Hyderabad: In an interesting finding, the Hyderabad High Court held that the civil court has power to order the sale of property when symmetric division of a property is not possible, without truncating the utility of the portion allotted to one or more sharers and without defiling structural ambience and aesthetic beauty.
The High Court observed that in cases where division of the property cannot reasonably or conveniently be made, a sale of the property and distribution of the proceeds would be more beneficial for all the shareholders.
In a recent appeal, the High Court noted that a civil court granted a decree for vertical division of 600.41-square yard house when two brothers approached it for partition of their ancestral house. The vertical division of the hou-se was opposed by one of the brothers, who moved the High Court urging horizontal division.
The High Court, after perusing the structural plan of the house, felt that horizontal division may at best produce an on-paper division but not an effective partition and the vertical division was also not feasible.
The Court found that since the plaint schedule property was not amenable for either vertical or horizontal division, the only alternative was to follow a more pragmatic method.
The Court noted that when a suit property was incapable of ‘division in specie,’ there was no alternative but to resort to the process called Owelty, according to which the rights and interests of the parties in the property will be separated, only by allowing one of them to retain the whole of the suit property on payment of ‘just compensation’ to the other.
If none of the share holders came forward to own the property by paying compensation to other share holders, the last resort would be to order the auction of the property.
Justice U Durga Prasad Rao, while passing the final verdict on the appeal, directed the civil court to ascertain the market value of the property with the assistance of a qualified Civil Engineer and after hearing both parties, taking the value fixed by it as ‘upset price’, conduct an auction among both the brothers.
The judge said if the parties were not agreeable to this auction, then the Court shall after fixing the upset price, conduct a public auction of the ‘schedule property’ and distribute the sale proceeds among both brothers as per their share.
City court faults lower court in land split case
The Hyderabad High Court has found fault with the lower court in passing a decree by accepting the report of the court commissioner without considering all aspects of possible division of the property.
The High Court noted that the vertical bifurcation made by the Comm-issioner and approved by the lower court was also beset with many incongruities, evident from th-e reports of the Engineer and Commissioner themselves. Justice U. Durga Prasad Rao said, “This Court, after giving anxious consideration to the en-gineer’s report, commissioner’s report and final decree passed by the lower court, is of the firm view that vertical division made by the engineer and approved by the commissioner and consequently by the lower court, is quite eccentric and lopsided, resulting in loss and injustice to the appellant.”
While ordering the lower court to auction the property, the judge relied on the findings of Chief Justice K. Subba Rao in a case in the year 1958 wh-ere he observed, “In cases not covered by Sections 2 and 3 of the Partition Act, the power of the Court to partition property by any equitable me-thod is not affected by the said Act.”
