ALLI AMMAL Vs. NATARAJA MUDALIAR

JUDGEMENT

(1.) THIS is a revision against the order of the Fifth Assistant Judge, City Civil Court, madras, dismissing the application of the first petitioner, who was the first defendant in the Court below, in I. A. No. 4114 of 1970 under the following circumstances:

(2.) THE plaintiff instituted a suit for partition against his two sisters, one brother and the legal representatives of two of his deceased sisters and obtained a preliminary decree on 1-2-1967. Subsequently, he filed an application for a final decree. The Court, at his request, appointed a Commissioner to divide the properties by metes and bounds. The Commissioner, after an inspection of the three items of property which were the subject-matter of the suit, reported that none of the items was divisible physically. All the parties were agreed that the properties could not be conveniently divided. Thereupon, the Court passed an order on 28-11-1968, directing the Commissioner to sell the three items in public auction, under Section 2 of the Partition Act, 1893 (Act 4 of 1893 ). Then the first defendant came up with an application in I. A. No. 1111 of 1969 under Sec. 3 (1) of the Partition Act applying for leave to buy the properties at a valuation, to be fixed by the Court. On 10-3-1969, the Court passed an order on this application directing the Commissioner to value the properties and permitting the first defendant to purchase the same at a valuation to be fixed by the Court on foot of the Commissioner's report. On three items of property at Rs. 37,750 on the basis of the Commissioner's report and directed the first defendant to give in writing on or before 28-10-1969 her willingness to purchase the properties and to deposit the entire sale price of Rs. 37,750 into Court on 29-10-1969. In pursuance of this order, the first defendant filed an affidavit on 28-10-1969 expression her willingness to purchase. When the matter was called the next day, she wanted time to pay the amount. The matter was being adjourned from time to time at her request till in February 1970 the first defendant filed I. A. No. 4114 of 1970, whereby, she made three requests: (1) to permit her to set-off against the amount of Rs. 37,750 the value of her admitted one-sixth share in the properties; (2) to permit her, without paying the share of the minor fifth defendant, to grant a charge in his favour in respect of item (1) for the minor's share of the sale price; and (3) to permit her to grant a similar charge in respect of the second defendant's share of the value of the property. This application was resisted by the plaintiff and the third and the fourth defendants, whereas Neelakantan, the second defendant filed an affidavit to the effect that the first defendant might be permitted to grant a charge in his favour as proposed by him. As regards the fifth defendant, the first defendant in her capacity as his guardian ad litem had already filed an affidavit in support of her application consenting to the proposal made by her in her individual capacity. The learned Fifth assistant Judge, City Civil Court, Madras, without considering the merits of the application, dismissed it on a technical ground, which appears to me to have no substance whatsoever. Common sense and equity require that when one of several sharers offers to purchase the whole property under Section 3 of the Partition Act, she should be allowed at least to set-off the value of her own share against the price of the entire properties. In fact, clause 2 of Section 6 of the Partition Act, prescribes that-

(3.) I may, before parting with this case, notice the objection raised by the respondents to the maintainability of this civil revision petition. It is contended that under Section 8 of the Partition Act, the order for sale under Section 2 must be deemed to be a decree and as the decree is appealable under Section 81, C. P. Code, the petitioner should have presented an appeal against the order instead of a civil revision petition. I am unable to agree. It may be noticed that Section 8 of the Partition Act runs as follows: