VALLIAMMAL Vs. RAJATHIAMMAL

JUDGEMENT

(1.) ONE Rajathi Ammal the first respondent in these civil revision petitions filed O.S. No. 85 of 1978 in the Court of the Subordinate Judge of Madurai for partition and separate possession of her one-third share in the property described therein. The present second respondent and the revision petitioner were defendants 1 and 2 respectively in that action. On 19.4.1979 the preliminary decree was passed in the suit. The Commissioner appointed in I.A. No. 76 of 1980 submitted his report stating that the nature of the property is such that division by metes and bounds is not feasible. So in that application the Sub Court passed an order on 16.3.1982 that the said properly has to be sold in public auction under S. 2 of the Partition Act and the sale proceeds are to be shared among the parties. The revision petitioner who was a party in I.A. No. 76 of 1980 did not prefer any appeal or revision against the said order. Then the first respondent/plaintiff filed E.P. No. 3 of 1985 in O.S. No. 85 of 1978 for the sale of the said house. In the meanwhile, one Maruthamuthu who purchased the 1/3 share of the first defendant Mookayee Ammal got himself impleaded as the third respondent in the execution petition. Since he died pending the said petition present respondents 3 to 12 came on record as his legal representatives. On 17.11.1979 one Sri S. Vasudevan was appointed as Commissioner to sell the property among the sharers. On 15.7.1990 he conducted the auction and sold the property in favour of the fifth respondent who was the highest bidder for Rs. ONE lakh. Immediately after the sale he deposited 1/4th of the sale amount less his 1/3 share therein. He was given 45 days time for deposit of the balance amount by the Commissioner. At this stage the revision petitioner came forward with two applications. Of them E.A. No. 586 of 1990 is under S. 4 of the Partition Act requesting the Court to pass an order directing present respondents 3 to 12 to sell their undivided 1/3 share to him after the valuation of such share as fixed by the trial court. The next E.A. No. 587 of 1990 is under O. 21 R. 90 and S. 151 C.P.C. to set aside the sale conducted by the Commissioner. Both applications were resisted by respondents 3 to 12. After enquiry learned Subordinate Judge dismissed both the petitions without cost holding that the second defendant had no right to invoke S. 4 of the Partition Act and that the sale conducted by the Commissioner was not vitiated by any material irregularity. These two revision petitions are directed against the said orders.

(2.) THE revision petitioner claimed the benefit of S. 4 of the Partition Act on the ground that the suit property is her family dwelling house wherein she is residing along with the other co-sharers who are present respondents 1 and 2 and that the first defendant Mookayee Animal has alienated her undivided 1/3 share to the third defendant who is a stranger to their family. THE Court below has negatived her contention on the basis that she would be entitled to enforce the sale in her favour only in a partition action instituted by the alienee. Since the plaintiff in O.S. No. 85 of 1978 the first respondent herein herself is a member of the family, the provisions of S. 4 of the Partition Act cannot come to her rescue. Sri P.T.S. Narendravasan, learned counsel for the revision petitioner assailed these findings of the Court below and argued that S. 4 of the Partition Act is applicable even in a suit instituted by one of the members of the joint family and it is not necessary that this benefit can be availed of only in case the stranger alienee chooses to file the suit for division of the family house.

(3.) LEARNED counsel for the respondents further took the point that there must be an unconditional offer by the revision petitioner, from which he will not be permitted to resile, and it is only under such undertaking, that the Court may take an order permitting him to buy up the share. The very first condition for application of S. 4 is that the revision petitioner should give an unconditional undertaking to buy up the share. In the present case, it is clear that the revision petitioner never resorted to this procedure before filing of the petition. And this would preclude her from invoking the beneficial provision.