SAINABA Vs. ABDURAHIMAN KOYA

JUDGEMENT

(1.) The Judgment of the court was delivered by Balagangadharan Nair, J. - Defendants 1 to 4 are the appellants in A.S. No. 77 and defendant 5 represented by his power holder is the appellant in A.S. No. 95 and the petitioner in C.R.P. No. 739. These arise out of a suit for partition instituted by the sole plaintiff against his 3 sisters (defendants 1 to 3) and two brothers (defendants 4 and 5) for partition of a residential house and compound. By the preliminary decree dated 17th September, 1979 the court below directed the property to be divided into 9 equal shares allotting 2 shares to the plaintiff. On an application I.A. 731 filed by the plaintiff for passing the final decree the Court appointed a Commissioner who submitted his report on 25th June, 1980 stating that as it was not reasonable or convenient to divide the property, a sale and distribution of the proceeds would be more beneficial to all and requesting the Court's direction to that effect under S.2 of the Partition Act ("the Act"). In the objection filed by them on 4th July, 1980 defendant 1 to 4 referred to the opinion given by the Commissioner in the report and suggested that the court might be pleased to order sale of the property among the sharers and distribute the proceeds according to the preliminary decree. They added that the sale should be confined to the sharers as it is their residential house and defendants 2, 4 and 5 have no other house to reside. To this the plaintiff respondent filed a counter stating that no sale was necessary and that the Commissioner might be directed to report on the value of the shares of the other parties under S.3(1) of the Act. The same day he made an application I.A. 2266 under S.3(1) of the Act in which, he said that as persons together holding more than 50 per cent of the shares have requested for a sale of the property under the Act, he was making the application as a smaller sharer holding only 2/9 shares for leave to buy at a valuation the shares of the other parties under S.3(1). He prayed that the value of the shares of the other parties might be fixed and they might be sold to him at an amount fixed by the court. To this defendants 1 to 4 filed an objection contending that the application was not maintainable as they had made no motion under S.2, although they had stated in the counter to the report that the property was not susceptible of partition.

(2.) The 5th defendant is in Saudi Arabia. On 24th October 1980 he had been set ex parte on the final decree application I.A. No. 731 of 1980 on the ground that he had not appeared. On 20th November, 1980 his father inlaw made two applications I.A. 4227 and 4228, the latter to set aside the order declaring him ex parte and the former to allow him to prosecute the case. The applications were supported by the affidavits of the power of Attorney-holder. Along with I.A. 4227 of 1980 he had also produced a power of attorney executed by the 5th defendant and purporting to be attested by the Second Secretary of the Indian Embassy at Jeddah. On 20th November, 1980 the court set aside the order declaring the 5th defendant ex parte, thus allowing I.A. 4228. The plaintiff objected to I.A. No. 4227 on the ground that the power of attorney produced in support of the application was not valid or genuine.

(3.) On 13th January, 1981 the court allowed I. A. No. 2266 by directing that the Commissioner would value the property and that the shares of defendants 1 to 5 would be sold to the plaintiff at a price fixed by the court. The same day the court dismissed I.A. No. 4227 holding the power of attorney to be invalid. From the former order defendants 1 to 5 have filed the two appeals and from the latter order defendant 5 has filed the revision.