Judgment:
P.R. Borkar, J.
1. These appeals are filed by two defendants being aggrieved by the judgment and decree passed by the IInd Jt. Civil Judge, Senior Division, Ahmednagar, in Special Civil Suit No. 164 of 1992, decided on 13.08.1997, as confirmed by the 4th Adhoc Additional District Judge, Ahmednagar, in Regular Civil Appeal No. 314 of 2001, decided on 04.09.2004. The Trial Court has passed the decree of partition and separate possession and declared that the plaintiff is entitled to get 1/5th share by way of partition and possession in suit property Municipal House No. 7293, bearing C.T.S. No. 3575/15, admeasuring 77 sq.mtr., situated at Mahatma Gandhi Road, Ahmednagar. Enquiry regarding mesne profit was also directed under Order 20 Rule 12 of the Civil Procedure Code.
2. Some of the facts giving rise to these appeals are not disputed at this stage and it is preferable to state them at the outset:
The suit property which is described above is the subject matter of the dispute. One Hastimal Firodiya had taken suit premises on rent. Hastimal Firodiya was survived by five sons viz. appellant - Hukumchand, appellant Kanhaiyalal, deceased plaintiff Vasantlal, Ramesh and Madanlal. M/s. Imarat Company was the original owner. By sale deed dated 02.11.1979 for consideration of Rs. 37,000/- both appellants Hukumchand and Kanhaiyalal, deceased Vasantlal, Ramesh and Madan purchased the property. The sale-deed is at Exh.97. At Exh.52 there is partnership deed dated 22.08.1964, which shows that appellant Hastimal Firodiya and his two sons Vasantlal and Hukumchand had formed a partnership firm under name and style 'M/s. Hastimal Firodiya' for running cosmetic shop. The partnership came into existence on 18th October, 1963. Original plaintiffs are the legal representatives of deceased Vasantlal. In the partnership deed it is stated that the partnership business shall be carried on at Ahmednagar or at other such places as mutually agreed by and between the partners.
3. At page 51 of the record and proceedings of the Trial Court, there is copy of partnership deed dated 14th December, 1982, regarding which there is no dispute and as per said partnership deed, original plaintiff Vasantlal, appellant Hukumchand and their brother Ramesh formed partnership. It is stated that Vasantlal and Hukumchand were carrying on partnership with effect from 30th April, 1981 and Ramesh had agreed to become partner with them with effect from 16th November, 1982 and with consent of both existing partners, Ramesh was added as partner and new fresh deed of partnership was prepared. There is no record to show that between partnership deeds dated 22nd August, 1964 and 14th December, 1982, there was any other partnership deed. So, when the sale-deed dated 1st November, 1979 was executed by Imarat Co. Ltd., in favour of five brothers who were sons of Hastimal Firodiya, partnership firm of original plaintiff Vasantlal and appellant Hukumchand was in existence. It was partnership firm constituted as per partnership deed dated 22nd August, 1964, produced at Exh. 52. It is not disputed that the firm was in actual possession of the suit property and was running shop under name and style M/s. Hastimal Firodiya.
4. It is also not disputed any more that Madanlal sold his share in the suit property in about 1990 in favour of appellant Hukumchand and appellant Kanhaiyalal by registered deed dated 18.05.1990. Madanlal sold his share in the suit property for Rs. 35,000/- and we find entry to that effect in the property card of city survey record, produced on record. By sale-deed dated 09.06.1992 copy of which is at Exh.50, the heirs of partner Ramesh have sold their right, interest in the partnership firm to appellant Hukumchand and appellant Kanhaiyalal for Rs. 1,25,000/-.
5. It is case of original plaintiff Vasantlal that he had 1/5th share in the suit property and as such he is entitled to have partition of the suit property and possession of his share in the suit premises. Therefore, he filed suit for partition and separate possession. Present appellants who were defendant Nos. 1 and 2 filed written statement and stated that plaintiff Vasantlal had retired from the partnership firm on 03.07.1985. At that time he had transferred all rights in the partnership firm, so also in the suit property towards consideration amount of Rs. 30,000/-. Remaining partners of the firm also took over responsibility to repay loans obtained by Vasantlal. Accordingly, documents were executed on 03.07.1965 by Vasantlal and as such plaintiff Vasantlal had no right to claim any share in the suit property.
