Chapter 9

Powers of Court

Power to sell property

It has long been recognised that the court has no inherent powers to sell the joint property. This very often resulted in practical problems. The legislature appreciated this situation in the following statement:

'It is proposed in the present Bill to supply this defect in the law by giving the Court, under proper safeguards, a discretionary authority to direct a sale where a partition cannot reasonably be made and a sale would, in the opinion of the Court, be more beneficial for the parties. But, having regard to the strong attachment of the people in this country to their landed possession, it is proposed to make the consent of parties interested at least to the extent of a moiety in the property a condition precedent to the exercise by the Court of this new power. In order at the same time prevent any oppressive exercise of this privilege it is proposed to give such of the shareholders as do not desire a sale the right to buy the others out at a valuation to be determined by the Court. The power, moreover, which it is proposed to give to the Court will be discretionary one to be exercised on a consideration of all the circumstances of the case. It should be added that, where the Court is obliged to direct a sale, a right of pre-emption is given by the Bill to the parties similar to that conferred on shareholders by section 310 Civil Procedure Code………… It is proposed in the present Bill to supply this defect in the law by giving the Court, under proper safeguards, a discretionary authority to direct a sale where a partition cannot reasonably be made and a sale would, in the opinion of the Court, be more beneficial for the parties. But, having regard to the strong attachment of the people in this country to their landed possession, it is proposed to make the consent of parties interested at least to the extent of a moiety in the property a condition precedent to the exercise by the Court of this new power. In order at the same time prevent any oppressive exercise of this privilege it is proposed to give such of the shareholders as do not desire a sale the right to buy the others out at a valuation to be determined by the Court. The power, moreover, which it is proposed to give to the Court will be discretionary one to be exercised on a consideration of all the circumstances of the case. It should be added that, where the Court is obliged to direct a sale, a right of pre-emption is given by the Bill to the parties similar to that conferred on shareholders by section 310 Civil Procedure Code.621

With the above background the legislature enacted the following provisions of the Partition Act, 1893. Section 2 of the Act empowers the court to sell the property. This section reads as under:

'2. Power to Court to order sale instead of division in partition suits.— Whenever in any suit for partition in which, if instituted prior to the commencement of this Act, a decree for partition might have been made, it appears to the Court that by reason of the nature of the property to which the suit relates, or of the number of the shareholders therein or of any other special circumstances, a division of the property cannot reasonably or conveniently be made, and that a sale of the property and distribution of the proceeds would be more beneficial for all the shareholders, the Court may, if it thinks fit, on the request of any such shareholders interested individually or collectively to the extent of one moiety or upwards direct a sale of the property and a distribution of the proceeds.'

But it has to comply with the following procedure which relates to buying and selling of share in property:

3. Procedure when sharer undertakes to buy.— (1) If, in any case in which the Court is requested under the last foregoing section to direct a sale, any other shareholder applies for leave to buy at a valuation the share or shares of the party of parties asking for a sale, the Court shall order a valuation of the share of shares in such manner as it may think fit and offer to sell the name to such shareholder at the price so ascertained, and may give all necessary and proper directions in that behalf.

(2) If two or more shareholders severally apply for leave to buy as provided in sub-section (1), the Court shall order a sale of the share or shares to the shareholder who offers to pay the highest price above the valuation made by the Court.

(3) If no such shareholder is willing to buy such share or shares at the price so ascertained, the applicant or applicants shall be liable to pay all costs of or incident to the application or applications.

A person who is not a member of a joint family may happen to purchase undivided share of a coparcener. Such transferee though has a right to file suit. But after the enactment of Partition Act, 1893 court can compel him to sell the share to any willing member of the family. This section reads as under:

'4. Partition suit by transferee of share in dwelling-house.— (1) Where a share of a dwelling-house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition, the Court shall, if any member of the family being a shareholder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder, and may give all necessary and proper directions in that behalf.

(2) If in any case described in sub-section (1) two or more members of the family being such shareholders severally undertake to buy such share, the Court shall follow the procedure prescribed by sub-section (2) of the last foregoing section.'

