G. Ramanujam, J.
1. This Second Appeal came to be filed in the following circumstances:
There was a suit, O.S. No. 58 of 1943, filed by the appellant herein (plaintiff) on the file of the District Munsif of Erode for partition of his 3/4th share in the suit property, which he acquired by right of purchase under two sale deeds dated 4th March, 1942, and 14th May, 1942 against the defendant who claimed the other 1/4th. share. There was a preliminary decree for partition on 17th August, 1943. In C.M.P.. No. 816 of 1943 a final decree dated 5th April, 1944, was passed by the trial Court in pursuance of the said preliminary decree which allotted the eastern 3/4th share to the plaintiff and the western 1/4th share to the defendant. Against the said- final decree, both the parties have filed appeals to the District Court, Coimbatore in A.S. Nos. 305 and 327 of 1944. There was an order of remand in the above two appeals by the District Court on 13th December, 1944 directing the trial Court to consider the second report and the plan filed by the Commissioner before effecting a division of the properties. On remand, the trial Court passed a fresh final decree on 1st November, 1945, dividing the property into 4 blocks as per the Commissioner's first report and allotting blocks 1 to 3 to the plaintiff and the fourth block to the defendant. There was again an appeal to the Sub-Court, Coimbatore in A.S.No. 13, of 1948 by the defendant and there was the following joint endorsement made by the parties on the said appeal memo.The parties are agreeable to a remand, and the principles of the Indian Partition Act are applied in respect of the property.
2. On the basis of this endorsement the matter was remanded again to the trial Court for disposal as per the joint endorsement.
3. Thereafter in I.A. No. 166 of 1949 the plaintiff applied under Section 6 of the Partition Act to direct a sale of the properties by public auction. The trial Court, by order dated 27th June, 1949, dismissed the same holding that the said application cannot be taken as one under the Partition Act and that in any event the plaintiff cannot invoke Section 6 without his having resort to Section 2 at the first instance.. There was an appeal against the said order in A.S.No. 34 of 1950 on the file of the Sub-Court but the same was dismissed on 14th July, 1950, as not maintainable. There was a further appeal to this Court in C.M.A. No. 84 of 1951 and the same was also dismissed on 9th October, 1953...
4. Thereafter the plaintiff filed I. A. No. 2888 of 1961 for passing a final decree by directing the properties to be sold by auction among the co-sharers. The learned District Munsif of Erode by his order dated 24th March, 1962, took the view that the joint endorsement made by the parties in the earlier proceedings will not stand in the way of the plaintiff's application for passing a final decree, that the endorsement was only to the effect that the principles of the Partition Act was to be applied and not that the provisions of the Partition Act has to be applied and that the Court has got inherent power to direct the sale of the properties among the co-sharers in a proper case for the highest price, apart from the provisions of the Partition Act, and in that view he directed that the property be sold by a Commissioner to the highest bidder as between the plaintiff and the defendant with a right to set off his. share from the sale price. There was no appeal as against this order. In pursuance-of the above order, the Commissioner conducted sale of the property in auction as amongst the parties and the plaintiff was the successful bidder therein. By an order dated 31st August, 1962 the said sale to the plaintiff was confirmed on the plaintiff depositing the sale price. As against the said order dated 31st August, 1962 confirming the sale, the defendant filed an appeal to the Sub Court, Erode in A.S. No. 4 of 1963 which was allowed on two grounds (i) that the application for passing a final decree is not maintainable and (ii) that in any event, the sale is vitiated by various irregularities. The plaintiff has come forward with the present second appeal aggrieved against the order of the learned Subordinate Judge allowing the appeal, A.S. No. 4 of 1963 and setting aside the sale in favour of the plaintiff.
5. In this second appeal, Mr. S. Mohan, learned Counsel for the appellant contended that the reasoning of the lower appellate Court that the joint endorsement in the earlier proceedings stood in the way of the petitioner moving the Court for passing a final decree by way of a direction to sell the property among the sharers is erroneous having regard to the fact that the joint endorsement merely directed the parties to follow the principles of the Indian Partition Act and not to apply under a particular provision of the said Act. According to the learned Counsel, there was a difference between saying that the parties agreed to apply the Partition Act and their saying that they agreed to apply principles of the Partition Act and what the parties attempted to do now in these proceedings is to apply the principles of the Partition. Act and this is not against the joint endorsement. I find there is some force in the contention aforesaid. The lower appellate Court proceeded on the basis that the trial Court had ignored the joint endorsement, when ordering the application in I.A. No. 2888 of 1961. This does not appear to be correct. The trial Court in fact considered the scope of the joint endorsement and held that the joint endorsement merely directed the parties to apply the principles of the Indian Partition Act and not the provisions of the said Act. The lower appellate Court has not considered the reasoning given by the trial Court for entertaining the petition in the face of the endorsement, before holding that the present application is barred by the joint endorsement as well as by the decision in I.A.No. 156 of 1949 dismissing the application by the plaintiff purported to have been filed under Section 6 of the Partition Act. After due consideration of this question, I am inclined to agree with the view taken by the : trial Court and hold that the joint endorsement in the earlier proceedings is not a bar to the application in I. A. No. 2888 of 1961. What the petitioner seeks is to invoke the principles of the Partition Act contained in Sections 4 and 6 as per the joint endorsement and this does not in any way run counter to the joint endorsement. As I read the joint endorsement, I do not construe it as a direction to the plaintiff to file an application only under Section 2 of the Partition Act. If that were the intention, the joint endorsement would have been more specific. In the facts and circumstances of this case, it is difficult to believe that the plaintiff would have put himself under a disability by undertaking to file an application under Section 2, for, by filing such an application an advantage is given to the defendant who is a smaller sharer to take the property at a price fixed by the Court under Section 3. I do not think-that the parties, especially the plaintiff would have contemplated such a situation.