6. The Trial Court held that legal representatives of plaintiff Vasantlal who are present respondent Nos. 1A to 1D are entitled to 1/5th share in the suit premises. They are also entitled to partition and separate possession and future mesne profit. Accordingly the Trial Court passed the decree. Said decree was confirmed in the appeal by the District Court and as against the same, these Second Appeals are filed.
7. These Second Appeals are admitted on the following substantial questions of law:
(i) Whether the findings of the Trial Court and the District Court are without appreciating Sections 14 and 15 of the Partnership Act and that the property was acquired out of and always treated as partnership firm property?
(ii) Whether the District Court was right in ignoring oral evidence led by the defendants on the ground that since the sale-deed is there in favour of five brothers, he could not consider other evidence in view of Section 91 and 92 of the Evidence Act?
(iii) Whether in the alternative the appellants in the Second Appeals have established that the firm was tenant of M/s. Imarat Company and as such its lease-hold rights continued till today?
8. The learned advocate pointed out that the District Judge has refused to look into other evidence regarding purchase of suit property from M/s. Imarat Company on the ground that since there is sale-deed executed in favour of five brothers, it was not open to consider other evidence which is contrary to the document. Said view is taken in para 8 of the Appellate Court judgment. It is argued before me and rightly in my opinion, that while considering Section 92 of the Evidence Act, the learned Judge ignored proviso (2) and (6). It is also argued that Sections 14 and 15 of the Partnership Act were also not considered. In my opinion point No. (ii) will have to be answered in the affirmative and therefore I consider entire evidence in some detail to ascertain if findings of facts are correct and consistent with principles of law regarding presumption and appreciation of evidence.
9. It may be noted that the certificate of registration of partnership firm produced at Exh.53 which is earliest document shows that the partnership was initially registered on 20th January, 1960 and Hastimal Firodiya and Vasantlal Firodiya (original plaintiff) have been shown to have joined partnership with effect from 1st November, 1959. Both started the firm by name 'H. Firodiya'. It is no more disputed that same firm continuing though some of the partners retired and some joined in the mean time. As the partnership deed Exh.52 shows on 22nd August, 1964, same firm is reconstituted and besides Hastimal and Vasantlal, Hukumchand who was then 23 years of age joined the firm. Admittedly, Ramesh joined the firm on 14th December, 1982, but at that time Hastimal was no more partner and that is clear from partnership deed, copy of which is produced at Exh.51 in the record and proceedings of the Trial Court. It is also not disputed that Kanhaiyalal was also introduced as partner sometime thereafter. As a result except Madanlal, all other four brothers were partners and then one by one some partners retired. It has also come in evidence of Kanhaiyalal in para 14 at Exh.92 that other than suit property, five brothers had no other property. Till 1979 they were residing on the first floor of the suit property. So, above said history clearly shows that Hastimal who was father, initiated the business along with (his son) Vasantlal as his partner in about 1959-60. The ground floor was used as shop premises. The first floor was used for residence. At that time Hastimal was tenant of M/s. Imarat Company. There is nothing to show that the firm as such had taken the premises on lease or paid rent in its name.
