Durga Charan Seal vs Ram Charan Seal

Mitter, J.—This is an appeal from an order rejecting a prayer for grant of leave to the Appellants jointly to buy the shares of the Plaintiffs-Respondents in premises No. 5, Nilmoni Dutt Lane, Calcutta, at the valuation made by the Commissioner of Partition appointed in the suit.

The suit was filed by Ram Charan Seal and Abhoy Charan Seal as Plaintiffs. They are step-brothers. The Defendants are Durga Charan Seal, a brother of Abhoy Charan Seal and Bhabatarini, mother of Abhoy and Durga. The admitted shares of the parties in the said premises are as follow:

Plaintiff Ram Charan Seal : 18/60th share

Plaintiff Abhoy Charan Seal : 17/60th share

Defendant Durga Charan Seal : 17/60th share

Defendant Bhabatarini : 8/60th share.

The property has an area of 1 cottah, 2 chattacks, 4 sq. ft. and is a partly two and partly three storeyed structure with one stair-case. According to the plaint the property could not be partitioned by metes and bounds and a prayer was made for sale of the premises and division of the sale proceeds among the parties in proportion to their shares. According to the petition which formed the basis of the application of the Appellants it was contended by the Plaintiffs at the time of the hearing of the suit on February 21, 1964, that by reason of the nature of the property the same could not be conveniently partitioned amongst the parties physically by metes and bounds according to their respective shares whereupon the parties agreed that the commissioner of partition to be appointed should sell the same. As the rights of the parties hinge upon the decree passed it is necessary to set forth the following relevant portions thereof:

This cause coming on this day in the presence of the Advocates for the parties and the Plaintiffs through their Advocate not pressing the claim for accounts and upon the parties agreeing that the property in suit cannot be partitioned and that the commissioner of partition to be appointed herein shall sell the said property, it is declared that the shares of the parties are as follows....

And it is ordered and decreed with the consent of the parties that a partition be made of the said premises with the appurtenances into sixty equal parts or shares and that a commission do issue directed to Mr. K.G. Paul, Engineer, as a commissioner of partition and survey or....And it is further ordered and decreed that the said commissioner do sell the said premises by public auction to the highest bidder provided the said commissioner shall consider that a sufficient sum has been offered and that for the purpose of such sale the said commissioner surveyor do fix a reserve bidding and it is further ordered and decreed that the parties respectively be at liberty to bid for and purchase the same the parties being at liberty to set off their respective shares in the sale proceeds pro tanto against the purchase-money.

The commissioner of partition valued the property at Rs. 22,651 on June 16, 1964. Before, however, he could put the property up to sale the Defendants took out a chamber summons for the relief mentioned. They claim to have a preferential right to the property on the ground that the mother has all along been residing there and that the family deity is also installed in the said property and is being worshipped by her and that she bears a great sentimental value for the property. Moreover it is said that the first Plaintiff has acquired a property at Kadamtola, Sodepur, in the name of his wife and the second Plaintiff has acquired a property at Kasi Nath Dutt Road, Baranagore, but the Applicants have no alternative accomodation where they can shift to in case the property be sold to a stranger.

The only points worth noting in the affidavit-in-opposition are:

(a) The mother has not all along been residing at No. 5, Nilmoni Dutt Lane as claimed and that for a time she had been living elsewhere.

(b) There are some prospective purchasers willing to pay-about Rs. 32,000 for the property.

(c) The Plaintiff Abhoy Charan Seal has no property at Kasi Nath Dutt Road, Baranagore, as alleged.

The learned trial Judge did not make any order on the application. The points urged on behalf of the Respondents for maintaining the said order were first that the decree was one passed by consent and as such, there can be no variation of the order for sale contained therein except by agreement and secondly, there is no scope for application of Section 3 of the Partition Act of 1893 in the facts and circumstances of the case.

On behalf of the Appellants it was contended that the portion of the decree relating to sale of the property was not by consent. It was further argued that apart from the provisions of the Partition Act the Court has inherent jurisdiction to direct the sale of the property between the parties to the suit or in a fit and proper case to direct evaluation of the property and allotment of the same in entirety to the co-sharer in occupation with provision for payment of compensation to the other co-sharers. It was also argued that this jurisdiction could be exercised even after a preliminary decree in a partition suit.