6. It seems to be by now well settled that the Court has got inherent jurisdiction to direct a sale of the properties among the co-sharers apart from the provisions of the Partition Act, though there was some divergence of judicial opinion in some earlier cases. In Basanta Kumar v. Moti Lal (1911) 11 Indian Cases 370, it was held that even in cases where Section 4 of the Partition Act does not apply, the Court has got jurisdiction to allot the property which is incapable of division to the person in occupation and compensate the other persons in money. In Debendra Nath Bhattacharjee v. Hari Das Bhattacharjee 15 C.W.N. 552, the correctness of the above decision was doubted and it was expressed that when the nature of the property jointly owned by the plaintiff and the defendant is such that a division of it amongst them cannot reasonably or conveniently be made, the plaintiff has not got the right to claim that the defendant should be compelled to transfer his share to the plaintiff at a valuation, merely because he happened to have possession of the property at the commencement of the action. The learned Judges held that the proper course in that case is to direct a sale of the property amongst 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.
7. In Ram Prasad v. Mt. Mukandi : AIR1929All443 , the plaintiff who was a 2/3rd sharer requested the Court that a sale may be held and that whoever among the co-sharers offers the 'highest bid may be given the property. The defendant sought the aid of Section 3 of the Partition Act treating the request of the plaintiff as one under Section 2 of the Partition Act. The Court held that the provisions of the Partition Act do not apply to the facts of the said case and directed the sale of the property among the co-sharers for the highest amount offered by them outside the provisions of the Partition Act. In Mohit Krishna v. Pranab Chandra : AIR1930Cal616 , the above decision was relied on and followed. In Subbamma v. Veerayya (1932) 61 M.L.J. 552 : A.I.R. 1932 Mad. 15, Venkatasubba Rao, J., took the view that independent of the Partition Act, the Court has an inherent power to refuse to divide a property by metes and bounds and to adopt such other means as may appear equitable, for effecting a just partition.
8. A different note was struck by Byers, J., in Athappa Chettiar v. Somasundaram Chettiar (1944) 1 M.L.J. 296, where it was held that unless there is an application under Section 2 or 4 of the Indian Partition Act, the Court has no jurisdiction to impose a forced sale upon the members of the family. The decisions in Ram Prasad v. Mt. Mukandi : AIR1929All443 , and Mohit Krishna v. Pranab Chandra : AIR1930Cal616 , were commented upon by a later decision of the Calcutta High Court in Nitya Gopal v. Pran Krishna : AIR1952Cal893 '' where a Division Bench of the Calcutta High Court expressed that the Partition Act confers on the Court, in a suit for partition, a power of sale in certain specified cases, and that as such no general power of sale can be spelt out from the provisions of the Act or from the inherent jurisdiction of the Court and that the Courts cannot get round the express terms of the Partition Act by acting outside the provisions of the Act. This decision of the Division Bench was followed by a single Judge of the same Court in a later decision in Probhat Kumar v. Rammohan : AIR1953Cal177 , where it was held that the Court has no jurisdiction to direct a sale under the Partition Act when there is no request by persons interested in more than a moiety of the properties sought to be divided, to direct a sale and that apart from the provisions of the Partition Act, the Court has no power to direct a sale of the property in a partition action. The power of the Court to direct a sale in a suit for partition was held limited to the cases provided for in the Partition Act.
9. In Ramaprasada Rao v. Subbaramaiah (1957) 2 A.W.R. 488 : A.I.R. 1958 A.P. 647 a Division Bench of the Andhra Pradesh High Court considered all the decisions above referred to and was inclined to take the view that 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 normally adopted in a partition suit and that it is not open to a party to insist upon the Court to follow a particular course contemplated by the provisions of the Partition Act. Subba Rao, C.J., speaking for the Bench expressed:
Partition is a legal process by which joint title and possession of co-owners of the entire joint property is converted into separate title and possession of each of the co-owners in respect of specific item or items. The joint property is divided in specie and each of the erst-while joint owners is put in possession of specific extent of property, which is allotted to his share. But many contingencies may be visualised when in practice the division by metes and bounds of every item of joint family property is not possible....A Court may also be confronted with a situation, namely, that the item of property is not capable of physical partition or is such that, if divided, it will lose its intrinsic worth, in such a case, that item is allotted to one and compensation in money value is given to the other 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 own discretion. Whatever method is adopted, it is only to implement the process of equitable partition. It would well-nigh be impossible for a Court to effectuate a partition on an equitable basis, if it should be held that it is under a legal obligation to divide every item of the joint property in specie. Where properties are susceptible of such division, the Court adopts it. Where it is not, it adopts one or other of the alternative methods narrated above. 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. Before the Act, a party had no right to insist upon the Court to follow a particular course in the process of partition or to insist upon purchasing the share of the other co-owner under certain circumstances.