10. It can also be gathered from the way in which different brothers joined partnership firm and retired, that business of firm was treated as family business. The learned advocate of the appellants pointed out that in 1960 partnership was first registered. From 1st November, 1959, Hastimal and original plaintiff Vasantlal had started business in partnership. It can be noted that as per partnership deed Exh.52, Vasantlal was of 29 years age in 1964. So, he was about 25 years of age when he joined as partner with his father on 01.11.1959. This family history needs to be considered when we appreciate the sale-deed Exh.97 in favour of five brothers. As per said sale-deed dated 1st November, 1979, occupation of all five brothers was shown as 'trade'. All were residents of Ahmednagar. There is no evidence to show that any of the brother has any other business than the business of the firm. P.W.1 Ajit Vasantlal who deposed on behalf of the plaintiffs in his cross-examination specifically stated that his father was partner of the firm till 1985. He also stated at the end of para 8 of his deposition at Exh.45 that only source of income of his father was 'H. Firodiya' firm. In para 8 of evidence of defendant Kanhaiyalal, who is examined at Exh.92, it is brought on record that only Madan was serving in a bank. All other four brothers were partners of the firm at one time or other and there is nothing to show that said four brothers had any other source of income than the firm.
11. Sections 14 and 15 of the Partnership Act are as follows:
14. The property of the firm - Subject to the contract between the partners, the property of the firm includes all property and rights and interests in property originally brought into the stock of the firm, or acquired, by purchase or otherwise, by or for the firm, or for the purposes and in the course of the business of the firm, and includes also the goodwill of the business.
Unless the contrary intention appears, property and rights and interest in property acquired with money belonging to the firm are deemed to have been acquired for the firm. 15. Application of the property of the firm - Subject to contract between the partners, the property of the firm shall be held and used by the partners exclusively for the purposes of the business.
12. Section 14 lays down that subject to contract between the partners, the property of the firm includes all property and rights and interests in property originally brought into stock of the firm, or acquired by purchase or otherwise, by the firm, or for the purposes and in the course of business of the firm, and includes also the goodwill of the business. Second clause shows that unless contrary intention appears, property and rights and interest in the property acquired with money belonging to the firm are deemed to have been acquired for the firm. So Section 14 raises a presumption. But it is rebuttable presumption.
13. It is argued that when there was no other source of income for four brothers and when it is not case of any one that Madan had contributed from his independent source of service in bank, it will have to be accepted that the suit property was purchased out of money belonging to the firm. It is equally true that the property was purchased and stood in the name of all five brothers. Appellants have admittedly purchased the right and interest and shares of Ramesh and Madan. It is also not disputed that after 1979 onwards when all brothers started living separately at different places, the suit premises was used exclusively for the business of the firm. It may be noted that five brothers are layman. They may not know fine distinction between family business and partnership business particularly when business was started by their father. In the sale-deed (at Exh.96) executed by heirs of Ramesh in favour of present appellants/original defendants, it is mentioned that the suit property was belonging to all five brothers and each including Madanlal had undivided 1/5th share. It is stated that 1/5th undivided share of Madanlal was purchased by present appellant on 18.05.1990. The heirs of Ramesh wanted to sell their portion out of suit property for Rs. 1,25,000/-. This deed does not speak about partnership firm and right, interest and interest therein. Both appellants (original defendants) were parties to this sale-deed. This shows that the suit property was always considered to be joint family property in which each brother had 1/5th share. Of course Vasantlal was not party to this sale-deed Exh.98 and averments may not be binding on the plaintiffs.
14. The city survey record shows that the suit property was entered in the name of all five brothers and then ultimately it remained in the name of only appellants. The names of Vasantlal, Ramesh and Madanlal were deleted by various entries. We find property card issued by City Survey Office at Exh.47. It is also argued before me that no rent was ever paid by the firm to any of the brother including Madan and never any brother objected to the user of the suit premises by the firm eventhough he was yet to become partner or had retired from the partnership. Here the admission of D.W.1 Kanhaiyalal in para 5 of the deposition need consideration. It is admitted that the firm was maintaining accounts and rent was Rs. 23/- per month. It is stated that the rent was paid by the firm and both the appellants (original defendants) were taking 1/2 of the rent. The payment of rent was not mentioned in the accounts of the firm. These assertions show that the firm was not owner of the property. It is an attempt to show that the firm has lease hold rights. Non-payment of rent by the firm to the brothers who were not partners and the fact that no entries were ever made about payment of rent in the accounts of firm clearly shows that the firm was never treated as tenant of five brothers. It is argued before me that the property was brought into stock of the firm and acquired or purchased for the purpose of business of the firm. But we cannot gather such intention either from the sale-deed in favour of five brothers (out of which Madan was never partner) or the sale-deed by heirs of Ramesh in favour of present appellants. So, mere non-payment of rent by the firm or absence of demand of such rent by any of the brothers would not confer lease-hold rights on the firm. At the same time we do not find intention on the part of any of the brothers to treat the suit property as property of the firm, particularly this is clear from the sale-deed executed by the heirs of Ramesh, which is produced at Exh.96.