The foremost point for determination is whether the decree was one passed on consent of parties and if so, whether it can be varied except by similar consent. Mr. Chatterjee, Learned Counsel for the Appellants, strongly argued that only the provisions made in the decree either prefixed by the words ''by consent of parties'' or ''the parties agreeing'' should be taken as based on a consensus of parties while the others were ordinary provisions in a decree for partition which can on proper cause being shown be modified or varied in appeal. It is to be noted that the words ''the parties agreeing'' or ''with the consent of parties'' occur only in two places in the decree. On a construction of the decree, however, it appears to me that the substantive portions thereof were by consent of parties even though not expressly declared to be so by the decree itself. The first thing to notice about the decree is that the parties had agreed that the property in suit could not be partitioned. The sentence which records the agreement also provides that "the commissioner of partition to be appointed herein shall sell the said property". Reading the sentence as a whole I have no doubt that the parties not only agreed that the property could not be partitioned but that they consented to the commissioner of partition selling the same. The agreement relates not only to the fact that the property was incapable of partition by metes and bounds but also to their common desire to have the same sold by the commissioner of partition. The two must go together; for if the property cannot be partitioned there was no use in having a commissioner of partition appointed unless he was to value the property and put it up to sale whether only between the parties or by public auction or private treaty to outsiders. Once it is held that the parties had agreed that the commissioner of partition should sell the property the fact that in a later portion of the decree where the commissioner is directed to sell it by public auction no repetition is made of the agreement of the parties to that effect is immaterial. It may also be noted that there is a declaration of the shares of the parties which is not prefixed by any words showing an agreement between the parties. It is clear, however, that such a declaration of the shares mentioned could only be with the consent of parties, otherwise the shares would not be what they are declared to be by the decree, the partition being among four sons and their mother the second wife of Kunja Behari Seal, deceased.

If the parties had agreed that the property was to be sold by the commissioner of partition by public auction to the highest bidder I do not see my way to make any modification thereto and to direct that the property should be allotted to the person in occupation or that it should be put to auction among the parties. That would clearly be going against the agreement of the parties without any justifiable cause.

This is sufficient to dispose of the appeal but as the other points were canvassed at some length, I may indicate my views thereon.

The next point to be considered is whether if the above provisions in the decree as to the sale of the property were not based on consent of parties it is open to the Court to pass on order directing the allotment of the property to the Defendants Appellants on payment of compensation to the Plaintiffs on the basis of the valuation made by the commissioner of partition or directing a sale by auction of the property exclusively between the co-sharers.

We may now proceed to examine the decided cases on this point of this High Court. The earliest decision seems to be that of Hullodhur Mookerjee v. Ramnath Mookerjee (1862) 1 Mar 35 where it was observed that the difficulty of making a partition was not a valid ground for refusing a partition. In Rajcoomaree Dossee v. Gopal Chunder Bose ILR (1878) Cal. 514 the question was whether the property should be divided as desired by one of the two co-sharers or kept joint as directed by the Courts below. There was no dispute that the property was by nature divisible. In that case it was observed by White, J.:

considering, however, the nature of the property and the fact that some of the co-parceners desire that it should continue undivided and be used as heretofore in its present condition, we are not prepared to direct that it should be divided amongst the three co-parceners in proportion to their shares, without giving the co-parcener or co-parceners who may wish to keep it entire an opportunity of doing so, if he or they can agree on the subject with the other co-parceners.

In the result the Court directed the property to be valued and if any one or two of the co-parceners wished to retain the same separately or jointly as part of his or their share, the proportionate share of the value was to be paid to the remaining co-parcener or co-parceners who did not wish to remain joint arid if the parties could not arrive at such an agreement the property was to be partitioned. If none of the three co-parceners agreed to take the same as part or parts of their share or shares, paying to the other or others of them proportionate shares of its value, or if the three co-parceners could not agree amongst themselves as to which of them was to be allowed to take the same as part of his or their share or shares, then the property was to be divided between the co-parceners in proportion to their respective shares. Mr. Justice Mitter who concurred in the order said that the lower Courts were not precluded from dealing with the property in the mode in which they had done but that the order was varied because the one passed by the High Court was more equitable.

