valuer to enable them to move the court for sale of the suit property. An approved valuer was thereupon, appointed by the court to value the suit property and the valuer appointed by the court assessed the market value and forced sale value of the suit property at Rs.32.72 lakhs and 26.20 lakhs respectively. The plaintiffs filed objections to the valuation contending that the suit property will not fetch more than Rs.60,000/- per cent. In the meanwhile, the plaintiffs also filed I.A.No.4092 of 2008 seeking orders to auction the suit property among the sharers. When I.A.No.4092 of 2008 was taken up for hearing, there was a consensus among the sharers as to the valuation of the suit property and consequently, the court ordered auction of the suit property among the sharers on 30.7.2009 fixing the upset price at Rs.13,00,000/-. Accordingly, the suit property was auctioned among the sharers on 30.7.2009 and the first plaintiff RSA No.810 of 2011 3 purchased the suit property for a sum of Rs.24,90,000/-. On 31.7.2009, the court confirmed the auction in favour of the first plaintiff. Thereupon, the first plaintiff deposited the the bid amount. On deposit of the bid amount, a final decree was passed by the trial court specifying the amounts due to the parties out of the sale proceeds of the suit property. 3. A few months after the final decree, the third plaintiff preferred an appeal against the same, contending among others, that the bid by first plaintiff in the auction was for and on behalf of the other plaintiffs also and therefore, the trial court ought not have confirmed the sale in favour of the first plaintiff. Alternatively, it was also contended that the suit property would fetch more than Rs.50,00,000/- and therefore, the auction of the property for Rs.24,90,000/- has resulted in gross injustice to the parties. The appellate court rejected the contentions raised by the third plaintiff and confirmed the final decree passed by the trial court. The third plaintiff, who is aggrieved by the concurrent decisions against him has thus RSA No.810 of 2011 4 come up in this second appeal.

4. At the time of admission, the following question of law was formulated for decision in the second appeal :

“When under the preliminary decree 5/6 shares were jointly allotted to eight plaintiffs and one share jointly to the two defendants and based on the report of the Commissioner that it is not possible to divide the property into two shares as provided under the preliminary decree application filed jointly by all the plaintiffs for sale of the property among the sharers as provided under sections 2 and 3 of Partition Act was allowed and permission was granted to the plaintiffs to participate in the auction and the first plaintiff on behalf of the plaintiffs participated in the auction and purchased the property, whether the courts below were justified in holding that the property was purchased by only the first plaintiff and the remaining plaintiffs are only entitl