Madras High Court
K.Balasubramanian vs Angayarkanni ... 1St on 25 January, 2023
S.A.(MD) No.465 of 2005
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 25.01.2023
CORAM
THE HONOURABLE MR. JUSTICE S.SOUNTHAR
S.A.(MD) No.465 of 2005
1.K.Balasubramanian
2.Thamizharasi
3.Vanathi ... Appellants/Respondents 1 to 3/
Respondents 1 to 3
Vs
1.Angayarkanni ... 1st Respondent/Appellant/
Petitioner – Plaintiff
2.Velusamy
3.K.Palanisamy
4.Murugesan ... Respondents 2 to 4/
Respondents 4 to 6/Respondents
Prayer:- Appeal filed under Section 100 of Civil Procedure Code to set aside
the judgment and decree dated 11.03.2005 made in A.S.No.64 of 2003 on
the file of the District Court, Karur reversing the decree and order dated
28.02.2002 made in I.A.No.63 of 2000 in O.S.No.232 of 1991 on the file of
the Sub Court, Karur.
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For Appellants : Mrs.N.Krishnaveni
Senior Counsel
assisted by Mr.T.R.Rajaraman
For R1 : Mr.P.Paranthaman
RR2 to 4 : Dispensed with
JUDGMENT
1.1. Defendants 1 to 3 in the suit are the appellants. The 1st
respondent herein filed a suit in O.S.No.232 of 1991 on the file of the Sub
Court, Karur seeking partition of her half share. The said suit was decreed
in favour of the 1st respondent passing a preliminary decree for half share.
The appellants herein filed an appeal before the District Court,
Trichirappalli challenging the preliminary decree in A.S.No.276 of 1997 and
the same was dismissed. Therefore, final decree petition was filed by the 1st
respondent in I.A.No.63 of 2000 for allotment of her half share. The trial
Court passed an order for division of the house in the suit property by
allotting first floor portion to the 1st respondent and the ground floor portion
to the appellants. As far as the two shops lying on the southern corner of the
suit property are concerned, the shop on the southern side was allotted to the
1st respondent and the another shop lying on the immediate north was
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S.A.(MD) No.465 of 2005
allotted to the share of the appellants. The bathroom and rest room facilities
available in the ground floor were allotted to the appellants. The other
vacant area surrounding the building and compound wall were allotted for
the common enjoyment of both the parties.
1.2. Aggrieved by the said final decree, the 1st respondent filed an
appeal in A.S.No.64 of 2003 on the file of the District Court, Karur. The
final decree was challenged by the 1st respondent mainly on the ground that
the Commissioner had filed a report stating that the property was indivisible
and hence, the trial Court ought not to have passed a final decree dividing
the property as stated above. The said appeal was allowed and the learned
District Judge, passed an order of remand with a direction to the trial Court
to divide the property by casting lots, if parties were not agreeable to
proceed under Section 4 of the Partition Act. The said order of remand was
challenged by the appellants before this Court in C.M.A.No.1 of 2004. This
Court, after setting aside the order of remand passed by the District Court,
directed the learned District Judge to effect division by taking into
consideration the convenience of the parties and if necessary, by casting lots
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and if either of the party was not amenable due to the alleged
inconvenience, the property can be sold only among the parties, who is
willing to pay the higher value. Thereafter, the matter was taken up for
consideration by the learned District Judge afresh. The appellants herein
filed a memo expressing readiness to go for lot and the 1st respondent filed a
memo expressing her unwillingness to go for lot. Since there was no
consensus among the parties with regard to the division by lots, the first
appellate Court decided to go for auction and the 1st respondent being the
only person who offered to purchase the suit property for a value of
Rs.14,01,000/-, passed final decree allotting the entire property to the
1st respondent.
1.3. The learned District Judge passed a final decree allotting the
entire property to the 1st respondent and also observed that the appellants
can withdraw half of the value of the property as per the auction sale price
viz., Rs.7,00,500/-, which was already deposited by the 1st respondent.
Aggrieved by the said final decree, the appellants have come up with this
second appeal.
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2. The second appeal was admitted by this Court by formulating the
following substantial question of law:
“When the property is capable of division, is the
lower Appellate Court correct in ordering sale of the
property in auction?”
3.1. The learned Senior Counsel appearing for the appellants
elaborated the questions of law formulated at the time of admission by
submitting that the procedure adopted by the learned District Judge was not
in consonance with the directions issued by this Court in C.M.A.No.1 of
2004. The learned Senior Counsel, by taking this Court to the judgment
passed by the Division Bench of this Court in C.M.A.No.1 of 2004,
submitted that the learned District Judge ought to have seen that the
property is divisible and as per the directions issued in the judgment of this
Court, the learned District Judge ought to have endeavoured to divide the
property and go for allotment of shares by draw of lot.
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3.2. The learned Senior Counsel further submitted that the learned
District Judge while going for the next option suggested by the Division
Bench erred in fixing the sale price at Rs.14,01,000/- and the fixation of sale
price at Rs.14,01,000/- by the learned District Judge was without any basis.
