9911796707
TMI Blog1978 (3) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondent was already in occupation of the premises as a tenant paying a monthly rent of ₹ 53/-, inclusive of water-tax, to the then proprietor. The plaintiffs-appellants, who, at the material time, were members of a joint Hindu family governed by Mtakshara Law, purchased the remaining 13/16 share in the suit premises for ₹ 9,000/- by a sale deed, dated April 27, 1957. They already owned and possessed a parcel of land adjacent to the suit premises and they intended to open a market there after amalgamating the same with their share in the suit premises. They asked the respondent to partition and separate their share. The respondent did not agree. Therefore, on August 8, 1959, on the preceding facts, the appellants, institute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be put to sale between the plaintiffs and the defendant, and the same shall be sold to that party who offers to pay the highest price above the valuation made by me . According, the suit property was repeatedly auctioned between the parties. The first was herd in September 1963, the highest bid was offered by the plaintiffs. The last auction was held in June 1965, the highest bid being ₹ 50,000/- offered by the plaintiffs. The defendant was given the option to purchase the property at that price and deposit the sale money by July 19, 1965. The defendant failed to do so. The Court thereon ordered that the next highest bid of the plaintiffs to the extent of ₹ 50,000/- is accepted . Against the decree of the Trial Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceeds the argument has allowed to defendant-respondent to purchase the share of the plaintiffs in the suit property for ₹ 9,000/- only; while the current market value of his share would be more than 10 or 12 times of that figure, which was highly unjust and unfair to the appellants. As against this, it is urged on behalf of the respondent, that once it is held that the Act does not apply, the Court has no power to sell the property. It is pointed out that the High Court had given the respondent the first option to purchase the plaintiffs share in the property at the value of ₹ 9,000/- because the equity was entirely on the side of the respondent, that the plaintiffs were residing away from the property, they owned 5 or 6 houses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecial circumstances, a division of the property cannot reasonably or conveniently 'he made, and that a sale of the property and distribution of the proceeds would be more beneficial for all the shareholders. Even when both these conditions are satisfied, the Court has a discretion to direct or not to direct sales of the property and distribution of the proceeds. This is clear from the word may used in this Section. It will be seen from the above analysis that the request contemplated in No. (1) is a sine qua non for directing a sale because such a request necessarily signifies his willingness to have his share converted into money, so that the co-sharers may, by means of the procedure provided in Section 3, buy them out. The re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... request within the ,purview of Section 2 had been made by any of the parties (co-sharers). That condition precedent; for invoking Section 3(1) was lacking. Thus considered, it is clear that the provisions of Sections 2 and 3 of the Partition Act are not applicable to the peculiar circumstances of the case. At the same time, there is a concurrent finding of fact 'recorded by the courts below that the suit property is so small, that it cannot be conveniently and reasonably partitioned by metes and bounds, without destroying its intrinsic worth. This finding is un- assailable. In our opinion in such a situation the Court can devise such other feasible mode for effecting partition as may appear to it to be just and equitable in the circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection it is pertinent to note that when in 1963 this Property was, in execution of the decree of the trial court, put to auction, the highest bid fetched by it was ₹ 50,000/-. It was therefore, highly unfair to the plaintiffs to fix the value of their share at ₹ 9,000/-, even on March 20, 1967 when the High Court's judgement was pronounced. Although the value of the property could be fixed by auction between the two parties, we feel that this method' would be unsatisfactory in this case as the plaintiffs who own the, major share and have unlimited resources, would outbid the defendant. In the circumstances, we think that the more equitable method would be to take the value of the property as ₹ 50,000/- in 1963 and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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