PONVEL NADAR Vs. KHURSHEED BEGUM

JUDGEMENT

(1.) THIS civil revision petition, at the instance of plaintiffs 2 and 3 in O.S. 5017 of 1980 on the file ?of the VIII Asst Judge, City Civil Court, Madras, raises an interesting question under S. 4 of the Partition Act, 1893 (hereinafter referred to as the Act), in the following backdrop of facts. The property bearing old door No. 30 and new No. 33, Narayana Naicken St., Pudupet, Madras 2, belonged to one Khader Bi. Under a deed of settlement dt. 12-1-1945, she settled that property in favour of the 3rd respondent herein and his brother Mohamood Basha, Respondents 1 and 2 are the wife and son of Mahamood Basha respectively. In O.S 8017 of 1980 the 3rd respondent herein instituted a suit for partition and separate possession of a half share in the property so settled and for rendition of accounts of the mesne profits and other reliefs. While that suit was pending, on 15-7-1981, the 3rd respondent sold his undivided half share in favour of the petitioners herein and thereupon, the petitioners filed I.A. 11267 of 1981 seeking permission to come on record as plaintiffs 2 and 3 in the suit and to prosecute the further proceedings. By an order dated 22-7-1983, in I.A. 11267 of 1981, the petitioners were impleaded as plaintiffs 2 and 3 in the suit and on 31 10-1984, a preliminary decree for partition was also passed. While matters stood thus, respondents 1 and 2 tiled I.A. 14646 of 1984 under S. 4 of the Act, praying that a sale of the share of the third respondent purchased by the petitioners may be directed at a price to be fixed by court. In the affidavit filed in support of that application, respondents 1 and 2, after referring to the purchase of the share of the third respondent by the petitioners, stated that it is impossible for respondents 1 and 2 and the petitioners to live in the family house and that they are willing to purchase the share of the petitioner in the property at the valuation to be fixed by the court. In the counter filed by the petitioners, they contended that only after the appointment of a commissioner in the course of the final decree proceedings, it could be ascertained whether the property could be divided by metes and bounds or not and only thereafter when it is found that the property is not divisible, it could be sold in auction and that respondents 1 and 2 do not have any resources or funds to purchase the share of the petitioners. It was also further pleaded by the petitioners that the property could be divided by metes and bounds and that the application had been filed by respondents 1 and 2 only with a view to delay the proceed ings and that the application was also premature, deserving dismissal.

(2.) ON a consideration of the rival contentions so put forth and relying upon and applying S. 4 of the Act, the court below held that respondents 1 and 2 are entitled to purchase the share of the petitioners at a value to be fixed by the court and for this purpose, appointed a commissioner for ascertaining the value of the property. It is the correctness of this order that is questioned in this civil revision petition.