Partitioning Property Through Sale – Understanding the Basics

Every partition suit requires a preliminary decree to be passed wherein the court declares each claimant’s share in the immovable property. But in certain cases, the subject matter of such suit cannot be reasonably divided by metes and bounds. Such situations may arise when the number of claimants is more than the number of shareable parts of the property or the property has been rendered incapable of division owing to its geographical shape or size.

In such circumstances, the property can be divided by way of sale.This means that the court directs the property to be sold at public auction and the sales proceeds of the same are to be distributed among the founders, according to their respective declared shares in the preliminary decree. The process of selling of properties under partitioning, as applied by Indian courts, has been explained in certain judgments of the Supreme Court, Delhi High Court, and Telangana High Court.In the case of Shub Karan Bubna Alias Shub Karan Prasad Bubna v. Sita Saran Bubna And Others, the Supreme Court held that if the property is incapable of proper division, the court may direct the sale thereof and distribution of the proceeds as per the shares declared.

Furthermore, in the case of Ravinder Pal Singh Baweja And Another V. Barjinder Pal Singh Baweja & Ors, the Delhi High Court stated that if the property cannot be divided by metes and bounds, the final decree of partition should be passed for the sale of the property and distribution of the sale proceeds amongst the plaintiffs, as per their respective shares declared in the preliminary decree of partition.It is to be noted that stating the property to be sold does not necessarily mean that all the share holders have to compulsorily participate in the sale.

In Shri Surender Kumar Gupta v. Shri Mahender Kumar Gupta, the Delhi High Court held that if one of the shareholders wishes to exercise the right to buy the property mentioned in the preliminary decree, the court is bound to direct the price of the property to be ascertained and then take a fresh call on the offer of the petitioner to purchase the shares of the other party, after taking into consideration the responses to such offer.

In conclusion, it would be safe to say that the option of selling the property instead of dividing by metes and bounds is available to the court as an alternate solution in disputes concerning partitioning of property. It should, however, be noted that the court is mandated to take into consideration the consent of all the shareholders involved while making a decision in this regard.

References:

Shub Karan Bubna Alias Shub Karan Prasad Bubna v. Sita Saran Bubna And Others– Supreme Court of India– 2009

Ravinder Pal Singh Baweja & Anr V. Barjinder Pal Singh Baweja & Ors– Delhi High Court.

Shri Surender Kumar Gupta v. Shri Mahender Kumar Gupta –Delhi High Court– 2011

M.A. Mujeeb v. Habeeb Alladin And Others –Telangana High Court – 2019

Ganduri Koteshwaramma And Another v. Chakiri Yanadi And Another – Supreme Court.· R. Ramamurthi Iyer v. Raja V. Rajeswara Rao – Supreme Court.