It is to be noted that no question was canvassed as to whether a co-parcener could be allowed to retain the property on payment of compensation to the other or others against their wishes. Rather it would appear that the High Court gave the parties an opportunity of coming to an agreement on the point and if they could not do so the property was to be partitioned.

In Ashanullah v. Kali Kinkur Kur ILR (1884) Cal. 675 the Plaintiff who had purchased two-thirds of a property consisting of ten houses sued to have a partition with the intention of breaking the same down and removing those houses of which he would obtain possession by the decree. The Munsiff gave him a decree for six houses out of nine, as one of the houses had fallen down. The subordinate Judge directed that the houses should be valued and that two-thirds of the value together with interest should be given to the Plaintiff. In further appeal to the High Court the Plaintiff contended that the subordinate Judge was not right in giving him the price of the houses instead of the houses themselves and this contention was accepted by the Bench consisting of McDonell and Field, JJ. It was observed:

the principle in these cases of partition is that if a property can be partitioned without destroying the intrinsic value of the whole property, or of the shares, such partition ought to be made. If, on the contrary, no partition can be made without destroying the intrinsic value, then a money compensation should be given instead of the share which would fall to the Plaintiff by partition.

As the Defendant, had not objected before the subordinate Judge that the nine houses could not be partitioned without destroying the value of the property the decree of the subordinate Judge was set aside. The case was remanded with a direction that there should be a determination as to the portion of the property which should be given to the Plaintiff as representing the two-thirds share which he obtained by purchase and the Munsif should embody in his final decree the result of the commissioner''s investigation and report.

This case contains a dictum that if the property is incapable of partition by metes and bounds money compensation should be given to the person who does not get a share of the property on partition equivalent to the value of his share.

The next decision in point of time is that of Basunta Kumar Ghosh v. Moti Lal Ghosh (1907) 15 C.W.N. 555 (fn.). This decision was given after the coming into force of the Partition Act of 1893. In this case the Defendants had built a dwelling house on a plot of land of 7 cottahs without opposition from the Plaintiff in the partition suit, who was a stranger and owned only a 1/10th share in, it and in an adjoining plot of 1 bigha, 6 cottahs besides 1/20th share in a plot of 1 bigha covered by a tank. The lower appellate Court allowed the Defendant to buy up the Plaintiff''s shares at a proper valuation on finding that it would be very inconvenient for all parties concerned if the plots were divided by metes and bounds. Before the High Court it was contended on behalf of the Plaintiff that the Courts below were wrong in applying Section 4 of the Partition Act of 1893, that the Plaintiff was entitled to partition of the tank and that Section 4 of the Act of 1893 had not been followed. The Court observed that

It seems to us from the manner in which this case has been argued before us that no mode of partition whatever would satisfy the Plaintiff. The objections to the partition effected by the lower Courts seem to Us perverse and unreasonable.

According to the Court:

It would certainly be very inconvenient and improper to have attempted to divide this plot, particularly as the Plaintiff is a stranger to the family of the Defendants and has a right only to a 1/10th share in it.

Similarly, Plot No. 2 should be left in the enjoyment of the occupants of the dwelling house erected on Plot No. 1.... Whether Section 4 of Act IV of 1893 applies or not, it is a well-known principle of equity, which must be adopted in all partition cases, that, when it is inconvenient to divide a property, that property must be left in the possession of the person in occupation and the other person who cannot conveniently get actual possession, compensated.

