PRASANNA VENKATACHALAM Vs. AKKAMMA

JUDGEMENT

(1.) THIS judgment shall govern both these two intra court appeals, which have arisen from a common order dated 21/8/2009 of the learned single Judge of this Court made in Application No. 2850 of 2009, seeking sale of the petition mentioned property to the applicant by the respondents at the prevailing market rate as per the right of preemption devolving on the applicant under Sections 2 and 3 of the Indian Partition act, 1893, while Application No. 1244 of 2001 was for the appointment of an Advocate Commissioner for the purpose of dividing the suit property.

(2.) THESE appeals have been brought forth under the following facts and circumstances:

(3.) ADVANCING the arguments on behalf of the appellant/plaintiff, the learned counsel would submit that the learned single Judge has made an erroneous order in ordering sale in favour of the 1st respondent; that the object of the Partition Act, 1893, as well as the Hindu Succession Act, 1956, was not allowed the family property to go into the hands of third parties and that the Courts should endeavour giving share to each of the parties and would not direct the sale of the property or division of the proceeds except when the division of the property cannot be reasonably or conveniently made; that in the instant case, taking into consideration the measurements of the property, which was more than 24,000 sq. ft, it can be put division reasonably and conveniently also; that the property is neither too small nor there are number of shareholders, which would render the division by metes and bounds irrational or inconvenient; that under such circumstances, the court should have rejected the plea of the 1st respondent for sale and ordered division of the property as per the Commissioners report; that it is not correct to state that the property if divided would lose its commercial value and the rights of the parties to get their divided share in the family property when the same is divisible should not be ignored; that the commercial value of the undivided property can neither be a special circumstance justifying the sale of the property nor can outweigh the rights of the parties and the sentimental values attached by them with the family property and that the Commissioner, who was appointed by the Court, has filed a clear report that the subject property is capable of division, by taking into consideration the nature of the property, the number of share holders and the absence of any special circumstance and in such a case, the court should not have ordered for sale of the property, which is against law and equity.