Partition
of Property
1. In a suit for partition, at the first stage, the court decides whether the plaintiff has a share in the
suit property and is entitled to
division and separate possession.
This
position is exercise of judicial function and results in a decree under Order
XX Rule 18(1) termed as preliminary decree under Order XX Rule 18(2) of CPC.
The
decree is termed a preliminary decree when further proceedings have to be taken
before the suit can be completely disposed of. It is a final decree when such
adjudication completely disposes of the suit. It may be partly preliminary and
partly final.
·
Shub Karan Bubna @ Shub Karan Prasad Bubna v.
Sita Saran Bubna, (2009) 9 SCC 689 (Para 7, 10)
2. If the court can
conveniently and without further enquiry, make the division without assistance
of the commissioner or upon agreement of the parties or where the parties agree
upon the manner of division, the court can pass a composite decree comprising
the preliminary decree declaring the rights of several parties as well as the
final decree dividing the properties by metes and bounds in regard to
immoveable properties.
- Shub Karan Bubna @ Shub Karan Prasad
Bubna v. Sita Saran Bubna, (2009) 9 SCC 689 (Para 18.2 and 20)
3. In order to determine
whether a decree in a suit was a preliminary decree or a final decree or a
decree partly preliminary and partly final, reference has to be made to the
decree itself. Where it is a compromise decree, the answer to this issue has to
be gathered from the “intention of the parties”. The intention would be
gathered from the facts which would indicate as to whether anything remained to
be done for the future on the question of partition of properties jointly held.
·
Rachakonda Venkat Rao v. R. Satya Bai, (2003)
7 SCC 452 (paras 19 and 22.)
4. If a division by metes
and bounds cannot be made without further enquiry, then first, the preliminary
decree shall be passed and thereafter a commissioner is appointed to physically
examine the property to suggest manner of division.
- Shub Karan Bubna @ Shub Karan Prasad
Bubna v. Sita Saran Bubna, (2009) 9 SCC 689 (para 18.2)
5. Consequential division
by metes and bounds is a ministerial or administrative act requiring physical
inspection, measurements, calculations and consideration of various
permutations/ combinations/alternatives of division which is referred to the
collector/local commissioner under Order XXVI. This duty in the normal course
of the proceedings before the court is a continuation of the preliminary
decree.
6. If only a preliminary
decree is passed at the first stage, no separate application is necessary for
passing of a final decree.
- Shub Karan Bubna @ Shub Karan Prasad
Bubna v. Sita Saran Bubna, (2009) 9 SCC 689
·
Bimal Kumar & Anr. v. Shakuntala Debi,
AIR 2012 SC 1586
7. On receipt of the
report of the commissioner and hearing objections thereto, the court passes the
final decree whereby the relief of separating the property by metes and bounds
is granted.
- Shub Karan
Bubna @ Shub Karan Prasad Bubna v. Sita Saran Bubna, (2009) 9 SCC 689
(para 18.2)
8. In a partition suit, a
final decree can be in the form of a decree passed on a compromise between the
parties in its entirety leaving nothing to be done in the future.
- Bimal Kumar
v. Shakuntala Debi, AIR 2012 SC 1586 (paras 26 and 28)
9. In a partition suit,
under Section 2 of the Partition Act,
having regard to the nature of the property or large number of shareholders or
in other special circumstance, if it appears to the court that the division of
the property cannot reasonably or conveniently be made and that a sale of the
property would be more beneficial, it can direct sale of the property and
distribution of the proceeds as per shares declared. In addition, the court may
be requested to direct sale by shareholders, interested individually or
collectively to the extent of one moeity or upwards.
- Shub Karan Bubna @ Shub Karan Prasad
Bubna v. Sita Saran Bubna, (2009) 9 SCC 689 (para 18.2)
·
R. Ramamurthi Iyer v. Raja V. Rajeswara
Rao, (1972) 2 SCC 721 (para 8)
10. It is not obligatory
on the court to give a positive finding that the property is incapable of
division by metes and bounds. It should only, “appear” that it is not so
capable of division. Parties may jointly agree to such dispossession of the
property.
- R. Ramamurthi
Iyer v. Raja V. Rajeswara Rao, (1972) 2 SCC 721 (para 13)
11. The request from the
shareholder (s) for sale of the property does not have to be in the nature of a
formal prayer.
·
Rani Aloka Dudhoria v. Goutam
Dudhoria, (2009) 13 SCC 569 (para 13)
- R. Ramamurthi
Iyer v. Raja V. Rajeswara Rao, (1972) 2 SCC 721 (para 13)
If a
party or co-sharer asks for sale of a property under Section 2 of the Partition Act,
it is the duty of the court to order the valuation of the shares.
·
Malati Ramchandra Raut v. Mahadevo Vasudeo
Joshi, AIR 1991 SC 700
12. The words employed in
Section 3(1) only require the shareholder has to merely inform the court or to
notify to it that he is prepared to buy at a valuation the share of the party
asking for sale. No formal application for the purpose is necessary.
- R. Ramamurthi Iyer v. Raja V.
Rajeswara Rao, (1972) 2 SCC 721
It
is obligatory upon the court to offer to sell the same to the shareholder(s)
who seek to buy the shares of the other party in terms of Section 3 at the
price determined upon such valuation. The court has no discretion or option or
choice in this matter.
- Malati Ramchandra Raut v. Mahadevo
Vasudeo Joshi, AIR 1991 SC 700
- R. Ramamurthi Iyer v. Raja V.
Rajeswara Rao, (1972) 2 SCC 721 (paras 8 and 11)
13. The right of a
co-sharer to purchase a property directed to be sold under Section 3 of the Partition Act
accrues on the date the co-sharer request the court to sell the property to
him. The valuation of the shares has to be made on the date of accrual of this
right.
- Malati
Ramchandra Raut v. Mahadevo Vasudeo Joshi, AIR 1991 SC 700 (para 10)
14. In a partition suit,
the plaintiff is not wholly dominus
litis. After a shareholder has applied for leave to buy at a
valuation under Section 3 of the Partition Act,
the plaintiff who requested the court to exercise the power under Section 2 of
ordering the sale, cannot withdraw the suit under Order 23 Rule 1 of the CPC.
- R. Ramamurthi Iyer v. Raja V.
Rajeswara Rao, (1972) 2 SCC 721 (paras 9 and 10)
15. In partition matters,
it is always open to the parties to enter into a fresh arrangement including a
decision to be again joint with respect to the properties meaning thereby that
they may throw the properties in the common pool once again.
- Rachakonda Venkat Rao v. R. Satya Bai, (2003) 7 SCC
452 (para 21.)
[The above Summation of the principles from
various judgments of the Supreme Court of India summed up by the Delhi
High Court in a judgment titled Kusum Kumria Vs. Pharma Venture (India)
Pvt. Ltd. dated 20 October 2015 authored by Justice Gita Mittal.]
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