Madras High Court
Mr.Kareem Ahamed vs Nazneen Begum on 13 August, 2024
Author: S.S.Sundar
Bench: S.S.Sundar
O.S.A.No.39 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.08.2024
CORAM :
THE HON'BLE MR.JUSTICE S.S.SUNDAR
AND
THE HON'BLE MR.JUSTICE K.RAJASEKAR
O.S.A.No.39 of 2024
1. Mr.Kareem Ahamed
S/o Late D.K.Hussain
2. Mr.Shukoor Ahamed
S/o Late D.K.Hussain
3. Mr.Abdul Jabbar
S/o H.Kareem Ahamed
4. Mr.Mohammed Kassim
S/o Shukoor Ahamed .. Appellants
v.
1. Nazneen Begum
W/o Late Shameem Ahamed
2. Shabbir Ahamed
S/o Late Shameem Ahamed
3. Mohammed Ghouse Basha
S/o Late Shameem Ahamed
4. Mrs.Mumtaz Begum
D/o Late Shameem Ahamed
W/o Abdul Gaffar
5. Ruksana
D/o Late Shameem Ahamed
W/o Mohamed Munavar
____________
Page 1 of 10
https://www.mhc.tn.gov.in/judis
O.S.A.No.39 of 2024
6. LIC Housing Finance Limited
rep.by its Area Manager
Having Office at Harrington Chambers
Block C.No.30/1A, Abdul Razack 1st Street
Saidapet, Chennai 600 015 .. Respondents
Memorandum of Grounds of Original Side Appeal under Order
XXXVI, Rule 1 of the Original Side Rules read with Clause 15 of the Letters
Patent, against the order dated 27.02.2024 passed by the learned single
Judge in Application No.2773 of 2020 in C.S.No.531 of 2018.
For Appellants :: Mr.M.Aravind Subramanian
Senior Counsel for
M/s M.Bharathy Meena
For Respondents :: Mr.M.Radhakrishnan for R1 to R5
Mr.K.Ramesh for R6
JUDGMENT
(Judgment of the Court was made by S.S.SUNDAR,J.)
This original side appeal is directed against the order of the learned
single Judge dated 27.02.2024 in Application No.2773 of 2020 in
C.S.No.531 of 2018.
2. The appellants are the defendants 1 to 4 in the suit in C.S.No.531
of 2018, which was filed by the respondents 1 to 5/plaintiffs for partition
____________
https://www.mhc.tn.gov.in/judis
and consequential reliefs. The suit properties consist of three items – A, B &
C of schedule. A preliminary decree dated 21.11.2019 was passed in
C.S.No.531 of 2018 on the file of this Court. Thereafter, the plaintiffs filed
Application No.2773 of 2020 to pass a final decree in terms of the
preliminary decree dated 21.11.2019 and Application No.2774 of 2020 to
appoint an Advocate Commissioner to divide the suit property by metes and
bounds and handover possession of 1/3rd share to the plaintiffs and 1/3rd
share to each of defendants 1 & 2 in 'A' 'B' and 'C' schedule properties. 'A'
schedule property is a commercial property. 'B' & 'C' schedule properties are
in the occupation of the plaintiffs and defendants 1 & 2. It is stated that the
plaintiffs are in occupation of the ground and first floors and the defendants
1 & 2 are in occupation of the other floors. Similarly, the rents from the
commercial portions of 'C' schedule property are being received by the
plaintiffs as well defendants 1 & 2 and the rents from the residential
portions are received by the defendants 1 to 4. It appears that the parties at
one point of time agreed that the suit 'A' schedule property can be sold by
public auction. The plaintiff as well as defendants have expressed their
____________
https://www.mhc.tn.gov.in/judis
willingness to search a prospective purchaser. By order dated 08.11.2022, a
learned single Judge of this Court passed an interim order directing the
plaintiffs and each one of the defendants to disclose the rental amounts
received from the various tenants so that equity can be worked out by the
Court later. The Advocate Commissioner was directed to file a report in the
Court.