10. Referring to the decisions of the Calcutta High Court laying down the principle that Court has no power apart from the provisions of the Partition Act to direct a sale of the properties in a partition suit, they expressed their specific disagreement. 'With respect I adopt the same reasoning given by Subba Rao, C.J., in the said -decision and hold that in this case the plaintiff (appellant) was entitled to move the Court for passing a final decree after directing a sale of the property to the highest bidder as among the sharers. Therefore the decision of the lower appellate Court that the application filed by the plaintiff for passing a final decree was not maintainable and that the same is barred by res judicata cannot be accepted as correct.
11. But the lower appellate Court has given another reason for setting aside the sale confirmed in favour of the plaintiff by the trial Court. It held that there were many irregularities in the conduct of the sale by the Commissioner. The lower appellate Court held that the Court which has got the duty to fix upset price has not done so in this case and allowed the same to be fixed by the Commissioner, contrary to Rules 199 and 200 of the Civil Rules of practice. It was also found that the Commissioner conducted the sale at 5-15 p.m. which according to the defendant is contrary to Rules 188, 193, 197 and 200 of the Civil Rules of practice. Rule 188 provides that all sales by Court shall begin at noon, and the sale of any lots, not put up before 5 p.m. shall be adjourned to noon on the next Court day. Rule 197 of the Civil Rules of practice enables the Court to appoint a person other than an Officer of Court to sell the property. But though Rule 197 does not refer to the procedure to be followed in the conduct of the sale by the Commissioner appointed by the Court, he is bound by the procedure provided in Rule 188 of Civil 'Rules of practice aforesaid. Further Rule 200 directs the Commissioner to conduct the sale in the manner prescribed by the Code of Civil Procedure. In view of these provisions, the lower appellate Court held that the conduct of the sale by the Commissioner after 5 p.m. and the fixation of upset price by the Commissioner himself just prior to the sale has vitiated the sale.
12. The lower appellate Court also held that reasonable time has not been given to the bidders to come and bid at the sale. Notice has been issued by the Commissioner in this case on 23rd July, 1962, notifying the sale on 30th July, 1962. In this case the sale has been directed to be conducted among the two co sharers and it is only the defendant who has to attend the auction sale in addition to the plaintiff and in the circumstances, it cannot be said that one week's notice given by the Commissioner was insufficient or unreasonable.
13. Of the reasons given by the lower appellate Court as invalidating the sale, I accept only the reason based upon the violation of Rules 188 and 199 of the Civil Rules of practice in that the Commissioner fixed the upset price instead of the Court and sold the property to the plaintiff who was the only bidder present at 5-15 p.m.. I do not consider the other reasons as in any way constituting an irregularity in the sale. The sale having been conducted beyond the hour fixed under Rule 188 of the Civil Rules of practice, on the basis of an upset price fixed by the Commissioner himself the sale cannot be said to be valid and the same has to be set aside. The trial Court has to therefore conduct a resale of the property among the sharers in pursuance of its earlier order dated 24th March, 1962, and pass a final decree after such sale.
14. Finally, I have to consider one other contention raised by the learned Counsel for the appellant before me. The order directing the sale of the property was passed on 24th March, 1962, but the same was not challenged in appeal. After the sale of the property by the Commissioner, there was a final order passed by the trial Court confirming the sale and passing a final decree. It is against the later order the defendant filed an appeal to the lower appellate Court and it was argued before the lower appellate Court that in an appeal filed against the later order, the correctness of the order passed by the lower Court on 24th March, 1962, cannot be challenged as it has been allowed to become final. But this contention was negatived by the lower appellate Court holding that in an appeal filled against the later order, the appellant can raise all his objections even though they may relate to the findings recorded in the order dated 24th March, 1962. Having regard to the nature of the orders passed on 24th March, 1962 and 31st August, 1962, I agree with the view taken by the lower appellate Court and hold that the defendant cant raise all objections relating to the earlier order dated 24th March, 1962, in the appeal which he had filed against the order dated 31st August, 1962.
15. In the result, I allow the appeal in part and remand the matter to the trial Court for conducting a fresh sale between the sharers in accordance with law and in pursuance of its order dated 24th March, 1962, and for passing a final decree on the basis of such a sale. In the circumstances, I make no order as to costs. No leave.