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Case Title: Mohd. Mujthaba Ali and another v. Mohd. Murtuza Ali and Ors 

Case No.: CIVIL REVISION PETITION No.3099 of 2023 

Dated: March 22, 2024 

Quorum: Justice P Sam Koshy 

 

FACTS OF THE CASE:  

The Court of the IX Additional Court Chief Judge, City Civil Court, Hyderabad, issued an order on October 4, 2023, which has been challenged by the petitioners in their current Civil Revision Petition, filed under Article 227 of the Indian Constitution.  

Briefly stated, the plaintiff filed a case seeking partition with regard to the schedule A and schedule B properties. This information is crucial to the decision of the current Civil Revision Petition. 

A preliminary decree was passed allocating 1/8th share in schedule A and schedule B property in favour of the plaintiff as well as defendants, and 1/16th share each to defendants. The forementioned suit was decreed in favour of the plaintiff via judgement and decree dated June 15, 2016.  

Defendants Nos. 6 and 8, who were unsatisfied with the preliminary decree, filed an appeal with this High Court, which was dismissed on June 10, 2022, upholding the ruling and decree made by the lower court. An I.A. was filed following the appeal’s dismissal.  

Meanwhile, in accordance with I.A.No. 1623 of 2016, the final decree was passed. During this process, the Court below accepted the Advocate Commissioner’s report and held that the Suit schedule A and B properties were not divisible according to the preliminary decree’s terms and bounds. As a result, it was recommended that the property be put up for public auction, with the proceeds from the sale being divided among all parties.  

In order to sell the Suit schedule A and B properties and divide the sale proceeds among the parties in accordance with those terms, a request for the appointment of an Advocate Commissioner has been made under Section 2 of the Partition Act read with Section 75 of the CPC. In opposition to this I.A., which is permitted, the current Civil Revision Petition has been submitted.  

 

CONTENTIONS OF THE PETITIONER: 

The petitioners’ learned senior counsel contended that the lower court overlooked the fact that the petitioners should have been granted pre-emption rights and authorization to buy out other coevent owners. On behalf of the defendants, who have likewise been awarded an equal share, or one-eighth of the share in the Suit schedule property, as has been awarded to the plaintiff, the instant Civil Revision Petition has been submitted.  

Acquired Knowledge For the past more than seventy (70) years, the petitioners’ senior counsel claimed that the plaintiff’s family as well as the petitioners’ own the property listed in the suit schedule. It was further argued that one of the Suit schedule’s floors Respondent built a property with his own money, and the court procedures clearly demonstrate this. Additionally, given that it was in their possession. 

The learned Senior Counsel for the petitioners further contended that they were prepared to pay a figure of Rs. 8,00,00,000/-far more than the property’s market worth and that they had sought for the right of pre-emption in their favour. 

The petitioners, who are the defendants in the original suit, are prepared to pay an amount of Rs. 8,00,000/- for the said property while claiming a right of pre-emption in the suit schedule ‘A’ property, according to the learned senior counsel for the petitioners. The respondent himself has quoted the value of schedule ‘A’ property at Rs. 4,00,00,000/-. 

That being said, of the Rs. 8,00,00,000/-that the petitioners have determined to be the value of the schedule ‘A’ property that they are willing to donate for the subject property, 1/8th of the share would be worth Rs. 1,87,50,000/-to each of the petitioners, or Rs. 3,75,00,000/-between the two. Because of this, the petitioners in this case are prepared to deposit with the lower court an amount of Rs. 4,25,00,000, which is the amount remaining after deducting Rs. 3,75,00,000, which represents their portion of the Suit schedule A property. 

The petitioners have further declared that they are prepared to give up their claims to the Suit schedule B property in the event that the aforementioned proposal is approved. Respondent, party-in-person, on the other hand, contends that the plan put forth by the petitioners does not merit acceptance and opposes the Civil Revision Petition. As per his statement, when the property is auctioned off, the appointment property values can exceed the amount even the petitioners have specified, which is Rs. 8,00,00,000/-. The respondent would likewise receive a larger portion of the property in the suit schedule under the aforementioned conditions. 

