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2023 Supreme(Kar) 1407
IN THE HIGH COURT OF KARNATAKA
B.M. Shyam Prasad, J.
Leena Nazareth and Others – Petitioners
Versus
Mary D'cruz Since Dead By Lrs Ms. Clementine D'cruz and Others – Respondents
Writ Petition No. 6384 of 2016
Decided On : 29-03-2023
Advocate Appeared:
For the Petitioner: Cyril Prasad Pais
For the Respondents: Vijay Krishna Bhat M., Vinay Paul T.K.
Headnote:(A) Partition Act, 1893 - Section 2 - Final decree proceedings - The civil Court found that there was no consensus for the division of property by metes and bounds and suggested sale in public auction for equitable distribution. (Para 1, 9)
(B) Construction of residential property - The petitioners claimed entitlement to retain a residential building constructed with consent, but the court noted this did not confer vested rights because of the pending partition decree. (Para 5, 7)
Facts of the case:
Legal representatives of deceased siblings disputed the partition of property valued at Rs.28,60,000/-, with the civil Court concluding it could not be divided equitably. (Paras 3, 4)
Findings of Court:
The civil Court's approach to sell the property was justified, emphasizing the necessity for equitable resolution given the property characteristics and ongoing disputes. (Para 9)
Issues: The key issues involved whether the property could be equitably divided and the implications of consent given for construction. (Para 6)
Ratio Decidendi: The court reinforced the principle that under Section 2 of the Partition Act, sale may be more beneficial when equitable division is not feasible, allowing the petitioners to apply to purchase shares before sale. (Para 9)
Result: The petition was disposed of, allowing petitioners to apply for share purchase and deferring any sale orders.
| Table of Content |
|---|
| 1. factual background of the case (Para 1 , 2 , 3 , 4) |
| 2. parties' arguments regarding property division (Para 5 , 6 , 7) |
| 3. court's analysis on partition feasibility (Para 8 , 9) |
| 4. ordering the sale of property under partition act (Para 10) |
ORDER :
1. This petition is by the respondent Nos.1(a) and 1(b) in final decree proceedings in FDP No.6 of 2005 on the file of the Principal Senior Civil Judge and CJM, Mangaluru, who was then holding concurrent charge [for short, the 'civil Court']. The civil Court by the impugned order dated 02.12.2015 has opined that there is no consensus amongst the parties for division of the suit schedule property [the subject property] by metes and bounds and the Court Commissioner is unable to suggest equitable partition of the suit schedule property by metes and bounds, and therefore, it would be just and necessary to sell the subject property in public auction and distribute the sale proceeds in terms of the preliminary decree.
2. Mrs. Mary D'Cruz and Mrs. Juliana Pais [the first respondent and the second respondent-the sisters] have filed the suit in O.S.No.10 of 1996 on the file of the Senior Civil Judge, Mangaluru against the legal representatives of their deceased brother - Mr. Alfonse Nazareth, and their other brother, Mr. Cyprian Nazareth [the first defendant], who is now no more and is represented by the petitioners herein. Mrs. Mary D'Cruz is no more, and she is represented by her legal representatives.
3. This suit in O.S.No.10 of 1996 is decreed declaring that the sisters, Mrs. Mary D'Cruz and Mrs. Juliana Pais, are entitled to a half share in the subject property and one of the legal heirs of the deceased brother Alfonse Nazareth would be entitled to one-eighth share with the direction that the subject property shall be divided by metes and bounds. It is undisputed that pursuant to this decree, the legal heirs of Mrs. Mary D'Cruz, Mr.Alfonse Nazareth and Mr. Cyprian Nazareth, and Mrs. Juliana Pais, are entitled to ¼ share respectively in the subject property.
4. The subject property is situated in Kannur village of Mangalore Taluk measuring 30 cents comprising of different built-up areas. Mrs. Mary D'Cruz and Mrs. Juliana Pais have commenced the final decree proceedings. A Court Commissioner is appointed for division of the property by metes and bounds, and this Commissioner has filed his report on 07.08.2010. Thereafter, another Court Commissioner is appointed, and he has filed his report on 22.08.2013. In the meanwhile, the valuation report is also obtained on 17.08.2013 and in terms of this report, the value of the property is Rs.28,60,000/-.
5. Mr. Cyril Prasad Pais, the learned Counsel for the petitioners, submits that this Court must interfere with the civil Court's order because of the following:
[a] Firstly, because the civil Court has presumed that the Commissioner's Reports dated 07.08.2010 and 22.08.2013 are inconclusive and that the subject property cannot be partitioned by metes and bounds in terms of the preliminary decree.
[b] Secondly, Mr. Cyprian Nazareth [under whom the petitioners claim] has constructed a residential building from out of his own funds with the consent of the sisters, Mrs. Mary D'Cruz and Mrs. Juliana Pais as also the deceased brother, Sri Alphonso Nazareth, and because the siblings have permitted the construction, the petitioners are entitled to claim equity to retain the residential house.
[c] Thirdly, the petitioners are categorical, and it can be reiterated again before this Court, that the residential house within the subject property with appurtenants must be permitted to be retained by the petitioners in the circumstances and if such area is more than what they would be entitled to they would pay the corresponding value to the other sharers.
Mr. Cyril Prasad Pais emphasizes that unless the second and third aspects are considered, the subject property cannot be brought to auction.
6. Sri Vijaya Krishna Bhat, the learned counsel for the respon