This case was referred to in Debendra Nath Bhattacharjee v. Hari Das Bhattacharjee (1910) 15 C.W.N. 552 . Here the property which was the subject matter of the suit consisted of land a little over three cottahs; part of it was covered by a chandimandap, an atchala, a baithakkhana and a room while the rest was open land. The Plaintiffs alleged that they were entitled to a two-thirds share of the property, that it was not convenient to have joint possession thereof and that it was of such a nature that if it was divided into three portions to be allotted to the three co-sharers, its value would be considerably diminished. They accordingly prayed that the property might be valued by the Court and they might be allowed to obtain exclusive possession thereof upon payment of compensation to the Defendant proportionate to his share of the property. The Defendant conceded that if the property was divided into three portions it would be unfit for use, but he contended that the property should be given to him at a valuation. The Courts below made a decree in favour of the Plaintiffs on the ground that as upto the date of the suit they were in possession of some of the structures on the land they had a preferential claim to exclusive possession of the whole property. The cases mentioned above were referred to in the judgment and the principles laid down in Ashanullah v. Kali Kinkur Kur Supra were reiterated. The Court noted that before the Partition Act of 1868 (31 and 32 Vict., Ch. 40) Courts m England had no authority to compel a sale of the property, the only remedy of the co-tenants being to compel an actual partition irrespective of the loss and inconvenience it might occasion, or to buy or sell as best they could by their own voluntary agreement. The Court further observed that the Plaintiffs had not chosen to follow, the procedure laid down in the Partition Act of 1893 and they claimed, as a matter of right, to acquire the whole property at a valuation and basing their preferential right upon the circumstance that at the time of the commencement of the suit they occupied the disputed property exclusively though it was joint property. The Court held that

the Defendant is not bound to transfer the property to them at a valuation. There is no statutory provision which compels him to do so.... To compel one of the parties to transfer his share to another co-owner would, in our opinion, be arbitrary and unjustifiable interference with the rights of the owner in that property.... In the case before us, both the parties are agreed that the nature of the property is such that a division thereof amongst all the shareholders cannot reasonably or conveniently be made. The proper course, therefore, to follow is to direct a sale of the property among the co-sharers : and it should be given to that shareholder who offers to pay the highest price above the valuation made by the Court.... The view we take is supported by the principle which underlies the cases of Williams v. Games L.R. 10 Ch. App. 204 and Pitt v. Jones, 5 Appeal Cases, 651.

With great respect, it is difficult to appreciate the conclusion arrived at in this case. If the position in law was that apart from the Partition Act of 1893 the Court had no power to compel a sale of the property, how could it order that the property should be put up to auction among the co-sharers? The learned Judges noted that the position was the same in England before the passing of the Partition Act of 1868. The cases of Williams v. Games (1875) L.R. 10 Ch. 204 and Peter Pitt v. Thomas Webb Jones (1880) 5 A.C. 651 were decided after the Partition Act of 1868 and these decisions were based on the rights conferred by that Act. They do not sanction a sale among the co-sharers apart from the Act. In Williams v. Games (1875) L.R. 10 Ch. 204 the facts were as follows: The Plaintiffs who were the owners of one-seventh of an estate filed the bill praying for a partition or a sale. Before the Master of the Rolls they asked for a sale, as did the owners of another one-seventh share. The owners of the other five-sevenths objected to the sale and asked for a partition. The Master of the Rolls made a decree, that certain of the Defendants undertaking to purchase the two-sevenths, a valuation thereof should be made and that on payment a conveyance should be executed. Delivering the judgment of the Court of Appeal James L.J. observed:

it is clear that the Act (Partition Act) was intended for the benefit of those part owners who want to have a sale, in which case the other parties interested who object to a sale may be compelled to buy the shares or have a sale. But there is nothing to compel a man to sell his share; the whole section is for the benefit of those who want a sale. If the result of a Plaintiff asking for a sale of the whole is that he must give up his share and have it valued, he may be compelled to move to vary the certificate and then to appeal to this Court.... He may, on being put to such terms, withdraw his request for a sale and have a partition.

Mellish L.J. observed that the Section 5 was intended for the benefit of part owners who desired a sale and added:

I cannot see any reason to think that it was intended to compel a part owner to sell his share against his will.