In order to attract the provision of Section 4 of the Partition Act, four conditions should be satisfied, namely

(i) the house should be owned by an undivided family;

(ii) the share of a co-sharer therein should have been transferred to a person who is stranger to the family;

(iii) the transferee should have sued for partition; and

(iv) a member of family being share-holder claims and undertakes to buy the share of the stranger transferee.

The question of applying Section 4 of the Partition Act cannot arise at all when no suit for partition has been filed. Of course, it is true that the relief under Section 4 of the Partition Act can be granted even where the suit for partition is brought by co-sharer himself and not by the stranger-transferee. But in this case, such a prayer was advanced by the counsel for the appellant for the first time at the second appellate stage in a suit by a reversioner for title possession, it was held to be misconceived.622

Powers qua person under disability

Disability has been defined as 'the inability to perform some function; and objectively measurable condition of impairment, physical or mental.623 It is also an 'incapacity in the eyes of the law624 .— Also termed incapacity.625

Physical disability is an incapacity caused by a physical defect or infirmity, or bodily imperfection or mental weakness.626 However the court is more concerned with civil disability which is a condition of a person who has had a legal right of privilege revoked or an It is also an incapacity in the eyes of the law. Like a minor or a person of unsound mind.

Where a member of the joint family had no congenial disqualification and had acquired by birth an interest in the joint property later supervening disqualification while,. It might debar him from claiming a partition, but it would not prevent him from acquiring the property by survivorship when none of the disqualifications enumerated in the Hindu Inheritance (Removal of Disabilities) Act, 1928, which excludes an heir from inheritance has been pleaded or proved.627

Section 5 of the Partition Act, 1893 also strengthens the hands of the Court in this regard. But it also casts a duty upon the court to watch the interest of the person under disability. This section 5 reads as under:

'5. Representation of parties under disability.— In any suit for partition a request for sale may be made or an undertaking, or application for leave, to buy may to given or made on behalf of any party under disability by any person authorised to act on behalf of such party in such suit, but the Court shall not be bound to comply with any such request, undertaking or application unless it is of opinion that the sale or purchase will be for the benefit of the party under such disability.'

Preliminary decree

The partition suit must be deemed to be pending till a final decree is actually passed and that any number of preliminary decrees can be passed therein.628

Though the final decree is only by way of working out in detail the principles laid down in the preliminary decree, the proceedings which take place between the two decrees are in the nature of continuation of the suit for the purpose of carrying out the directions contained in the preliminary decree. Therefore a preliminary decree can be modified by court.629

A preliminary decree passed, whether it is in a mortgage suit or a partition suit, is not a tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive. No doubt, in suits which contemplate the making of two decrees a preliminary decree and a final decree — the decree which would be executable would be the final decree. But the finality of a decree or a decision does not necessarily depend upon its being executable. The legislature in its wisdom has thought that suits of certain types should be decided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made the decision of the court arrived at the earlier stage also has a finality attached to it. It would be relevant to refer to Section 97 of the Code of Civil Procedure which provides that where a party aggrieved by a preliminary decree does not appeal from it, he is precluded from disputing its correctness in any appeal which may be preferred from the final decree. This provision thus clearly indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the Court passing that decree.630

In a suit for partition where the preliminary decree itself has not been passed, the position is that though the next friend, in filing the suit for partition, has made an unequivocal declaration on behalf of the minor to separate, that declaration would not become an effective declaration because the law says that such a declaration is subject to approval by the Court. Till a preliminary decree is passed, the stage of the Court approving or disapproving the declaration made by the next friend of the minor would not arise. In such a case, when the minor on attaining majority, abandons the suit, the position would be similar to a case where the Court holds that it is not in the interests of the minor to separate and refuse to grant a preliminary decree.631