3. When the applications came up for hearing subsequently, the
learned single Judge of this Court recorded the fact that the plaintiffs filed an
affidavit that the prospective purchaser, who has approached the plaintiffs,
was willing to purchase the property for a sum of Rs.9.50 crores. This
Court also recorded the statement that the defendants 1 to 4 are ready to
purchase the 'A' schedule property for a sum of Rs.10.10 crores. Since the
parties are competing with each other, the learned Judge found it better to go
for public auction so that whoever intend to purchase the property can
participate in the auction to be conducted by the Advocate Commissioner
and the successful bidder can purchase the property. It was for the said
____________
https://www.mhc.tn.gov.in/judis
purpose the Advocate Commissioner was directed to issue paper publication
for public auction in widely circulated English and Tamil newspapers and
commence the process for conducting public auction. It is against the order
of the learned single Judge disposing of the final decree application as
indicated above, the above appeal is filed by the defendants.
4. The appellants raised the following grounds:-
(i) The appellants have submitted a quotation pursuant to the
previous order dated 08.11.2022 and that the appellants' quotation
quoting the price of Rs.10.10 crores should be accepted, as the
respondents could not bring any prospective purchaser quoting higher
price.
(ii) The direction of the learned single Judge for public auction
of suit 'A' schedule property is erroneous, as the property is never
subjected to any debt or loan.
(iii) The property is a joint family property used for commercial
purpose for more than three decades by the brothers of single family
____________
https://www.mhc.tn.gov.in/judis
and that the sale of property by public auction would affect the
sentiments of individuals.
(iv) Allowing 'A' schedule property being sold by public auction
without considering the appellants' contention and desire is improper.
5. Even though several grounds are raised, none of the parties to this
litigation has submitted the crucial facts. This is not a case where the entire
'A' schedule property is held to be indivisible. Only when the property is
indivisible and the parties having regard to the nature of property, number of
shareholders and any other special circumstance agree for, the sale of
property can be made by public auction. When the sale is directed, then any
shareholder can apply for leave of Court to buy at the valuation the share or
shares of the party or parties asking for a sale and the Court can sell the
same to such shareholder at the price so ascertained. It is relevant to refer to
Sections 2 & 3 of the Partition Act, 1893, which read as follows:-
“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,
____________
https://www.mhc.tn.gov.in/judis
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 circumstance,
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 of 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.
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 or parties asking for a sale, the Court shall
order a valuation of the share or shares in such manner as
it may think fit and offer to sell the same 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
____________
https://www.mhc.tn.gov.in/judis
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.”
6. In the present case, both parties admit that the building in 'A'
schedule property is quite old and can be demolished for division of property
by metes and bounds. Neither the learned senior counsel appearing for
appellants nor the counsel appearing for respondents oppose the division of
property by metes and bounds as far as 'A' schedule property is concerned.
When the parties are agreeable for division of property by metes and
bounds, the Court need not go for sale by public auction or direct the sale of
property to any one of the shareholders for the price he quotes. On the
admitted facts, this Court finds that the property is divisible and it is
possible to allot the property to all the shareholders in equal proportion
____________
https://www.mhc.tn.gov.in/judis
without difficulties. Therefore, the order of the learned single Judge directing
the sale of property by public auction is liable to be set aside. Hence the
original side appeal is allowed and the order of the learned single Judge
dated 27.02.2024 in Application Nos.2773 & 2774 of 2020 in C.S.No.531
of 2018 is set aside and the matter is remitted for fresh consideration of final
decree application in accordance with law by dividing the property taking
into consideration the relevant facts. Consequently, C.M.P.No.5495 of 2024
is closed. No costs.
Index : yes/no (S.S.S.R.,J.) (K.R.S.,J.)
Neutral citation : yes/no 13.08.2024
ss
To
The Sub Assistant Registrar (O.S.)
High Court, Madras
____________
https://www.mhc.tn.gov.in/judis
S.S.SUNDAR, J.
AND
K.RAJASEKAR,J.
ss
13.08.2024
____________
https://www.mhc.tn.gov.in/judis
