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2023 Supreme(Online)(Kar) 33379
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MARCH, 2023 BEFORE THE HON'BLE MR JUSTICE B M SHYAM PRASAD WRIT PETITION NO. 6384 OF 2016 (GM-CPC)
BETWEEN:
1. MRS. LEENA NAZARETH AGED ABOUT 78 YEARS, W/O. LATE CYPRIAN NAZARETH, RESIDING AT DOOR NO. 4-85, PADIL POST, MANGALORE - 575 007.
2. MR. KINGSLY NAZARETH, AGED ABOUT 48 YEARS, S/O. LATE CYPRIAN NAZARETH, RESIDING AT DOOR NO. 4-85, PADIL POST, MANGALORE - 575 007.
Digitally signed by …PETITIONERS NARASIMHA MURTHY (BY SRI. CYRIL PRASAD PAIS.,ADVOCATE)
VANAMALA Location:
AND: HIGH COURT OF
SINCE DEAD BY LRS
1(A) MS. CLEMENTINE D'CRUZ, D/O LATE MARY D'CRUZ AGED ABOUT 46 YEARS
1(B) MR. CLETUS D'CRUZ S/O LATE MARY D'CRUZ AGED ABOUT 44 YEARS BOTH ARE RESIDING AT FLAT NO. 102, JEEVAN BODH, MAMLETDARWADI, ROAD NO. 6, NEAR ABHIJEETH HOSPITAL, MALAD WEST, MUMBAI - 400 064.
2. MRS. JULIANA PAIS W/O. VICTOR L. PAIS, AGED ABOUT 76 YEARS, R/AT UNITED TOWERS, 102/103, CHINCHOLI, SIDE OF INFANT JESUS CHURCH, MALAD, MUMBAI - 400 064.
3. MS. EMILDA MARIA NAZARETH, AGED ABOUT 75 YEARS, NAZARETH HOUSE, PADIL, MANGALORE - 575 007.
4. MRS. DOLLY NAZARETH @ ADOLINE DEMELLO AGED ABOUT 54 YEARS, W/O. RICHARD DEMELLOW, NIDLE HOUSE, KULASHEKAR POST, MANGALORE - 575 005.
5. MR. AUSTIN CHRISTOPHER NAZARETH, AGED ABOUT 51 YEARS, S/O. ALPHONS NAZARETH, RESIDING AT NAZARETH HOUSE, PADIL, MANGALORE - 575 007.
6. MRS. ANNETTE MENEZES, AGED ABOUT 46 YEARS, W/O. ALWYN MENEZES, R/AT CORELAB LIMITED, POST OFFICE BOX 8503, ABUDHABI, UAE.
7. MR. ARUN RAY NAZARETH AGED ABOUT 46 YEARS, S/O. ALPHONS NAZARETH, R/AT NAZARETH HOUSE, PADIL, MANGALORE - 575 007. 8. MRS. QUINIE NAZARETH, AGED ABOUT 52 YEARS, W/O. LANCY NORONHA, R/AT DODDA BOMMANASANTHE, JALAHALLI, BANGALORE.
9. MRS. PRINCY ARANHA, AGED ABOUT 45 YEARS, W/O. ALEN ARANHA, R/AT DODDA BOMMANASANTHE, JALAHALLI, BANGALORE.
…RESPONDENTS (BY SRI.VIJAY KRISHNA BHAT M. FOR R1(A & B), R2, R6 AND R7, ADVOCATE; SRI. VINAY PAUL T.K., FOR R AND R9, ADVOCATE; R3 TO R5 SERVED; V/O DATED
27.05/2021 NOTICE TO R7 IS HELD SUFFICIENT)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 02.12.2015 PASSED BY THE PRINCIPAL CIVIL JUDGE & CJM, MANGALURU IN FDP NO.6/2005 WHICH IS AT ANNEXURE-A AND CONSEQENTLY DIRECT THE TRIAL COURT TO PARTITION THE SCHEDULE PROPERTY BY METES AND BOUNDS.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN "B" GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
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 respondents, submits that indeed the Commissioner’s Report dated 07.08.2010 and 22.08.2013 are not acceptable to the respondents, but no exception can be taken with the Civil Court’s observation which is essentially that neither of the Commissioners are able to