 

CONTENTIONS OF THE RESPONDENT: 

The other respondent, opposed the Civil Revision Petition on the grounds that the decree could not be executed because of the current Civil Revision Petition and the interim order obtained therein, despite the fact that respondents had filed their counter-affidavit.  

On the other hand, the learned counsel representing the respondents claims that there doesn’t appear to be any disagreement on the side of the current petitioners regarding the sale of the Suit schedule B property at auction. Each of the parties to the lawsuit would then get the portion to which they are each lawfully entitled, and at least that portion of the decree would be put into effect. It was further contended that the said property was on the main road. 

It is evident that respondents argued that, having lived in the aforementioned premises for more than seven (07) decades, they have sentimental attachments to the residence. They therefore do not wish to sell the subject property or give up the aforementioned property. Although the plaintiff has stated that the Suit schedule A property is valued at Rs. 4,00,00,000/- in the petition submitted to the lower court according to Section 2 of the Partition Act.  

Finally, the respondents contended that after deducting their respective shares of the property, which are worth a combined total of Rs. 3,75,00,000/- from the total amount they have offered, the petitioners, who also own a share in the said property, have quoted a price of Rs. 8,00,00,000/- for the said property. They have also offered to pay an additional amount of Rs. 4,25,00,000/-. The present Civil Revision Petition has been filed in opposition to this application of pre-emption, which the lower court denied. 

 

LEGAL PROVISIONS: 

• Section 75 of CPC- Power of Court to issue commissions. The Court may issue a commission to examine any individual, conduct a local investigation, review or amend accounts, or divide property, subject to any restrictions and limitations that may be specified.  
• Section 2 of the Partition Act- Power to court to order sale instead of division in partition suits. In any partition suit where a decree for partition might have been made if the suit had been filed before the Act’s passage, and it appears to the court that a sale of the property and distribution of the proceeds would benefit all shareholders more than dividing the property due to the nature of the properly to which the suit relates, the number of shareholders involved, or some other unique circumstance, the court may, upon request from any of these shareholders interested either individually or collectively to the extent of one moiety or upwards, order a sale of the property and a distribution of the proceeds.  
• S.3 of the Partition Act- Procedure when sharer undertakes to buy. If a shareholder requests permission to purchase the share of the party seeking a sale, the court will determine the value of the share in any case where it is requested to do so under the previous section. It will also offer to sell the shares to the shareholder at the determined price and may issue any necessary and appropriate directions in this regard. 

 

COURT’S ANALYSIS AND JUDGMENT: 

Respondent Number One was primarily against the petitioners’ plan, citing the Advocate Commissioner’s observation that the property in question could not be divided and allocated among the shareholders after the commissioner had visited the location. The only practical means for the respondent to obtain his portion of the property, as the partition was impractical, was through an auction, which might bring in the highest price while taking into account the property’s current worth.  

The contested order was passed after hearing the arguments made by each of the solicitors representing the separate parties as well as the party in person. The petitioners submitted the aforementioned I.A. in accordance with Section 2 of the Partition Act as well as Section 75 of the CPC, requesting the appointment of an Advocate Commissioner and the sale of the Suit category A and B properties through public auction. On June 15, 2016, the preliminary decree in the aforementioned O.S. No. 19 of 2003 was approved.  

The property was to be divided in accordance with the decree, as stated in this order’s paragraph. Following the appointment of an Advocate Commissioner, who submitted his report on June 30, 2017, it was determined that neither the schedule A nor schedule B properties could be divided in accordance with the preliminary decree with metes and bounds.  

The aforementioned portion of the Civil Revision Petition was accepted. The Suit Schedule A and B properties were to be placed up for auction, and the two petitioners in this case were to be given access to the top bidder’s price quote so they could indicate their intent to buy the property at that amount.  

 

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Judgment reviewed by Riddhi S. Bhora. 

Click to view judgment.