(i) In a suit for partition, at the first stage, the court decides whether the plaintiff has a share in the suit property and is entitled to division and separate possession.
This position is exercise of judicial function and results in a decree under Order XX Rule 18(1) termed as preliminary decree under Order XX Rule 18(2) of CPC.
The decree is termed a preliminary decree when further proceedings have to be taken before the suit can be completely disposed of. It is a final decree when such adjudication completely disposes of the suit. It may be partly preliminary and partly final. (Ref. Para 7, 10 - Shub Karan Bubna)
(ii) If the court can conveniently and without further enquiry, make the division without assistance of the commissioner or upon agreement of the parties or where the parties agree upon the manner of division, the court can pass a composite decree comprising the preliminary decree declaring the rights of several parties as well as the final decree dividing the properties by metes and bounds in regard to immoveable properties. (Ref : Shub Karan Bubna, para 18.2 and 20)
(iii) In order to determine whether a decree in a suit was a preliminary decree or a final decree or a decree partly preliminary and partly final, reference has to be made to the decree itself. Where it is a compromise decree, the answer to this issue has to be gathered from the "intention of the parties". The intention would be gathered from the facts which would indicate as to whether anything remained to be done for the future on the question of partition of properties jointly held. (Ref : Rachakonda Venkat Rao, paras 19 and 22.)
(iv) If a division by metes and bounds cannot be made without further enquiry, then first, the preliminary decree shall be passed and thereafter a commissioner is appointed to physically examine the property to suggest manner of division. (Ref : Shub Karan Bubna, para 18.2)
(v) Consequential division by metes and bounds is a ministerial or administrative act requiring physical inspection, measurements, calculations and consideration of various permutations/ combinations/alternatives of division which is referred to the collector/local commissioner under Order XXVI. This duty in the normal course of the proceedings before the court is a continuation of the preliminary decree.
(vi) If only a preliminary decree is passed at the first stage, no separate application is necessary for passing of a final decree. (Ref: Shub Karan Bubna and Bimal Kumar)
(vii) On receipt of the report of the commissioner and hearing objections thereto, the court passes the final decree whereby the relief of separating the property by metes and bounds is granted. (Ref : Shub Karan Bubna, para 18.2)
(viii) In a partition suit, a final decree can be in the form of a decree passed on a compromise between the parties in its entirety leaving nothing to be done in the future.(Ref : Bimal Kumar, paras 26 and 28)
(ix) In a partition suit, under Section 2 of the Partition Act, having regard to the nature of the property or large number of shareholders or in other special circumstance, if it appears to the court that the division of the property cannot reasonably or conveniently be made and that a sale of the property would be more beneficial, it can direct sale of the property and distribution of the proceeds as per shares declared. In addition, the court may be requested to direct sale by shareholders, interested individually or collectively to the extent of one moeity or upwards. (Ref : Shub Karan Bubna, para 18.2 and R. Rmamurthi Iyer, para 8)
(x) It is not obligatory on the court to give a positive finding that the property is incapable of division by metes and bounds. It should only, "appear" that it is not so capable of division. Parties may jointly agree to such dispossession of the property. (Ref : R. Ramamurthi Iyer, para 13)
(xi) The request from the shareholder (s) for sale of the property does not have to be in the nature of a formal prayer. (Ref : Rani Aloka Dudhoria, para 48; R. Rmamurthi Iyer, para 13) If a party or co-sharer asks for sale of a property under Section 2 of the Partition Act, it is the duty of the court to order the valuation of the shares (Ref.: Malati Ramachandra Raut).
(xii) The words employed in Section 3(1) only require the shareholder has to merely inform the court or to notify to it that he is prepared to buy at a valuation the share of the party asking for sale. No formal application for the purpose is necessary (R. Ramamurthi Iyer).
It is obligatory upon the court to offer to sell the same to the shareholder(s) who seek to buy the shares of the other party in terms of Section 3 at the price determined upon such valuation. The court has no discretion or option or choice in this matter. (Ref : Malati Ramchandra Raut, para 9; R. Ramamurthi Iyer, paras 8 and 11)
(xiii) The right of a co-sharer to purchase a property directed to be sold under Section 3 of the Partition Act accrues on the date the co-sharer request the court to sell the property to him. The valuation of the shares has to be made on the date of accrual of this right. (Ref : Malati Ramchandra Raut, para 10)
(xiv) In a partition suit, the plaintiff is not wholly dominus litis. After a shareholder has applied for leave to buy at a valuation under Section 3 of the Partition Act, the plaintiff who requested the court to exercise the power under Section 2 of ordering the sale, cannot withdraw the suit under Order 23 Rule 1 of the CPC. (Ref : R. Rmamurthi Iyer, paras 9 and 10)
(xiii) In partition matters, it is always open to the parties to enter into a fresh arrangement including a decision to be again joint with respect to the properties meaning thereby that they may throw the properties in the common pool once again. (Ref : Rachakonda Venkat Rao, para 21.)
Delhi High Court
RFA(OS) 124/2014 & CM Nos.13019 and 18965/2014Read full judgment here ;click here
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