1. This suit concerns the partition of immovable property situate at Mahim, Bombay, belonging to a joint family. One Laxman, who died long back, left behind 3 sons. Mahadeo, one of his sons, dies in 1970 and left behind the first plaintiff, a son. The second plaintiff is the first plaintiff's wife and the third and fourth plaintiff's wife and the third and fourth plaintiff's wife and the third and fourth plaintiffs are their daughter. A second son, Moreshwar, died in 1962 leaving behind four sons and a widow. The widow died during the pendency of the suit. The son and their families are defendants, represented by Mr. Bariava, learned counsel. Moreshwar also left behind four daughters, who are defendants 14, 15, 16 and 17, Defendant 17 has not chosen to appear though she is represented. Against defendants 14, 15 and 16 the suit was dismissed upon the application of Mr. Phadkar, learned counsel for the plaintiffs. A third son of Laxman, Kesharinath, died in 1945 leaving behind a widow and son. The widow, the son and the sons's wife are defendants, represented by Mr. Devitre, learned counsel.
2. The joint family is admitted. It is admitted that the suit property is joint family property. There is
no dispute that the joint family owns property other than the suit property.
3. In para 5 of the plaint the plaintiffs claim a partition of the suit property and their 1/3rd share therein. It is there averred that the suit property cannot be divided by metes and bounds, and it is submitted that is should be sold and the net sale proceeds divided amongst the branches in accordance with their respective shares. By prayer (a) of the plaint a declaration is sought, 'if necessary' that the plaintiffs, as representing the branch of Mahadeo, have a 1/3rd shard in the joint Hindu family. By prayer (b) the plaintiffs ask 'that the suit property be sold by and under the direction of the Hon'ble Court, with liberty to the plaintiffs to bid at sale and the 1/3rd of the net sale proceeds may be handed over to the plaintiffs.........'
4. The plaint makes allegation of the defalcation of the income of the suit property and of the payment by the plaintiffs of an antecedent debt. Mr. Phaskar has not pressed these allegations.
5. In the written statement it is contended that the suit is not maintainable for want of necessary parties. The sale of the suit property is opposed. The sale of the suit property is opposed. It is denied that it cannot be divided by metes and bounds. In the supplementary written statements it is contended that the plaintiffs have no right to buy the share of the defendants in the suit property. It is also contended that the suit property should be divided by metes and bounds in accordance with the report of the Commissioner appointed by the court, to which reference shall immediately be made.
6. On notices of motion taken out by the parties the court appointed, by consent. R. L. Chawla, Architect, 'Commissioner to inspect the property and to evaluate and to report on the valuation of the property and also as to whether the property is capable of partition by metes and bounds in three equal or nearly equal share'. Chawla made a report on 31st Mar., 1973. He stated that 'the property in the present condition is not capable of being divided strictly according to B.M.C D.C (Bombay Municipal Corporation Development Control) Rules but I have tried to divide it into nearly three equal parts at various boundaries of structure. This division will not be approved by Bombay Municipal Corporation strictly under the rules, but it may be considered as a family partition, the parties agree (sic) to develop the individual portions strictly according to D.C. Rules regarding open spaces and floor space index prevalent in the locality and do not ask any concession under pretext of hardship'.
7. Issues have been framed upon the basis of the pleadings. The parties have led not oral evidence.
8. It is common ground that this is not a suit under the Partition Act. Mr. Phadkar, learned counsel for the plaintiffs, submitted that the suit property should be sold by public auction. He submitted that the court had inherent power to order the sale, decor the provisions of the Partition Act. In support of the submission he referred to the judgment of a Division Bench of the Andhra Pradesh High Court in Ramaprasada Rao v. Subbaramaiah AIR 1958 Ap 647, The point before the court was whether it had power dehors the provisions of the Partition Act od direct the sale of joint family property and divide the proceeds between the members, The court observed, ................ 'But many contingencies may be visualized when in practice the division by metes and bounds of every item of joint family property is not possible. A property might have to be allotted to one of the sharers and the others have to be compensated with money; this was called owlet. A court might be confronted with a situation where a property was not capable of physical partition or was such that, if divided, would lose its intrinsic worth. In such a case, that property was allotted to one sharer and compensation in money value is given to the others' and, if such a course is not possible, it is sold outright and the sale proceeds divided between the joint owners. All the aforesaid and similar other methods are adopted by courts in making an equitable partition of the joint properties either with the consent of the parties or, where such consent is not forthcoming, in exercise of its discretion.
9. The provisions of the Partition Act do not, in any way entrench upon the undoubted power of the court to effectuate a partition between co-owners in one or other of the methods suggested above.
10. Mr. Variava, on the other hand, drew my attention to the judgment of a Division Bench of the Calcutta High Court in the case of Nitya Gopal V. Paran Krishna. : AIR1952Cal893 . The court considered the law as it stood and came to the conclusion that earlier cases did not support the position that the court had an inherent power of sale in case it found that the property could not be conveniently partitioned of that partition would affect its intrinsic value. The cases showed, in fact, the there was so inherent right to see the property. The court then considered the provisions of the Partition Act and concluded that it conferred on the court, in a suit for partition, a power of sale in certain specified cases, No general power of sale could be spelt out from its provisions. The court then made reference to cases dealing with Ss 2 and 3 of the Partition. Act and found that there was no current of decisions which compelled it to hold that there was an inherent power in the court to direct a sale in lieu of partition. The court held that there was no power in the court to order a sale in a partition suit if it was not covered by the provisions of the Partition Act.
