The compromise decrees in a partition suit can be considered as preliminary decrees for partition, and compliance with legal provisions such as the Urban Land Ceiling Act should not defer the delivery of vacant possession.

A. THAKURDAS VS. A. VENILAL

( 1 ) THIS revision petition is directed against the judgment of the Civil Judge, Civil Station, bangalore, by which he disposed of four Interlocutory Applications Nos. 54, 55, 56 and 57 of 1975 arising from a suit for partition in which proceedings for passing of a final decree are pending. 0. S. No. 22/60 was filed by one Smt. Umia Ben, for partition of moveable and immoveable properties left by her deceased father Ambar,am Fakirbhai Vekharia. The deceased died on 4-12-1959 leaving six sons (defendants 1 to 6) and five daughters including the plaintiff. One of the daughters Umia Ben who was the former defendant No. 7 was subsequently transposed as plaintiff. It was stated that that she had sold her rights in the properties to the defendants (2, 4 to 6 ). The suit was obviously for partition of the properties and also for rendition of accounts. It appears, subsequently defendants 1 to 6 applied for being transposed as plaintiffs but their respective applications were rejected. The suit was compromised and a decree that followed indicated that the plaintiff was entitled to Rs. 70,000/- and similarly the other four sisters would be entitled to Rs. 70,000/each, which amount was to be paid by the defendants 1 to 6 and the respective shares of these defendants were also specified in the compromise decree. After this compromise decree which was passed on 26-11-1970 the parties seem to have waited for some time and on 28-1-1972, Thakordes (defendant-1) filed an application in which he stated, inter alia, that a preliminary decree was passed on 26-111970 and the proceedings be initiated for preparation of a final decree. He claimed for partition of the properties and with that purpose in view, asked for the appointment of a Court Commissioner. It appears, as many as three Commissioners were appointed by the Court, but it was ultimately found that the properties, which included a residential house at the Hospital Road and a shop at the Commercial street were incapable of being partitioned. Accordingly, the court considered that these properties be sold and the proceeds be distributed amongst the co-sharers. The defendants 2, 4 to 6 being dissatisfied with the order of the court filed C. R. P. 2920/73 against defendants 1 and 3 before the High Court and on 14-8-1974 again, a compromise was brought into existence between the parties. In that compromise it was laid down, that the total value of the disputed house and the shop was Rs. Fifteen Lakhs and that the defendants 1 and 3 could take the house and the shop after paying Rs. 10,71,428. 50 the value of the share belonging to defendant-2 and defendants 4 to 6. This payment wag to be made before 14-11-1974 Failing that, the defendants 2, 4 to 6 were entitled to purchase the two properties by making total payment of Rs. 3,50,000 to the defendants I and 3. It appears the defendants 1 and 3 did not deposit the amount and as such the defendants 2, 4 to 6 became entitled to vacant possession of the two properties as they deposited Rupees 3,50,000/- on 16-11-1974. Thereafter, I. A. No. 45 was filed by defendants 2, 4 to 6 in which a prayer was made that vacant possession of the two properties be handed over to them and defendants I and 3 should vacate the two premises. It was also averred that the sale certificate be issued in their favour and that the stock in-trade kept within the premises of the shop be got removed and disposed of according to law. There was some dispute in regard to the payment of estate duty and it was further prayed that the defendants I and 3 be asked to pay their share of the estate duty which was a charge upon the two properties. In fact, the Estate Duty officer had effected attachment of the amount deposited, in lieu of payment of the estate duty. There was also a claim of Vijaya Bank which had advanced some money to these defendants. Defendants 1 and 3 filed their objections in I. A. No. 45 and they inter alia submitted that the amount w

Click Here to Read the rest of this document