15. If there was intention to purchase the property for and on behalf of partnership firm in that case the purchase would have been in the name of partners of the firm as it existed then and not in the name of all five brothers. It is true that as disclosed in the sale-deed Exh.97 itself the vendor M/s. Imarat Company had decided to sell properties to the tenants in preference. However, in the sale-deed it is specifically stated that when the property was put on sale, five brothers approached the company and offered to purchase it in writing for Rs. 37000/- and the sale committee approved the proposal and the board of company gave permission. Accordingly agreement of sale was executed on 16.09.1975. It is further stated that as per record of the company the property was given on lease to Hastimal Dhanraj Firodiya, so, purchaser should take possession directly from Hastimal. This recital in the sale-deed is very important. It shows that Hastimal Firodiya was tenant in personal capacity and he was continued to be shown as tenant till date of sale-deed Exh.97. Firm 'H. Firodiya' was not tenant as per record of the company, and therefore the purchasers were asked to take possession directly from Hastimal Dhanraj Firodiya. This settles two things that 'H. Firodiya' firm was not tenant of the suit property when the property was purchased and secondly that it had not purchased the property, otherwise the application would have been by the partners of the firm for purchasing the property in their name or in the name of firm stating that the firm was tenant. In such case, sale would have been to 'H. Firydiya' firm or in the names of its then partners.
16. Here it should be remembered that the property was used for residence also. As stated earlier there is admission by Kanhaiyalal that till 1979 the family was residing in the suit property. The sale-deed Exh.97 is of 01.11.1979. In same para 14 Kanhaiyalal admitted that in 1979 he went to reside in Maliwada. Prior to 1979 Vasantlal shifted in Manik Chowk. Since five years prior to his deposition on 19.07.1997 appellant Hukumchand started residing in Agarkar Mala. Ramesh went to reside in Topkhana area in the year 1976 and prior to that he was residing on the first floor of suit property. Since prior to 1979 Madanlal was residing in M.I.D.C. area. Thus, it appears that residences of all five brothers were separate when alleged purchase had taken place. All above said discussion clearly indicate that there is sufficient evidence to hold that the suit property was though used and enjoyed by the partnership firm for carrying out business till 1979, the family or its members were using first floor for residence.
17. It is not case of partnership firm purchasing the property in its name. It may be noted that five brothers still constituted joint family and though there is no evidence to show that family had any source of income other than the partnership firm business, it does not appear that the partners or their brothers treated the property as owned by the partnership firm. Rather it was treated as property owned by the joint family consisting of five brothers and that is why 1/5th share of Madanlal was accepted and his name was entered into city survey record. Subsequently his 1/5th share was purchased by the present appellants.
18. It is argued before this Court that Kanhaiyalal relinquished his share in the suit property by documents produced at Exh. 103 and 104. There is also 'Kararnama' executed and produced at Exh.98. The execution of these documents by Vasantlal is denied by the heirs of Vasantlal. According to them documents are obtained by fraud. In para 4 of the plaint it is stated that though the appellants were owners of 4/5 share and plaintiff Vasantlal was owner of 1/5th share, the entire property was enjoyed the appellants. The appellants had taken possession of portion of first floor from heirs of Ramesh by the sale-deed. On the ground floor there is shop by name 'H. Firodiya'. Plaintiff Vasantlal was partner thereof, but the appellants by misrepresentation and fraud and taking disadvantage of physical and mental disability of Vasantlal, obtained agreement about relinquishing his share in the shop premises regarding which plaintiff Vasantlal was going to take separate action. In the written statement it is specifically stated that the suit property was exclusively used for commercial purpose by 'H. Firodiya' firm. Vasantlal who was partner of the firm had taken loans and it was difficult for him to repay the amounts to various creditors. His sons were well settled and they were residing separately from Vasantlal. Vasantlal executed agreement in favour of firm declaring his intention to retire from the firm and executed retirement deed on 03.07.1985. Rs. 30,000/- were paid to him and the appellants accepted to repay the loans to creditors of Vasantlal. Vasantlal retired of his own from the partnership and he is now claiming right to property.
