Point of Law: Section 4 deals with a situation where a share in a dwelling house belonging to undivided family has been sold to a person who is not a member of family.

ORDER :

This writ petition is directed against order dated 25.10.2021 on I.A. No. 35 filed in FDP 3/2002 on the file of Principal Senior Civil Judge, Bhadravathi.

2. I.A. No. 35 was filed by the respondents under section 151 CPC read with sections 3 and 4 of the Partition Act for considering their applications I.A.23 and 24. Given the brief background, in the FDP proceeding the petitioners applied for auction sale of the suit property as it was not feasible to be divided into three parts. The court obtained valuation of the property through Assistant Engineer of the City Municipal Council, Bhadravathi and ordered for spot sale on 12.4.2006 and court sale on 19.4.2006. At the spot sale the highest bidder was Ramachandra Rao, the original judgment debtor, for Rs.12,05,000/-. But on 19.4.2006 the court sale was not held and it was postponed to three dates 20.4.2006, 21.4.2006 and 22.4.2006. At last one Mujeeb offered to purchase the property for Rs.12,10,000/- and the court accepted his offer and directed him to deposit 1/4th of the bid amount immediately; but he did not. He made the deposit of 1/4th of bid amount on 31.5.2006 and the balance on 26.6.2006. The first respondent who is the legal representative of Ramachandra Rao questioned the auction sale by preferring W.P.11666/2011 before this court. The writ petition was allowed with a direction to proceed in accordance with the provisions of the Partition Act. Then the respondents filed an application under section 3 of the Partition Act as per I.A. No. 23 seeking permission to deposit 2/3rd of Rs.12,10,000/- and another application under section 4 of the Partition Act seeking permission to exercise right of pre-emption. The petitioners also requested the court to release their 2/3rd share. The trial court by its order dated 25.10.2021, partly allowed I.A.35 and directed the respondents to deposit Rs.16,57,058/- being 2/3rd share of the petitioners in the total value of suit property and permitted them to purchase the share of the petitioners. This is the order challenged here.

3. I heard the argument of Sri S.B. Halli, learned advocate for the petitioners, and Sri K.S. Tayur for respondent No.1 and Sri Manjunath Pattana Shetty for respondents 2 and 3.

4. The argument of Sri S.B. Halli was that although the petitioners did not make an application under section 3 of the Partition Act, they being the shareholders were entitled to buy the share of the respondents. He argued that since the petitioners first made an application under section 2 of the Partition Act, they would get a right to buy the share of other shareholders. This kind of a right, he argued, would always be available to the petitioners and it was not necessary that they too should have filed an application under section 3 of the Partition Act. He emphasized the point that the trial court committed an error in not permitting the petitioners to buy the respondents’ share.

5. On the other hand, Sri K.S. Tayur, learned counsel for respondent No.1 argued that the petitioners lost their right to buy the shares of the respondents. They made an application under section 2 of the Partition Act which was indicative of the fact they wanted the property to be sold for sharing the sale proceeds. The language of section 3 of the Partition Act is so clear that if one sharer would make an application under section 2, the other share holder would get a right to buy the share of that party who had filed an application under section 2. Here the petitioners filed the application under section 2, and they were estopped from claiming right to buy the shares of the respondents. It was also his another point of argument that the value of the property as it prevailed on the date of application under section 3 of the Act should be considered. Therefore it was his argument that the petitioners had no right to challenge the order passed by the trial court.

6. Now if the impugned order is seen, the trial court having noticed the orders passed by th