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2011 Supreme(Kar) 552
High Court of Karnataka
THE HONOURABLE MR. JUSTICE K. SREEDHAR RAO
B.V. Harinarayana Reddy
Versus
Kumari Chukki Nanjunda Swamy & Others
WRIT PETITION Nos. 7578-7580 of 2010 (GM-CPC)
Decided on : 12-09-2011
For the Petitioner:Sreevatsa, Sr. Counsel for K. Dhiraj Kumar, Advocate.
For the Respondent:R1 & R2 - Ananth Mandagi, Sr. Counsel for Mandagi Associates, R4 & R5 - S.D.N. Prasad & M.N. Umesh, R3 - B.V. Raghuram Reddy, Advocates.
Headnote:CODE OF CIVIL PROCEDURE, 1908 - Order 7, Rule 11: [K. Sreedhar Rao, J] Application of first defendant before the Family Court that it has no jurisdiction to try a suit for partition - Rejection of - Writ proceedings - Matter referred to Lok-Adalat for settlement compromise between the parties - Order passed by the Lok-Adalat - Property sold by the first defendant to the father of respondents 1 and 2 after the settlement at Lok-Adalat, without information to the plaintiffs - Final decree proceedings initiated by the plaintiffs before the Family Court in terms of the award passed by the Lok-Adalat- Objection as to maintainability of final decree proceedings before the Family Court - Finding of the Family Court that the final decree proceedings is maintainable - Sale conducted by the Commissioner - Petitioner was the highest bidder - Confirmation of the bid of the petitioner and direction to the Commissioner to execute the sale deed - Issue of delivery warrant - Objection raised by the respondent 1 and 2 at stage - Rejection of objections - Order passed by the Family Court that the plaintiff is not entitled to file final decree proceedings and he has to apply for the execution - Legality of the proceedings before the Family Court initiated by a wife along with her children against her husband - Held, Under Section 7(1)(c) provides "a suit or proceedings between the parties to a marriage with respect to the "property of the parties" or of "either of them". - The Division Bench of High Court in Genu @ Ganu & ors., vs Jalabai & ors., reported in ILR 2009 (1) Kar 612 has held that, "a suit filed by the wife against her husband for partition and separate possession against his family property is not maintainable in the Family Court since the other parties who are not parties to the marriage also have interest in the said property. In the cited case, the daughters have filed a suit against the father for partition before the Family Court. In the instant case also, apart her husband. Therefore, evidently, the Family Court had no jurisdiction to entertain the suit. - In the writ petition, arising out of the suit filed before the Family Court, this Court had referred the matter to Lok Adalat for settlement and the matter ended in compromise before the Lok Adalat. The fact that the Family Court was lacking jurisdiction to entertain the suit for partition is not a ground by itself to hold that the award of the Lok Adalat is vitiated. Since the Lok-Adalat is an independent Statutory Forum to competently adjudicate the dispute between the parties and to pass and award irrespective of the fact that the nature of the proceedings of origin of the Court. In that view of the matter, it cannot be held that the award passed by the Lok-Adalat suffers from lack of exercisable jurisdiction.
LEGAL SERVICES AUTHORITIES ACT, 1987 - Section 22(e): [K. Sreedhar Rao, J] Award of Permanent Lok-Adalat - Held, The provision of sub-Section (e) of Section 22 should be harmoniously read to mean that whenever a permanent Lok-Adalat passes a preliminary decree, the said preliminary decree would be binding on the parties. However, they have to work out their rights by way of final decree proceedings. The terms of compromise in question in respect of the Bangalore house property, makes it clear that all the parties are entitled to scout for purchasers and any of the parties are at liberty to bring a prospective purchaser and the parties are agreed to sell the property to the person who offers the highest price who obviously would be the competitive purchaser. The terms of compromise does not enable anyone of the parties to effect sale without consent and reference to the other party who has a joint interest. Further Held, The provisions of Partition Act gives equitable rights to the parties who are the members of the family in respect of a dwelling house. The object of the Partition Act is to see that whenever any member of the family is willing and capable to purchase the dwelling house in accordance with the terms of the Partition At, an outsider should not be permitted to purchase the dwelling house. In that context, it is incumbent on the party to initiate the final decree proceedings to give effect to the terms of compromise. If the property is purchased by the family member in terms of the provisions of the Partition Act, a final decree is to be drawn accordingly, otherwise if a public auction is to be held and highest bid is to be accepted, accordingly a final decree is to be drawn, as the case may be and that final decree would also be subject to the appeal. The final decree drawn by the Trial Court subject to the order in the appeal would become executable. On facts, held, the impugned order of the Family Court is liable to be set-aside. The sale held by the Family Court in the final decree proceedings is also liable to the set-aside. The respondents 1 and 2 shall have to be impleaded in the final decree proceedings. The plaintiff/petitioner is entitled to approach the Civil Court for final decree. The Civil Court was directed to draw a final decree in terms of the compromise.
