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Karnataka High Court
Judges : H.N.NAGAMOHAN DAS
JANARDHAN PRABHU - Appellant
Versus
GANAPATHI PRABHU - Respondent
Writ Petition 4598 Of 2007
Decided On : 08/17/2007
Advocates Appeared :
K.M.NATARAJ, Kum.Sandhya Rao, Sampat Anand Shetty
Cases Referred: AIR 1973 SC 643; AIR 1978 SC 845.
Code of Civil Procedure, 1908 - Section 54, Order 26, Rules 13 and 14 - Partition - Final decree proceedings - Procedure. [H.N. Nagamohan Das, J]: Now the only question is, whether the trial Court is justified in rejecting the claim of petitoner to buy the shares of respondents. It is settled position of law that in a reliminary decree there will be a declaration and determination of the share of parties. but actual division and separation of property, handing over physical possession and all toher equities which required determination and adjustment among the shares are to be decided in the final decree paroceddings. Ina petiton/application under Order 20 Rule 18 CPC for final decree the Court shall divide and separate the shares in terms of preliminary decree under Section 54 or under Order 26 Rule 13 and 14 CPC. if it is not practicable to divide the property in terms of preliminary decree either under section 54 or under Order 26 Rule 13 and 14 CPC then Court shall proceed under section 2 and 3 of the Partition Act the Court has the discretionary power to adopt equitable method. One such equitable method is called ownelty. According to ownlty method 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.
Partition - Indivisiblity of property - Procedure. See, Code of Civil Procedure, 1908 - Section 54, Order 26.
Cases Referred: AIR 1973 SC 643; AIR 1978 SC 845.
Partition Act, 1860 - Section 2 - Once moiety - Meaning - Partition - Scheduled property found to be impartible - One party found entitled to 1/10 the share - Request for sale by - Held, his request for sale of schedule property will not satisfy conditions of one moiety or upwards - Course open. Dilatory settled principles :"1. In a suit for parition if, it appears to the Court that for the reasons stated in Section 2 a division of the property cannot resonably and conveiently be made and that a sale of proeprty would be more beneficial it can direct sale. This can be done, however, only ont he request of the shareholders interested individually, or collectively to the extent of one moiety or upwards. 2. When a request is made under Section 2 to the court to direct a slae any other shareholder can apply under section 3 for leave to buy at a valuation the share of the other party asking for a sale. 3. The court has to order valuation of the share of the party asking for sale. 4. After the valuation has been made the court has to offer to sell the share of the party asking for sale to the shareholder applying for leave to buy under Section 3. 5. If two or more shareholders serverally apply for leave to buy the court is bound to order a sale of the share or shares to the sharehoder who offers to pay the higherst prive above the valuation made by the court. 6. If no shareholder is willing to buy such share or shares at the prince so ascertained the application under Section 3 shall be dismissed, the applicant being liable to pay all the costs." [AIR 1973 SC 643].
Cases Referred: AIR 1973 SC 643; AIR 1978 SC 845.
( 1 ) IN this writ petition the petitioner has prayed for a writ in the nature of certiorari to quash the order dated 22. 02. 2007 in FDP No. 15/2002 passed by the II Additional Civil Judge (Junior Division), karkala, in so far as it relates to rejection of LA. No. II filed by the petitioner under Section 3 of the Partition Act.
( 2 ) FIRST respondent filed O. S. No. 168/2001 against the petitioner, second respondent and others for partition and separate possession of his 1/10* share. In O. S. No. 168/2001, the defendant nos. 1, 3 to 5 and 7 to 9 relinquished their rights in the schedule property in favour of the petitioner under a registered relinquishment deed dated 10. 01. 2002. Subsequently a joint memo was filed in O. S. No. 168/2001. In terms of the joint memo the trial Court passed a preliminary decree declaring that the first and second respondents are entitled for 1/10th share each and petitioner is entitled for 8/10th share. Subsequently first respondent filed F. D. P. No. 15/2002 before the trial Court to draw the final decree. In this F. D. P. No. 15/2002 the trial Court appointed a Court Commissioner to find out the feasibility of division of schedule property in terms of preliminary decree. The court Commissioner submitted a report dated 28. 02. 2004 stating that it is not feasible to divide the schedule property in terms of the preliminary decree. Thereafter the first respondent got the schedule property valued by a PWD Engineer and he submitted a valuation report valuing the schedule property at Rs. 8. 00 lakhs. Subsequently the first respondent filed an application, I. A. No. I under Section 2 of the Partition Act seeking public auction of the schedule property and to distribute the sale proceeds amongst the sharers. Petitioner filed an application, I. A. No. II under Section 3 of the Partition Act to buy the shares of first and second respondents in terms of the valuation made by the PWD Engineer. The first respondent filed another application, i. A. No. III offering to purchase the schedule property at Rs. 15. 00 lakhs. Second respondent filed an application, I. A. No. IV to buy the shares of first respondent and petitioner at the rate valued by PWD engineer. The trial Court by a common order dismissed all the applications. Hence, this writ petition in so far as it relates to dismissal of I. A. No. II filed by the petitioner under Section 3 of the Partition Act.
( 3 ) HEARD arguments on both the side and perused the entire writ papers.
( 4 ) IT is not in dispute that the schedule property consists of a building and a temple called Navadurga Temple. The property to be divided is only the building portion and not the temple. The Court commissioner submitted a report on 28. 02. 2004 stating that it is not feasible to divide the schedule property in terms of preliminary decree and the same is accepted by the parties. Therefore the question of division and separation of schedule property in terms of preliminary decree under Section 54 or under Order 26 Rule 13 and 14 CPC is not possible. Then it is to be examined whether it is possible to proceed under Partition Act, 1890. Section 2 of the Partition Act specifies for sale of schedule property and for distribution of sale proceeds on prorata basis subject to certain conditions. Section 3 of the Partition act specifies to buy the share or shares of other shareholders, internal bid etc. The Supreme Court in the case of R. RAMAMURTHIAIYAR (DEAD) BYLRs Vs. RAJA V. RAJESWARARA, AIR 1973 SC 643 while interpreting the scope of Section 2 and 3 of the Partition Act specified the various stages in the final decree proceedings as under:
" 1. In a suit for partition if, it appears to the court that for the reasons stated in S. 2 a division of the property cannot reasonably and conveniently be made and that a sale of property would be more beneficial it can direct sale. This can be done, however, only on the request of the shareholders interested indi
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