19. It is not disputed by the plaintiffs that Vasantlal had retired in about 1985. We get specific admission to that effect in the evidence of P.W.1 - Ajit Firodiya examined at Exh.45. He stated that his father was partner of the firm till 1985. He, however, did not make any enquiry why and how his father was retired and which rights and liabilities were relinquished. He further admitted in para 12 that in 1985 his father retired from 'H. Firodiya' firm.
20. In order to prove that Vasantlal has also relinquished or given up his share from the suit property, there is evidence of D.W.1 Kanhaiyalal Firodiya at Exh.82. He stated in para 3 that Vasantlal had executed receipts for loans obtained by him in favour of different persons. He produced same documents at Exh.93 to 95. Due to loans obtained by Vasantlal, the dispute started. The loans were repaid by the partners of the firm. At that time the accounts were settled and Vasantlal was told that the amount of loans would be paid by the firm. Vasantlal relinquished his entire right as partner and in the property of the firm. He executed document in presence of Harakchand Firodiya and Fulchand Shingvi. Said document was kept in the custody of Harakchand and said document is at Exh.88/2. It bears signatures of Vasant, Hukumchand, Ramesh and Harakchand. The document which was referred to by the witness was not original document. He said that original document was in the custody of Harakchand. The witness Kanhaiyalal did not identify signature of deceased Vasantlal on the document which is produced at Exh.98. Exh.98 does not bear signature of Harakchand Firodiya. There is only signature of Fulchand Shingvi. So, document at Exh.98 is not duly proved to have been executed by Kanhaiyalal. In para 10 in the cross-examination, D.W.1 Kanhaiyalal was asked about the document which is given Exh.98. The question was regarding retirement deed and it was admitted that retirement deed did not disclose share of Vasantlal in the disputed property. Then Kanhaiyalal said that the contents of para 6 of the retirement deed were correct and so the document was exhibited at Exh.98. So the document Exh.98 is not accepted in evidence not because it was proved to be executed by original plaintiff Vasantlal, but because contents thereof from para 6 were referred to in the cross-examination and it is brought on record that said document in para 6 did not state about the sale of share in the suit property.
21. Another witness examined is Jaykumar Fulchand Shingvi at Exh.102. He is son of Fulchand Shingvi who signed on certain documents including Exh.98 referred to above. This witness said that his father died in 1989. He proved his father's signatures on documents Exh.103, 104 and 98. The objection was taken by advocate of the plaintiff to give exhibits. Thus, Exhs. 103 and 104 are not proved to be executed by deceased Vasantlal. They were exhibited merely because signatures of Fulchand (who was witness on the documents) were proved by his son. The witness admitted in cross-examination that said documents referred to him were not signed in his presence. He had no knowledge regarding the same. Thus, documents Exhs. 98, 103 and 104 are not duly proved. They are not proved to have been signed by Vasantlal. In my opinion such documents were rightly ignored from consideration as not admissible in evidence in absence of their proof. Even if we consider Exh.98, it does not show that Vasantlal had sold his 1/5th share from the suit property.
22. In view of above discussion, in my opinion, the appellants have not proved their defence that Vasantlal had sold or given up his 1/5th share in the suit property. Admittedly, no registered document is produced on record.