In Pitt v. Jones Supra the facts were as follows: The owner of three-sixteenths of a property sought to have a sale of it. The owners of the rest objected to it and offered to purchase the shares of the others at a valuation. The Vice-Chancellor ordered a valuation under the provisions of Section 5 of the Partition Act. The Court of Appeal decided that the case fell u/s 3 of the Act and reversed the decision directing a sale. This was upheld by the House of Lords. The scheme of the Act was examined at some length by the learned Law Lords. While Lord Hatherley was for maintaining the decree of the Vice-Chancellor Lord Blackburn and Lord Watson took a contrary view. It will serve no useful purpose o examine this decision at length. It is enough to say that it was not held that the Court had a power to direct a sale of the property even among the co-sharers apart from the Partition Act. Lord Watson said:

before the passing of the Partition Act the Respondents would have had an absolute right to a decree of partition; and it appears to me that the leading purpose of the Act, as disclosed in Sections 3, 4 and 5 was to enable the Court to substitute, in certain cases, sale and distribution for division which was the only remedy previously competent. The new remedy thus given is, in reality, another form of partition, those interested taking their new shares in money instead of in specie.

In Pannalal Dutt v. Hrishikesh Dutt (1948) 86 C.L.J. 144 the facts were as follows: In a suit filed in this Court the Plaintiff held one-sixth share, the Defendants 1 and 2 each holding one-sixth share, Defendant No. 3 holding one-fourth share and the Defendants 4, 5 and 6 being jointly entitled to the balance of one-fourth share. The main controversy in the suit was whether the property should be partitioned according to the shares of the parties or whether it should be sold and if so whether by public auction or between the parties. It was admitted on all hands that having regard to the smallness of the property and the number of co-sharers it could not be reasonably or conveniently partitioned among them. None of the parties had made a request to the Court for sale of the property. The learned judge found that none of the co-sharers liked that others should buy the property at a valuation under the provisions of Section 3 of the Partition Act. He observed that before the passing of the Partition Act the Court had no alternative but to make a decree for partition and the facts of the case were such that he could not assume jurisdiction under the Act and was relegated to the position which prevailed before the passing of the Act. Referring to the judgment in L. Ram Prasad Vs. Mt. Mukandi and Another, and Mohit Krishna Kundu Vs. Pranab Chandra Ghose and Others, , the learned Judge said (p. 149):

having regard to the authorities cited I hold I have jurisdiction in the circumstances of this case, apart from and independently of the provisions of the Partition Act to order a sale of the property between the parties and to direct that the property should be given to that party who offers the highest price above valuation made by the Court.

I have already tried to show that the basis of the decision in Debendra v. Hari Das Supra was not justified by the authorities. In L. Ram Prasad Vs. Mt. Mukandi and Another, the facts were as follows: The Plaintiff, a transferee of a two-thirds share in a house sued the Defendants for partition. It was the common case of the parties that the house was small and incapable of partition by metes and bounds. The learned Judges of the Allahabad High Court on an examination of the facts held that the provisions of the Partition Act did not apply but nevertheless they remanded the case to the Court of first instance in order that the Court may hold a sale of the property among the co-sharers and the property be given to that party who offered to pay the highest price above the valuation made by the Court. No authority was cited in this judgment. Evidently the Court proceeded on the basis that it was a reasonable thing to do on the facts of the case.

In Mohit Krishna Kundu Vs. Pranab Chandra Ghose and Others, , the facts were as follows : The Plaintiff sued for partition of a tank and some lakheraj land; The contest was only with regard to the tank. A two annas share in the tank was held by the Defendant No. 1 and the remaining 14 annas by the proforma Defendant No. 7. The Plaintiff had obtained a permanent lease from the Defendant No. 7 and was building a house on the bank of the tank. In the plaint an alternative prayer was made that if the division of the property could not conveniently be made a direction might be given to the commissioner to compensate the party who might get less than what was due to his share. The Defendant prayed that he should be allowed to purchase the share of the Plaintiff in the tank. At the hearing of the suit the Plaintiff made a similar offer. The learned Judges went into the question as to whether the provisions of the Partition Act were applicable. It was held that there was no request by the co-sharers interested to the extent of one moiety or upwards for sale of the property and the Defendant No. 1 was not entitled to ask that the property be sold to him. Curiously enough the learned Judges went on to examine the position conceding that the Partition Act