Second partition decree

There is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented. We have already said that it is not disputed that in partition suits the Court can do so even after the preliminary decree is passed. It would in our opinion be convenient to the Court and advantageous to the parties, specially in partition suits, to have disputed rights finally settled and specification of shares in the preliminary decree varied before a final decree is prepared. If this is done, there is a clear determination of the rights of the parties to the suit on the question in dispute and we see no difficulty in holding that in such cases there is a decree deciding these disputed rights; if so there is no reason why a second preliminary decree correcting the shares in a partition suit cannot be passed by the Court. So far therefore as partition suits are concerned, we have no doubt if an event transpires after the preliminary decree which necessitates a change in shares, the Court can and should do so; and if there is a dispute in that behalf, the order of the Court deciding that dispute and making variation in shares specified in the preliminary decree already passed is a decree in itself which would be liable to appeal……… There is no prohibition in the Code of Civil Procedure against passing a second preliminary decree in such circumstances and there is no reason why the court should rule out a second preliminary decree in such circumstances only on the ground that the Code of Civil Procedure does not contemplate such a possibility. In any case if two views are possible— and obviously this is so because the High Courts have differed on the question— but the Supreme Court preferred the view taken by the High Courts which hold that a second preliminary decree can be passed, particularly in partition suits where parties have dies after the preliminary decree and shares specified in the preliminary decree have to be adjusted.632

Final decree

The final decree proceeding is a stage in continuation of the suit for partition. The partition suit should be deemed to be pending until a final decree is passed. The preliminary decree declares and determines the shares of parties, but all other equities which requires determination and adjustment amongst them are to be decided in the final decree proceeding with the objective of not driving the parties to institute separate suits. Events which have happened subsequent to the passing of the preliminary decree can also be taken into consideration and decided at the stage of the final decree proceeding. If rights of parties are decided during the final decree proceedings, such decision will amount to another preliminary decree in the suit for partition. Thus, all disputes of the parties are intended to be settled once for all in the final decree proceeding, so that the parties thereto shall not again approach the court by instituting fresh suits in respect of the subject matter of partition.633

A suit cannot be deemed to have been finally disposed of on passing of such a decree except in cases where the prayer in the suit was merely for a declaration of the extent of the share to which the plaintiff is entitled to in the suit properties. Where the suit is for recovery of the specific portion of the properties falling to the share of the plaintiff, the suit can be deemed to the have been finally disposed of only on such a specific plot being allotted to the plaintiff after a division of the properties by metes and bounds. All the proceedings leading to the allotment of specific plots towards the shares of the respective parties are only proceedings in the suit. Partition of the properties by metes and bounds for the purpose of making final allotments towards the shares of the respective parties may be got done through the revenue authorities or through Commissioners authorised by the Court in that behalf. But the proposals made by them are only tentative and are subject to scrutiny and final approval by the Court.634

Subsequent events

In a partition suit, even after the preliminary decree, if on the basis of subsequent events, there are changes in the situation including changes in the grouping of shares amongst the parties or acquisition of shares of other co-sharers by some of the co-sharers for which the decree for partition can be suitably moulded, the Court can and should do so and in such circumstances the variation of the preliminary decree can always be made. There is nothing in the Civil P.C. which prohibits passing of more than one preliminary decree if in the facts and circumstances of a case and in consideration of equity and justice, such variation of the preliminary decree is warranted.635

After the passing of the preliminary decree in a partition suit before passing of the final decree if there has been either enlargement or diminution of the shares or rights of the parties have been changed by reason of the rights that have been conferred by the statute or rights of the parties by a second or by subsequent purchase or by assignments of interest by whatever cause, the Court, before passing its final decree, has to consider and decide the matter and grant a final decree in accordance with such subsequent devolutions to avoid multiplicity of suits and give complete and appropriate relief to all the parties. The mere fact that those parties have been added subsequent to the preliminary decree and their interest has been found to be affected and they were added as necessary parties, it does not mean that the Court has no right to consider their claims.636

Sale of property

Section 7 of Partition Act, 1893 provides the procedure for sale of property in a case involving partition of property. This section reads as under:

7. Procedure to be followed in case of sales.— Save as hereinbefore provided, when any property is directed to be sold under this Act, the following procedure shall, as far as practicable, be adopted, namely:—

(a) if the property be sold under a decree or order of the High Court of Calcutta, Madras or Bombay in the exercise of its original jurisdiction 637 [ * * *] the procedure of such Court in its original civil jurisdiction for the sale of property by the Registrar;

(b) if the property be sold under a decree or order of any other Court, such procedure as the High Court may from time to time by rules prescribe in this behalf, and until such rules are made, the procedure prescribed in the Code of Civil Procedure in respect of sales in execution of decrees.

