Under Section 3 of the Partition Act, 1893, where multiple shareholders apply for leave to purchase a property that cannot be divided by metes and bounds, the court must permit the shareholder offering the highest price above the valuation to purchase the property.

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI OR A WRIT OF ANY OTHER NATURE OR DESCRIPTION TO ALLOW THE SAID APPLICATION MADE UNDER SECTION 3 OF THE PARTITION ACT, 1893 READ WITH SECTION 151 OF THE CPC DATED 22-MAR-2025 (ANNEXURE D) BY QUASHING THE ORDER PASSED BY THE HONBLE XXXV ADDITIONAL CITY CIVIL JUDGE, BENGALURU (CCH-36) IN FDP NO.121 OF 2019 ARISING OUT OF OS NO.3229 OF 2018 ON 22-MAR-2025 (ANNEXURE E) REJECTING THE SAME APPLICATION, IN ORDER TO PREVENT A GRAVE MISCARRIAGE OF JUSTICE AND ETC.

THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE H.T. NARENDRA PRASAD

ORAL ORDER

This writ petition is filed under Articles 226 and 227 of the Constitution of India, challenging the order dated 22.03.2025, whereby the petitioner’s application filed under Section 3 of the Partition Act, 1893 r/w. Section 151 of Civil Procedure Code has been dismissed.

Respondent No.1 herein, who is the plaintiff in O.S.No.3229/2018, filed a suit for partition and separate possession. The suit came to be decreed, and a preliminary decree was passed on 10.07.2019. Thereafter, Final Decree Proceedings were initiated in F.D.P. No. 121/2019. The Final Decree Court came to the conclusion that the suit schedule property could not be partitioned by metes and bounds and decided to conduct a public auction.

The petitioner herein challenged the same before this Court in W.P.No.20587/2024 on the ground that the procedure prescribed under Rules 138, 139, and 140 of the Karnataka Civil Rules of Practice, 1967 had not been followed by the Final Decree Court. The said writ petition was disposed of on 14.11.2024, directing the Final Decree Court to conduct the public auction in accordance with law. The petitioner herein was also permitted to participate in the auction subject to filing of an appropriate application for the same.

Thereafter, the petitioner filed an application under Section 3 of the Partition Act. The said application came to be dismissed. Being aggrieved by the same, the petitioner is before this Court.

Learned counsel appearing for the petitioner submits that, as per Section 3 of the Partition Act, the Court has to give first preference to the shareholders to purchase the concerned property. Even if two or more shareholders severally apply for leave to purchase the property, the person who offers to pay the highest price has to be permitted to do so. Therefore, it is the case of the petitioner that contrary to Section 3 of the Partition Act, the application filed by the petitioner has been dismissed.

He further submits that the petitioner is also one of the shareholders of the property in question and that she has the right to offer the highest price, i.e., more than the price quoted by the second respondent. Hence, he seeks to allow the writ petition.

The learned counsel appearing for the second respondent submits that this Court, in the earlier round of litigation in W.P.No.20587/2024, directed the Final Decree Court to conduct a public auction in compliance with the procedure prescribed under Rules 138, 139, and 140 of the Karnataka Civil Rules of Practice, 1967 . Accordingly, the auction has been conducted. The highest bidder is none other than one of the family members, i.e., respondent No.2. Hence, he seeks dismissal of the writ petition.

Heard the learned counsel for the parties and perused the writ petition papers.

In the final decree proceedings, the Final Decree Court conducted a public auction of the property on the ground that the suit schedule property could not be divided among the shareholders by metes and bounds. In the meanwhile the public auction was conducted. At that stage, petitioner herein filed IA No.5 under Section 151 of CPC for a direction to sell the suit schedule property in favour of the petitioner herein. On 27.03.2024 the application filed by the petitioner was dismissed by the Final