Therefore, the final decree passed by the trial Court, based on erroneous
approach which was not in tune with the directions given by this Court in
C.M.A.No.1 of 2004, is liable to be set aside.
4.1. The learned counsel appearing for the 1st respondent submitted
that the Division Bench of this Court in C.M.A.No.1 of 2004 only directed
the first appellate Court to go for allotment of shares by lot, in case both the
parties agreed for that auction. In the case on hand, admittedly, the 1st
respondent filed a memo expressing her unwillingness to go for allotment of
shares by draw of lot. In these circumstances, as per the directions given by
this Court in C.M.A.No.1 of 2004, the learned District Judge decided to go
for the second option suggested by this Court viz., sale of property by
auction among the parties to the litigation. In the case on hand, the 1st
respondent offered a sale price of Rs.14,01,000/-. The appellants did not
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offer to purchase the suit property. In these circumstances, the learned
District Judge rightly confirmed the auction sale for the higher price of
Rs.14,01,000/- offered by the 1st respondent and passed final decree
allotting the entire property to the 1st respondent.
4.2. As far as the contention raised by the learned Senior Counsel that
there was no basis for fixing the base price of Rs.14,01,000/- is concerned,
the learned counsel for the 1st respondent submitted that when the base price
was fixed at Rs.14,01,000/- by the Court below while going for auction, the
appellants did not raise any objection regarding the value fixed and it is too
late for them to raise the question of valuation before the second appellate
Court. The learned counsel also had drawn the attention of this Court to the
revision in C.R.P.(PD)No.141 of 2005 filed by the appellants questioning
the non-disposal of the memo filed by them expressing their desire to
partition the suit property by lot. The learned counsel submitted that the
said revision was dismissed by this Court by observing that the procedure
adopted for sale by the learned Judge was in consonance with the judgment
of the Division Bench and the same could not be faulted. Therefore, it is the
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submission of the learned counsel for the 1st respondent that when this Court
in its order passed in C.R.P.(PD)No.141 of 2005 found that the procedure
adopted by the learned District Judge in conducting auction for sale of the
property was correct and in consonance with the earlier order passed by the
Division Bench, the second appeal filed by the appellants does not involve
any merit and liable to be dismissed.
5. Heard the arguments of the learned Senior Counsel for the
appellants and the learned counsel for the 1st respondent. Perused the typed
set of papers and the other relevant records.
6. The main contention raised by the learned Senior Counsel is that
the learned District Judge did not follow the directions issued by this Court
in C.M.A.No.1 of 2004 while exploring the last option of auction sale. It
would be appropriate to refer to the relevant portion of the judgment passed
by the Division Bench of this Court in C.M.A.No.1 of 2004 which reads as
follows:
“7. At this juncture, a perusal of the order of the first
appellate Court making a remand would clearly reveal that
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the first appellate Court has directed again the lower court to
value the property and divide the same between the parties by
casting lots, to which course, now the appellants are ready.
It is pertinent to point out that the respondents are not ready
for taking the property by way of casting lots, but would add
that it would cause inconvenience for the respondents to
occupy, but the property should be sold and the sale proceeds
have got to be divided according to the convenience of the
parties. Under the stated circumstances, this Court is of the
opinion that the order of remand made by the learned District
Judge has got to be set aside with a direction to effect
division by taking into consideration the convenience of the
parties and if necessary, by casting lots and if either of the
party is not amenable due to the alleged inconvenience, the
property can be sold only among the party, who is willing to
pay the higher value. It is further directed that if the property
has got to be sold, the same can be done by the learned
District Judge himself only among the parties. Either of the
party, who is successful in the said sale, has to be directed to
pay half of the sale price to the other party. With the above
observations, the learned District Judge is directed to take up
the matter and decide the same within a period of two months
herefrom. The parties are directed to appear before the
District Judge on 7.1.2005. This appeal is allowed. No
costs. Consequently, connected CMP is closed.”
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7. A close reading of the directions issued by this Court would make it
clear that firstly the Court below has to explore the possibility of dividing
the property and allotting the shares to the parties by lots. If either of the
party is not amenable to the said course, then the property shall be sold in
auction sale only among the parties to the litigation, who is willing to
purchase the property for higher value.
8. In pursuance to the directions issued by this Court, both the parties
appeared before the Court and the appellants filed a memo expressing desire
to go for lot for allotment of shares. The 1st respondent filed a memo
expressing her unwillingness to go for lot for allotment of shares.