Page No. 676 missing bounds an allotment of it could be directed to one or other of the parties with payment of compensation to the other or others. He did not feel disposed to express any final opinion as to whether the Court had power to direct a sale of the property in such a case but was of the views that the word ''sale'' in this connotation really meant allotment of a property to one of the parties and that the procedure'' of sale was only to ensure the payment of highest compensation to those to whom the property could not be allotted. With all respect I cannot find any equity in such a procedure. If apart from the provision of the Partition Act the Court has no authority to direct a sale of the property I see no reason why bidding by auction should-be resorted to and the property be given to the highest bidder whether the auction be open only to the co-sharers or to them along with outsiders. In my view, the direction that the property should be allotted to the person in occupation and payment by him of compensation on the basis of the valuation arrived at by the commissioner of partition has good sense and equity behind it. If the property is small and cannot be partitioned the co-sharers who are not in occupation cannot suffer any prejudice if they are given the value of their shares. Putting the property to auction and allotting it to the highest bidder would only mean favouring the rich co-sharer at the expense of a less fortunate person. It is well-known that at the present time it is difficult for any person with limited means to purchase a property for his shelter and if the person in occupation is made to give up possession the compensation awarded to him even if it be in excess of the valuation fixed by the commissioner of partition will hardly compensate him for the prejudice caused to him by the loss of shelter.

On the facts of this case Sections 2 and 3 of the Partition Act can have no application. Section 2 only enables the Court to direct a sale of the property and a distribution of the proceeds when it finds that by reason of the nature of the property or of the number of the shareholders or any other special circumstance a division of the property cannot reasonably or conveniently be made and a sale of the property and distribution of the proceeds would be more beneficial for all the shareholders. Even then the Court can only exercise this power if a request for sale is made by shareholders interested individually or collectively in one moiety or upwards. Section 3 can have no application unless a request envisaged by Section 2 of the Act is made. It is only when such a request is made and any other shareholder applies for leave to buy at a valuation the share or shares of the party or parties asking for the sale that the Court can order the valuation of such share or shares and direct the sale, thereof to such shareholder at the price so ascertained. Sections 2 and 3 of the Act, therefore, give the Court only a very limited right of sale and unless the conditions prescribed by the sections are fulfilled the Court cannot exercise power under the Act. I respectfully agree with the dictum of G.N. Das, J. in Nitya Gopal Samanta v. Pran Krishna Dau Supra that if the Court had inherent right to order a sale there was hardly any necessity for enacting Sections 2 and 3 of the Partition Act.

A review of the authorities, therefore, leads me to the following conclusions:

(1) If the property is small and by reason of a large number of shareholders or due to any other circumstances it cannot conveniently be partitioned by metes and bounds the Court cannot order a sale of the property apart from the provisions of the Partition Act.

(2) Even in such a case the Court may allot the property in its entirety to the person in occupation with a direction that he should pay compensation to the other on the basis of the valuation to be made by the Court or under the Court''s direction.

(3) Such valuation cannot be arrived at by putting the property upto auction among the co-sharers.

The decree in this case shows that all the parties had agreed that the property should be sold by public auction. The request for sale was, therefore, made jointly by everybody. Consequently there is no room for application of Section 3 of the Partition Act. The Court, therefore, cannot help the Appellants by directing that the property should be allotted to them at their offer to pay Rs. 20,000 to the Plaintiffs for the five-eighths share held by them. This would mean that the value of the property was about Rs. 38,000 i.e. nearly twice the valuation arrived at by the commissioner of partition. It is unfortunate that the Plaintiffs would not let the mother and their brother have the property even at this excessive valuation.

In the result, the appeal must be dismissed but in the peculiar circumstances of this case we make no order as to costs. Certified for two counsel.

The interim stay order is vacated. The time for the commissioner of partition to complete the sale and file his report is extended till August 30, 1966.

Masud, J.

I agree.