11. Mr. Variava also made reference to the Supreme Court's judgment in it. Ramamurthi v. Vrajeswararao. : 1SCR904 . The principal question before the Supreme Court concerned the interpretation of Ss. 2 and 3 of the Partition Act. In para 8 of the judgment the following observations were made:-
'..................It would appeal from the Objects and Reasons for the enactment of the Partition Act that as the las stood the court was bound to give a share to each of the parties and could not direct a sale of division of the proceeds. The could be, instances where there were insuperable practical difficulties in the way of making and equal division and the court has either powerless to give effect to its decree or was driven to all kinds of shifts and expedients in order to do so. The court was, therefore, given a discretionary authority to direct a sale where a partition could not reasonably be made and the sale would, in the opinion of the court, be more beneficial to the parties. But having regard to the strong attachment of the people in this country to their landed possessions the consent of the parties interested at least to the extent of a moiety in the property was made a condition precedent to the exercise by the court of the new power. At the same time in order to prevent any oppressive exercise of this privilege those shareholders who did not desire a sale were given a right to buy the other out at a valuation to be determined by the Court.'
12. When the Andhra Pradesh judgment was cited by Mr. Phadkar. I was, with respect, not inclined to follow it, The view I tentatively expressed than was fortified by the said decision of the Calcutta High Court with which I respectfully concur. The observations of the Supreme Court put the matter beyond controversy. The court has no power, other than the power conferred under the Partition Act to order sale of property in a partition suit. The suit property cannot, therefore, be ordered to be sold, whether by public auction or by an auction between the parties to the suit.
13. Mr. Phadkar contended that if I would not order sale of the suit property I should partition it as proposed by the report of Chawla with the qualification that the plaintiffs should be allotted, out of the three portions, demarcated by Chawla, one of the two portions which had a frontage on the Caddel road. The extract from Chawla's report which I have quoted earlier shows that the suit property is not capable of being divided according to the Municipality's Development Control Rules and that the division which is contemplated by three-part could operate only as a family arrangement. It is thus clear that the suit property cannot be divided by metes and bounds. For that to be done, the divisions would have to be made separate and distinct for all purposes and there respective owners would have to b made completely independent of and not reliant upon each other. The court cannot. In the circumstances, order the division of the suit property upon the basis of Chawla's report, with or without qualification. This could only have been done by consent and consent is not forthcoming.
14. It was contended by Mr. Variava that the suit as it was framed was not a suit for partition but for sale and that of only one of the joint family properties. He submitted that if I hold, as I do, that the suit property could not be sold, then I must order the suit to be dismissed. He placed reliance upon the judgment of a learned single Judge of the Calcutta High Court in Chanta Kali v. Radha Rani Debt. (1966) 72 Cal WN 837. The learned Judge expressed the view that in cases not contemplated under the Partition Act the court had inherent power to direct a sale. He said, however, that the was bound by the decision in Nitya Gopal's case : AIR1952Cal893 (ibid) and so could not in the case before him order sale, He had asked plaintiff's counsel whether he would agree to a partition if the other parties paid him the value of the share at a valuation fixed by the Court but this was not acceptable. The other parties to the suit, who were the holders of a 2/3rd shard, were already in possession of the property. A sale by public auction to a stranger might not only disintegrate the family but would render it homeless. Thus, even assuming that he had inherent jurisdiction to direct sale of the property by public auction, it was not a fit and proper case to do so. As the plaintiff had asked for no other relief, the application had to be dismissed with costs.
15. It was Mr. Variava's submission, in the alternative, that if I concluded that the suit was a partition suit. I should order a valuation of the 1/3rd interest of the plaintiffs in the suit property and require the defendants to pay the amount of the valuation to the plaintiffs. Mr. Divert adopted this, as he adopted the other of Mr. Variava's submissions.
16. The sale of the suit property not being permissible, I have the difficult task of deciding whether I should direct valuation of the 1/3rd share of the plaintiffs in the suit property and payment thereof by the defendants to the plaintiffs and/or whether I should dismiss the suit.
17. Upon a construction of the plaint it is not a suit for partition in the true sense. The relevant prayer of the plaint (prayer b) and the relevant paragraph of the plaint (para 5) make it clear, that all that the plaintiffs seek is a sale of the suit property. This being impermissible, the suit, as I think, must be dismissed.
18. There is another, though not entirely legal, reason for following this course. The plaintiffs reside in a part of the suit property. Were IO to order partition by payment by the defendants to the plaintiffs of the plaintiff's share in the suit property upon a valuation to be made, the plaintiffs would be required to surrender possession of the part of the suit property which is in their possession. I cannot be blind to the fact that obtaining satisfactory alternative accommodation in this city would then become for the plaintiffs a virtually impossible task.
19. Mr. Variava submitted that the suit should also be dismissed because it had been dismissed against defendants 14, 15 and 16, who were necessary parties, Mr. Phadkar contended that these ladies were not necessary parties inasmuch as they were married and has lost their right to claim maintenance thereout. Coming as I do to the conclusion that the sit must be dismissed on merits, I do not find it necessary to decide this preliminary issue.
1. Answer the issues thus:-
1. Not necessary.
2. In the negative, it cannot be divided by metes and bounds.
3. In the negative.
4. Not pressed, inasmuch as it is common ground that the suit is not under the Partition Act.
5. In the negative.
6. Does not arise.
7. To 10: Not pressed.
20. In the result, the suit is dismissed. The defendants do not press for costs; there shall, therefore, be no order as to costs.
21. Upon Mr. Phadkar's request, the Court Receiver do continue in possession of the suit property until 12th Apr., 1982. The Court Receiver then do hand over (a) possession of the suit property to the plaintiffs ands defendants 1 to 9 and 11 to 13 and (b) to their advocates all recoveries made from the suit property after deducting his costs, charges and expenses. The Court Receiver do thereupon stand discharged without passing accounts.
22. Suit dismissed.