Therefore, there was no consensus among the parties regarding division of
property and allotment of shares by lot. Therefore, there was no possibility
for the learned District Judge to explore the first option suggested by the
Division Bench. Therefore, the learned District Judge appeared to have
gone for the second option of sale by auction and allotment of entire
property to the successive bidder and payment of half of the sale price to the
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other party. When the learned District Judge decided to go for the second
option, the appellants aggrieved by the same, moved this Court in
C.R.P.(PD)No.141 of 2005. The said revision was filed questioning the
non-disposal of the memo filed by the appellants in USSR No.655 of 2005
dated 19.01.2005 expressing their desire to go for partition of the property
by lots. This Court, after considering the earlier order passed by the
Division Bench, came to the conclusion that when the first option suggested
by the Division Bench is not explorable due to divergence of opinion by the
parties, there was nothing wrong in going for the second option of auction
sale. Ultimately, the revision filed by the appellants was dismissed by this
Court. This Court while dismissing the revision filed by the appellants
observed as follows:
“3. The decree of partition became final in view of
the judgment in C.M.A.1 of 2004 on the file of this Court
dated 20.12.2004. In paragraph 7 of the said judgment, the
Division bench has observed that the property is divisible
and in the event of both the petitioners and the respondents
agreed for division of the property by casting lots, it can be
partitioned by way of lots. The Division Bench has further
directed that in the event of either of the party is not willing
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to take respective shares due to inconvenience, the property
can be sold only among the parties who are willing to pay a
higher value. When the property is sought to be divided on
the basis of the judgment of the Division Bench, though the
petitioners have filed a memo expressing their desire to
divide the property by way of lot, the respondents have also
filed a memo expressing their unwillingness for the same.
4. In view of the above stand of the parties, the court
below should resort the second direction given by the
Division Bench namely, the sale of the property among the
parties and it should be in favour of the party who is willing
to pay the higher value. There is no dispute that in so far as
the above direction of the Division Bench is concerned as
there was no agreement between the petitioners and the
respondents for division of the property by way of lot, the
learned judge has rightly brought the property for sale and
that too only among the petitioners and the respondents.
5. It is now submitted that the respondents are the
higher offerers and the said offer has been accepted. The
procedure adopted for sale by the learned Judge is
inconsonance with the order of the Division bench and the
same cannot be faulted.
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6. In view of the same, the question for consideration
of memo filed by the petitioners expressing their desire to go
for lot does not survive. With the above observation, the
Civil Revision Petition is disposed of. No cost.
Consequently, the connected C.M.P.Nos.1315 and 1990 of
2005 are also closed.”
9. Therefore, the procedure adopted by the first appellate Court in
going for second option of auction sale was already impugned by the
appellants in the earlier revision filed by them and their contention was
negatived by this Court. While that being the position, it is not open to the
appellants to say that the first appellate Court erred in not exploring the
possibility of dividing the property by lots when the 1st respondent
expressed her unwillingness for division of the properties by lots. The
Court below had no other option except to go for the second option
suggested by the Division Bench viz., sale of property by auction. In these
circumstances, I do not find any reason to interfere with the decision of the
first appellate Court to go for auction sale.
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10. As far as the contention raised by the learned Senior Counsel that
the base price of Rs.14,01,000/- fixed by the first appellate Court while
going for auction was without any basis is concerned, the said point was not
at all raised by the appellants in the memorandum of grounds of second
appeal. Only when the matter was taken up for argument, a memo dated
06.01.2023 was filed by the learned counsel for the appellants raising the
said point. It is pertinent to note that when upset price was fixed by the
Court below at Rs.14,01,000/- while going for auction, the appellants who
were present before the Court did not make any objection. In fact, the
appellants aggrieved by the decision of the first appellate Court in going for
auction of the property filed a revision before this Court in C.R.P.(PD)No.
141 of 2005. Even in the said revision, the appellants did not raise the
correctness or otherwise of the upset price fixed by the Court below. When
the upset price was fixed by the Court below, the appellant did not make any
objection with regard to the valuation before the Court below. Even in the
revision filed before this Court in C.R.P.(PD) No.141 of 2005, the
appellants did not complain about the valuation and the upset price fixed by
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the Court while going for auction. Further, at the time of auction, the 1st
respondent alone offered the sale price of Rs.14,01,000/-. The appellants
failed to make any offer. The appellants at least could have raised an
objection with regard to the valuation and sale price before the Court below.
Having failed to raise the question of valuation and fixation of upset price
before the Court below and also in the revision filed before this Court, it is
not open to the appellants to raise these issues belatedly in second appellate
state that too at the time of arguments.
11. In view of the discussions made above, the substantial question of
law framed at the time of admission is answered against the appellants and
the second appeal is dismissed.
12. In fine,
(i) the Second Appeal is dismissed by confirming the judgment and
decree dated 11.03.2005 made in A.S.No.64 of 2003 on the file of the
District Court, Karur;
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(ii) it is made clear that the appellants are entitled to withdraw half of
the sale price said to have been deposited by the 1st respondent before the
Court below with accrued interest, if any; and
(iii) in the facts and circumstances of the case, there will be no order
as to costs.
25.01.2023
NCC : Yes/No
Index:Yes/No
Internet:Yes
abr
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S.A.(MD) No.465 of 2005
To
1.The District Judge,
Karur.
2.The Sub Judge,
Karur.
3.The Section Officer, VR Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD) No.465 of 2005
S.SOUNTHAR, J.
abr
S.A.(MD) No.465 of 2005
25.01.2023
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