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2008 (1) KLO 23 (DB)
IN THE HIGH COURT OF KARNATAKA
Chidananda Ullal and H.N. Nagamohan Das, JJ.
RFA No. 2443 of 2006
Rukmini and Others Appellants
Vs.
V. Uday Kumar and Others - Respondents
Decided on 31-8-2007
(B) Code of Civil Procedure, 1908 - Order 7, Rule 1 - Particulars under - A petition to draw final decree need not contain - A petition/application accompanied by preliminary decree is sufficient to draw a final decree.
(C) Code of Civil Procedure, 1908 - Order 8, Rule 1 - Written statement - What is not - A petition for drawing final decree is not.
(D) Code of Civil Procedure, 1908 - Order 20, Rule 18 - Petition/application under - Maintainability - Party to preliminary decree - Is entitled to maintain a petition/application under, in final decree proceedings - Contents of such application/petition.
Held: Order 20 Rule 18 specifies that where the Court passes a decree for partition of property or for the separate possession of shares of the parties then the Court may pass a preliminary decree declaring the rights of the parties interested in the property and hence the Court can further direct partition or separation to be made by metes and bounds in terms of such declaration as per the provisions of Section 54 or under Order 26 Rule 13 of CPC. Let apart the final decree proceedings being continuation of the suit for partition, the partition suit in law is deemed to be pending until a final decree is passed by the Court. A party to the preliminary decree is therefore entitled to file petition/application under Order 20 Rule 18 CPC to draw the final decree in what is commonly known as Final Decree Proceedings. A petition/application to draw final decree is not a plaint and need not contain the material facts as specified under Order 7 Rule 1 of CPC. Further Order 20 Rule 18 CPC do not specify as to what are the particulars to be mentioned in a petition/application to draw the final decree. Therefore a petition/application accompanied by preliminary decree passed in the suit is sufficient to draw a final decree. (Para 14)
(E) Code of Civil Procedure, 1908 - Order 24, Rule 13 - Jurisdiction of court - Suit for partition - Decreed - Property found not partitionable - Court ordering sale upon an application of a party - Jurisdiction.
Held: The final decree proceedings are continuation of the suit. Final decree proceedings is a stage in continuation of the suit for partition. The preliminary decree declares and determines the shares of parties. Actual division of the properties, putting the parties in separate possession of their shares, adjustment of equities, impartibility of the suit property, sale of property and all other disputes have to be settled in final decree proceedings. The final decree Court is competent even to determine the interse partition among the defendants in which the plaintiffs have no share. (Para 19)
(F) Code of Civil Procedure, 1908 - Order 26, Rule 13 - Multiple preliminary decrees - Passing of - Whether permissible.
(G) Code of Civil Procedure, 1908 - Section 54 - Jurisdiction of court - Suit for partition - Decreed - Property found not partitionable - Court ordering sale upon an application of a party - Jurisdiction.
(H) Code of Civil Procedure - Order 26, Rule 13 - Suit for partition - Court Commissioner finding that property was indivisible - Court having no power to order sale - The gap and void in law - How filled up.
Held: A preliminary decree as the court declares the rights and the liabilities of the parties and after passing of preliminary decree for partition, declaring the rights of several parties interested in the property, the final decree proceedings will start by filing a petition/application under Order 20 Rule 18 CPC by any of the parties to the preliminary decree; Then the final decree Court shall proceed to divide and separate the shares as specified either under Section 54 or under Order 26 Rule 13 and 14 CPC. In the event of court Commissioner under Order 26 Rule 13 CPC submits a report stating that the schedule property is not partitionable, then in that event there was no provision empowering the court to sell the schedule property against the wishes of the parties to the suit. The court has no power to sell the property even if the circumstances necessitate. Thus there is a gap and void in law. This gap and void in law came to be filled by enacting Section 2 and 3 of the Partition Act. (Para 22)
(I) Code of Civil Procedure, 1908 - Order 26, Rule 13 - Sale of property - Suit for partition - Order as to sale - Pre-requirement.
(J) Code of Civil Procedure, 1908 - Order 21 - Final decree proceedings - Nature of - Are not execution proceedings - Suit for partition - Adjudication of claims and following of procedure under Order 21 - Would not arise.
Held: The final decree proceedings are not execution proceedings under Order 21 CPC. The question of adjudicating the claim of legal representatives of defendant No.5 and following procedure under Order 21 CPC will not arise. The plaintiffs in the affidavit filed in support of the application under Section 2 of the Partition Act stated that the prevailing market rate of the schedule property as Rs.3,000/ - per square feet. The Court Commissioner sold the schedule property for more than Rs. 3,000/- per sq ft. It is not the case of the legal representatives of defendant No.5 that the schedule property could have fetched a higher value. Now the auction purchaser deposited the entire bid amount of Rs.1,60,10,000/-. The legal representatives of defendant No.5 are residing in a portion of schedule property and deriving rents from other portions. The intention of legal representatives of defendant No.5 is to drag on the proceedings. (Para 30)
(K) Partition Act, 1893 - Preamble - Object of the Act - Stated.