23. The Trial Court and the First Appellate Court considered certain circumstances to show that the documents produced at Exh.98, 103 and 104 are of spurious nature. Exh.104 which is said to be relinquishment deed, is alleged to have been executed by original plaintiff Vasantlal Firodiya in favour of his four brothers and therein he has given up his 1/5th share in the partnership and also in the suit property. It is argued that admittedly Madanlal was not partner of the firm at any time and still this relinquishment deed also is in favour of Madanlal. Reference was made to sale-deed Exh.50, which was sale-deed executed by heirs of Ramesh in favour of present appellants. Though this document is dated 09.06.1992, it does not refer to sale or relinquishment of 1/5th share in the suit property by Vasantlal. In para 2 of the document it is stated that 'In the suit property there were and there are shares of appellants, Vasantlal, Madanlal and Ramesh. Share of Madanlal to the extent of 1/5 the share was purchased on 18.05.1990.' So at least legal representatives of Ramesh were not aware about sale or relinquishment of 1/5th share by Vasantlal in favour of appellants nor the appellants asked for including said fact in the document.
24. The plaintiffs examined witness Anant Gandhe at Exh.72. He was employee of Central Bank of India and documents produced and proved by this witness show that on 22.07.1987 original plaintiff Vasantlal, both appellants, Ramesh and Madanlal had executed a mortgage deed in favour of the bank. It is argued that if deceased Vasantlal had relinquished his share on 03.07.1985 by document at Exh.98, 103 and 104, there was no occasion for Vasantlal to sign the mortgage deed on 22.07.1987 or represent the bank that he was still co-owner. In city survey record as property card Exh.47 shows heirs of Ramesh were brought on record. If the property was of the partnership firm, there was no occasion to bring legal representatives of Ramesh on record. Same is case regarding bringing legal representatives of plaintiff Vasant on record of the city survey on 30.09.1993.
25. The evidence clearly indicated that the partnership firm was neither owner nor tenant of the suit premises, though it has been using premises belonging to its partners and their brothers without any contract and without any rent. It is mainly because parties treated firm business as if it is their family business. This is natural in the facts and circumstances of the case.
26. Civil proceedings are decided on preponderence of probabilities. Considering totality of the circumstances, in my opinion, the Trial Court and the First Appellate Court did not commit error in decreeing the suit. The findings of facts recorded by them are reasonable and based on evidence on record. Those findings, which are concurrent, cannot be said to be perverse or illegal. Those cannot be disturbed in Second Appeals.
27. The learned advocates for the appellants cited certain authorities. The Trial Court and the First Appellate Court also held that relinquishment deed is not registered. In-fact document at Exh.98, 103 and 104 are not proved to have been executed by deceased Vasantlal and therefore it is not necessary to consider case law regarding requirement of registration of those documents.
28. The first case cited is Addanki Narayanappa and Anr. v. Bhaskara Krishnappa (dead) and Ors. : [1966]3SCR400 . The learned advocate for the appellant referred to paras 2 and 5 and argued that interest in partnership firm is movable property. Their Lordships were considering the interest of partner in partnership property during subsistence of partnership and after its dissolution. It is observed that during the subsistence of the partnership, no partner can deal with any portion of the property as his own. Nor can he assign his interest in a specific item of the partnership property to anyone. The whole concept of partnership is to embark upon a joint venture and for that purpose to bring in as capital money or even property including immovable property. Once that is done whatever is brought in would cease to be the exclusive property of the person who brought it in. It would be the trading asset of the partnership in which all the partners would have interest in proportion to their share in the joint venture of the business of partnership. It is observed that the interest of the partners of a family in the partnership assets was movable property and the document evidencing the relinquishment of that interest was not compulsorily registrable.
29. The next case cited is Commissioner of Income Tax, West Bengal, Calcutta v. Juggilal Kamalapat : [1967]63ITR292(SC) . In that case it is held that where partners relinquish their individual interest in movable and immovable assets of partnership in favour new partners by a deed of relinquishment, no registration of such deed is required. It is observed that deed of relinquishment is in the nature of deed of gift, where the various properties dealt with are always separable, and the invalidity of the deed of gift in respect of one item cannot affect its validity in respect of another.