1. The petitioner is one of the plaintiffs in O.S.No.49/1992 on the file of the Family Court, Bangalore for partition against the father, who is the respondent No.3 and two others. An application under Order 7 Rule 11 C.P.C. was filed by the first defendant before the Family court that it has no jurisdiction to try a suit for partition. The Family Court over-ruled the objection. The first defendant aggrieved by the said order filed W.P.No.13839/1999. In the writ proceedings, the matter was referred to Lok Adalath for settlement. The parties arrived at a compromise and filed a compromise petition vide Annexure - ‘A’. The Lok Adalath vide Annexure- ‘B’ passed an order in the following manner:
“The parties are present and confirm that the entire pending dispute among the parties have been settled in terms of the joint memo dated 14.03.2001 and it is also given effect by registering a partition deed in terms of the joint memo in the office of the Sub-Registrar, Bagepalli.
It is also stated that the joint petition under Section 13-B of the Hindu Marriage Act, 1955 has also been filed. Parties submit that they will make joint efforts in dispose of the Bangalore property in terms of the joint memo.
Recording the said submission, the matter is closed in accordance with the said joint memo”.
2. The bone of contention between the parties is the house property situated in Bangalore, which is shown in Para – 2 of the compromise petition, which is extracted hereunder:
“The parties have settled the said suit as follows:
i) Parties agree that there are no joint family properties as described in schedule ‘B’ and ‘E’. Therefore, the claim of plaintiff in O.S.No.49/1992 in regard to moveable properties specified in schedule ‘B’ and ‘E’ are given up:
ii) Schedule ‘A’ relates to house property at Rajarajeswari Nagar, Bangalore. After mutual discussions, the parties have agreed that it is not convenient to divide the said property by metes and bounds. Therefore, the parties have agreed that the said property shall be sold and the sale consideration shall be divided equally, that in 50% to parties I (B V Raghurama Reddy) and 50% to parties 1 to 3 of III party (B V Harinarayana Reddy, B.V. Anupama Reddy and B.V. Meerareddy).
All are entitled to search and identify a purchaser for the property. Any of the parties is at liability to bring a prospective purchaser and parties agree to sell the property to the person who offers highest price”.
3. The first defendant after the settlement at Lok Adalath has sold the Bangalore property to one Nanjundaswamy who is the father of respondents 1 & 2 in this petition without information to the plaintiffs. The plaintiffs filed final decree proceedings before the Family Court to pass a final decree in terms of the award passed by the Lok Adalath. The defendant raised an objection that first decree proceedings are not maintainable and also contended that by virtue of the compromise decree, he holds 50% share in the property in question and that he has executed the sale deed in favour of one Nanjundaswamy. Therefore, submits that the question of drawing up of a final decree does not arise and also that appointment of Commissioner for the sale of the property does not arise.
4. The Family Court by order dated 18.09.2003 vide Annexure- ‘C’ over-ruled the objection and held that F.D.P. is maintainable. The Family Court appointed a Commissioner for effecting the sale of the property in terms of the compromise petition. The Commissioner after due publication of the sale, sold the property in auction. The petitioner took permission of the Court to bid and he was the highest bidder. The Court confirmed the bid of the petitioner and directed the Commissioner to execute the sale deed and that sale certificate was also issued. Respondents 1 & 2 subsequent to the sale in favour of the petitioner, the Court issued delivery warrant. The respondents 1 & 2 at that stage made applications to get impleaded under Order