Held: That section, however, only authorises the court to divide the property, and in some exceptional cases where an equal division is not practicable to award a money compensation for the purpose of equalizing the value of the shares. But as the law now stands, the Court must give a share to each of the parties and cannot direct a sale and division of the proceeds in any case whatever. Instances, however, occasionally occur where there are inseparable practical difficulties in the way of making an equal division, and in such cases the Court is either powerless to give effect to its decree or is driven to all kinds of shifts and expedients in order to do so. Such difficulties are by no means of very rare occurrence although in many cases where the parties are properly advised they generally agree to some mutual arrangement, and thus relieve the court from embarrassment. It is proposed in the present Bill to supply this defect in the law by giving the court, under proper safeguards, a discretionary authority to direct a sale where a partition cannot reasonably be made and a sale would, in the opinion of the court, be more beneficial for the parties. But, having regard to the strong attachment of the people in this country to their landed possession, it is proposed to make the consent of parties interested at least to the extent of moiety in the property a condition precedent to the exercise by the court of this new power. In order at the same time to prevent any oppressive exercise of this privilege, it is proposed to give such of the shareholders as do not desire a sale the right to buy the others out at a valuation to be determined by the court. (Para 22)
(L) Partition Act, 1893 - Sections 2 and 3 - Indivisibility of property - Subject matter of partition suit if found indivisible - Sections 2 and 3 steps in to resolve controversy - If a given case is not covered by these provisions also, then court has discretionary power to adopt the equitable method of owelty.
(M) Partition Act, 1893 - Section 2 - Sale of property in a partition suit - Findings to be recorded by court before passing an order as to.
(N) Partition - Suit for - Is deemed to be pending until a final decree is passed by court.
Nagamohan Das, H. N., J
In this appeal the appellants have called in question the order dated 1.4.2006 in FDP No.10007/1994 passed by the Addl.City Civil Judge, Mayohall, Bangalore City.
2. The subject matter of the litigation is property bearing No.155/B situated in the compound of premises No.1, Wheeler Road, Civil Station, Bangalore measuring in all 5600 Sq.ft. (for short ‘the schedule property’). The appellants and respondents are relatives except respondent No.23. The family tree is as under:
G. V. Balakrishna (deceased)
Pillama @ Jayamma (deceased) Nagamma (deceased)
First wife Second wife (Deft. No.1)
Venkateshalu Pillamma MuniratnamNaidu Devaraj Yatiraj Jayaram NarayanMurthy
(Deceased (Deceased (Deceased Deft.2 Deft.5 Deft. 4 Deft. 3
by LRs) by LRs) by LRs) (Deceased (Deceased
by LRs) by LRs)
(——————————————-— Plaintiffs ———————————————————)
3. The appellants in this appeal are the children of defendant No.5 and respondents are the plaintiffs and other defendants before the Trial Court and respondent No.23 is the auction purchaser. In this judgment the parties are referred to their status before the Trial Court.
4. Plaintiffs filed O.S.No.245/1980 later numbered as O.S. No. 8471/1980 against the defendants for partition and separate possession of their 3/8th share in the schedule property. The Trial Court decreed O.S.No. 8471/80 vide judgement dated 31.7.1993 declaring that the plaintiffs together are entitled for 3/7th share in the entire schedule property. The defendants being aggrieved by the Judgment and Decree of the Trial Court filed RFA No.381/1993 on the file of this court. This court vide Judgment dated 4.7.1995 partly allowed the appeal holding that G.V. Balakrishna and his second wife Nagamma are the Co-owners having one half share in the schedule property. It is further held that the plaintiffs are entitled for 3/7th share in one half of the property of G.V. Balakrishna and not the entire property. The operative portion reads as under:
“Having regard to the aforesaid position the appeal partially succeeds. The decree passed by the learned trial Judge is modified to the extent that while the apportionment of 3/7 share to the plaintiffs is upheld, it is in respect of one-half of the property of deceased Balakrishna and not the entire property. Subject to this modification, the rest of the decree stands confirmed. The appeal accordingly stands disposed of. In the circumstances of the case, there shall be no order as to cost. “
5. Subsequent to the preliminary decree in O.S.No.8471/80, the plaintiffs filed FDP No.10007/94 to draw the final decree proceedings and the same was pending on the file of City Civil Court (CH 20). The further proceedings in this FDP No.10007/94 were stayed during the pendency of RFA No.381/93. Subsequent to disposal of RFA 381/93, defendant No.2 filed FDP No.60/97 to draw the final decree proceedings and to put him in separate possession of his share in the schedule property. As per notification bearing No.41/2005 dated 14.6.2005 FDP No. 10007/94 and FDP No.60/1997 were transferred to City Civil Court, Court Hall No.20.
6. In FDP No.60/97 a Court Commissioner was appointed on 30.11.2000. The Court Commissioner submitted a report on 30.08.2001 stating that it is not feasible to divide the schedule property in terms of the modified decree in RFA 381/93. Some of the defendants filed objections to the Commissioner report opposing the same and also opposed for sale of schedule property. The legal representatives of defendant No.5 filed their claim statement and opposed the sale of schedule property.
7. When the matter stood at that stage the plaintiffs filed an application under Section 2 of the Partition Act on 1.4.2006 for sale of schedule property in a public auction and to distribute the sale proceeds on prorata basis. On that day all the defendants except the legal representatives of defendant No.5 submitted that they have no objection for allowing the plaintiffs application
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