30. The third case cited is Gangadhar Madhavrao Bidwai (dead) by Lrs. v. Hanmantrao Vyankatrao Mungale 1995 (3) Bom.C.R. 447. In that case it is held that deed of dissolution of partnership firm does not require registration.
31. In the case of S.V. Chandra Pandian and Anr. v. S.V. Sivalinga Nadar and Ors. : [1995]212ITR592(SC) it is laid down that on dissolution of partnership, distribution of residue among partners after settlement of accounts in terms of Section 48 of Partnership Act is to be treated as distribution of moveable property and does not result in partition, transfer or extinguishment of interest so as to attract Section 17 of the Registration Act.
32. The learned advocate for the appellant argued in the alternative that the appellants are owners of 4/5th share. The property is 14 ft in width x 55 ft in length. It is now divided into two parts of 7 ft width including party wall. Admittedly, there are access from front and back side. The learned advocate for the plaintiffs argued that during execution proceedings of partition, a Commissioner was appointed and the Commissioner suggested allotting rear 1/5th share to the plaintiffs' share and the advocate for the plaintiffs said that the plaintiffs are happy with the said arrangement. In the light of said circumstances the advocate for the appellant cited case of Punjab National Bank v. Sahujain Charitable Society and Ors. : AIR2007SC2651 . In that case it is laid down that in partition suit where partition by metes and bounds is not possible, the properties can be directed to be sold in public auction. The plaintiff the larger share holder in possession of a significant portion of the property held entitled to purchase the rights of the other sharers rather than permitting an assignee from some of the sharers subsequent to the preliminary decree to purchase the property merely because it is in a position to offer a higher price and has come forward with a belated offer.
33. The learned advocate also referred to Section 2 of the Partition Act, 1983, which is as follows:
2. Power to Court to order sale instead of division in partition suits - Whenever in any suit for partition in which, if instituted prior to the commencement of this Act, a decree for partition might have been made, it appears to the Court that, by reason of the nature of the property to which the suit relates, or of the number of the shareholders therein, or of any other special circumstance, a division of the property cannot reasonably or conveniently be made, and that a sale of the property and distribution of the proceeds would be more beneficial for all the shareholders the Court may, if it thinks fit, on the request of any such shareholders the Court may, if it thinks fit, on the request of any such shareholders interested individually or collectively to the extent of one moiety or upwards, direct a sale of the property and a distribution of the proceeds.
34. The learned advocate of appellant Shri S.P. Deshmukh stated that the partition suggested by Court Commissioner is impractical and would harm the interest of all parties. He stated that appellants are ready to purchase 1/5th share of plaintiff/respondents at market price. They would pay price as determined by Government Valuer. So, sale of 1/5th share be ordered.
35. In my opinion how partition should take place is a matter to be considered in final decree proceedings and same cannot be considered at the time of confirming the preliminary decree. It is made clear that appellants are entitled to make their submissions regarding actually effecting partition or resorting to Section 2 of the Partition Act or ratio in Punjab National Bank (Supra) during final decree proceedings.
36. The learned advocate for the respondents cited case of Civil Appeal No. 742 of 2001 (Narayanan Rajendran and Anr. v. Lekshmy Sarojini and Ors.), decided by Supreme Court by judgment dated 12.02.2009. Internet copy of same is placed on record. In that case Their Lordships referred to case of Gurdev Kaur and Ors. v. Kaki and Ors. : AIR2006SC1975 and considered catena of case law and history of Section 100 of Code of Civil Procedure which require that in Second Appeal, only substantial questions of law should be addressed and Court should not interfere with the findings of fact merely because another view is possible. This is more so where there are concurrent findings of fact based on evidence.
37. Considering the substantial questions of law which are raised before me I felt it necessary to consider in detail all the aspects which are argued before me. In the result I confirm the decree passed in favour of the plaintiff and dismiss these appeals.
38. In the result, both appeals are dismissed. Parties to bear their own costs.