The relevant provisions of the Civil Procedure Code, 1908 being reproduced in the appendix.

The partition Act has a clear implication about the non-existence of inherent powers in the Court to direct a sale in lieu of partition in cases not covered by the Partition Act. Nor do the provisions of Section 396, Civil P.C. 1882 or the provisions contained in Order 26, assist the respondents, Section 396 Code of 1882 rather supports the position that under the then state of the law the Court had only power to partition and not to direct a sale. The provisions of Order 26, Civil P.C. merely lay down the mode in which the Commissioner will do his duty in making allotments. Nor can any inference be drawn from the general words of Order 20, Rule 18, which empowers the Court while passing a preliminary decree for partition to give further directions. Such directions mean directions which relate to the working out of the preliminary decree for partition and cannot be invoked as conferring on the Court a substantive power of sale apart from partition.638

When two brothers were having equal shares in the immovable property but the property was incapable of being divided into two equal halves, it was ordered that the property be put to sale so that maximum amount could be realised which will be in the interest of both the brothers as they would be the recipients of one-half share each of such receipts.639

Where joint family property is sold in execution of decree, the persons who were not born on the date of sale are also entitled to challenge it.640

Valuation of property

When the decree (in a suit for partition of property) relates to any other immovable property or to movable property (property other than one assessed to the payment of the revenue to the Government) the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the parties in the property and giving further directions as may be required. It would, therefore, be clear that there are different stages of decree/decrees in a partition suit. Obviously there might be a preliminary decree or even more than one preliminary decree, which would determine the shares of the parties, but which would not divide the properties deliverable to the co-sharers. Another stage is one that of passing final decree after inquiry is held as per the direction contained in the preliminary decree. The shares of the parties are determined first at the stage of the preliminary decree. Actual partition is effected as per the final decree. Bearing in mind such a nature of the provision contained in Order 20, Rule 18 quoted hereinabove, it would be premature to decide in the preliminary decree whether property in defendant's possession is available for or capable of partition or not and such a question has necessarily to be left to be decided at the inquiry subsequent to the preliminary decree. It is only when it is found that the property is either not available for partition or the property is not partible the determination of value thereof is required to be made. It is, therefore, clear that such a value cannot be as on the date of the suit. It has necessarily to be as on the date of the final decree.641

The wording of Section 4 of Partition Act, 1893 also give some guidance on this point. Section 4 contemplates a valuation to be fixed when the transferee files a suit for partition, and the Court has been given the discretion to make valuation of the share in such manner as it think fit. In my opinion, in the absence of any decision to the contrary, the plain meaning of Section 4 refers to the market value as ruling on the date of the suit and not on the of sale. With a view to do justice to the parties, the valuation has to be so made so as to be fair both to the stranger-purchaser as also to the co-share of the erstwhile undivided joint family. The sale by the stranger to the co-sharer being in the nature of a forced sale, the valuation has to be fixed with great care and caution so as not to cause nay hardship to the parties.642

If consideration paid by the stranger would have been the valuation to be paid by the shareholder allowed to repurchase, language of Section 4(1) of the Act would have clearly expressed the same. There would have been no scope for the Court to make valuation. This provision was not made with the intention to impose penalty on the stranger purchaser. Equally it was not intended that stranger purchaser would make a profit out of the transaction. Therefore, Court is to make the valuation of the share on the date when the shareholder offered to purchaser the land as in case of any contract for sale of land guidelines for determination of market value under Section 23(1) of the Land Acquisition Act, 1894 should be adopted by the Court taking into account those matters which are excluded from consideration under Section 24 of that Act which, though are relevant materials, were specifically excluded for the purpose of that Act. However, circumstances which led to the litigation and conduct of parties would be relevant for the purpose of determination of valuation which would normally be the market value of the land on the date of expression of willingness of the purchaser. Principle would be what bona fide purchaser would be willing to pay on the date he expressed willingness to purchaser would be the market value.643

Mesne profit

In the absence of fraud or other improper conduct, a karta is not liable to account for the existing state of property. In a suit for partition, the court may however inquire into the fact as to which property consisted of the joint family property, on the date of partition.644