Back
2026 Supreme(Online)(Kar) 23807
THE HIGH COURT OF KARNATAKA
Anu Sivaraman, Tara Vitasta Ganju, JJ
M.A Somashekara – Appellant
Versus
M. N. Kusuma – Respondent
RFA No. 882 of 2023
For the Appellants/Petitioners: Sanath Kumar Shetty K.
For the Respondents: Jai Prakash Rao, Anish Acharya, K.M. Rohini, R.A. Devanand
An order for the sale of property under the Partition Act, 1893, requires the court to conduct a proper feasibility assessment and fix a reserve price for any auction, failing which, the order is procedurally infirm and liable to be set aside.
Headnote:(A) Partition Act, 1893 - Sections 2, 3, 4, 6 - Order for sale of property - Requirement for feasibility report and reserve price - Trial court failed to obtain a feasibility report and failed to fix a reserve price as mandated by the Act.
Facts of the case:
The appellant challenged an order passed in a Final Decree Proceeding which directed the sale of suit properties by public auction. The appellant contended that the trial court failed to follow the mandatory requirements of the Partition Act, including the lack of a feasibility report and the failure to fix a reserve price.
Findings of Court:
The court found that the record lacked a proper feasibility report to justify an auction sale and noted that the trial court failed to comply with the procedural safeguards provided in Sections 2 to 6 of the Partition Act. Consequently, the matter was remanded for a fresh determination.
Issues: Whether the trial court’s order for sale of property without a feasibility report and reserve price was valid under the Partition Act.
Ratio Decidendi: An order for the sale of property in a partition suit must be preceded by a proper assessment of feasibility and strictly adhere to the auction procedures and reserve price requirements prescribed under the Partition Act.
Result: Appeal allowed; matter remanded to the Trial Court.
| Table of Content |
|---|
| 1. challenge to auction order on grounds of procedural non-compliance. (Para 1 , 2 , 3 , 4) |
| 2. statutory requirements for sale under partition act. (Para 5) |
| 3. necessity of remand due to lack of feasibility report and reserve price. (Para 6 , 7 , 8 , 9 , 10) |
ORAL JUDGMENT
(PER: HON'BLE MS. JUSTICE TARA VITASTA GANJU)
1. The present appeal seeks to challenge an order dated 28.03.2023 passed by the XVIII Additional City Civil Judge and Sessions Judge, Bengaluru in F.D.P.No.181/2014 (hereinafter referred to as ‘the Impugned Order’). By the Impugned Order, the learned Trial Court has directed division of the property by auction to be conducted in terms of the provisions of Section 2 of the Partition Act, 1893 (hereinafter referred to as ‘the Partition Act’).
2. This Court had by an order dated 27.06.2023 directed a stay of the Impugned Order and Judgment. The order has continued as is since then.
3. The learned counsel for the appellant submits that the Impugned Order suffers from infirmity, in as much as although the learned Trial Court had directed that a Feasibility Report be filed along with a Valuation report, only a Valuation report was filed by the Commissioner. In addition, the learned counsel contends that no reserve price was fixed as was the requirement of Section 6 of the Partition Act.
4. The learned counsel for the respondents on the other hand, submit that the Commissioner had given a Valuation Report dated 21.02.2019 and the Valuation Report was examined and the learned Trial Court found that the division is not feasible by metes and bounds. Thus, based on the Valuation Report, directions were passed in the Impugned Order. He further states that the suit property is not divisible by metes and bounds as there are six shares and some of these shareholders have dependents and in some cases the share has been stated to be further divisible. It is further contended that there are two (2) immovable properties in Bangalore namely the Schedule 2 and 4 properties which are not feasible for a division by metes and bounds. They seek to rely on the findings given in the Impugned Order in this behalf.
5. At this stage, it is relevant to extract the relevant provisions of the Partition Act, which are set out thus:
“2. Power to Court to order sale instead of division in partition suits. — Whenever in any suit for partition in which, if instituted prior to the commencement of this Act, a decree for partition might have been made, it appears to the Court that, by reason of the nature of the property to which the suit relates, or of the number of the shareholders therein, or of any other special circumstance, a division of the property cannot reasonably or conveniently be made, and that a sale of the property and distribution of the proceeds would be more beneficial for all the shareholders, the Court may, if it thinks fit, on the request of any of such shareholders interested individually or collectively to the extent of one moiety or upwards, direct a sale of the property and a distribution of the proceeds.
3. Procedure when sharer undertakes to buy.—(1) If, in any case in which the court is requested under the last foregoing section to direct a sale, any other shareholder applies for leave to buy at a valuation the share or shares of the party or parties asking for a sale, the court shall order a valuation of the share or shares in such manner as it may think fit and offer to sell the same to such shareholder at the price so ascertained, and may give all necessary and proper directions in that behalf.
(2) If two or more shareholders severally apply for leave to buy as provided in sub-section (1), the court shall order a sale of the share or shares to the shareholder who offers to pay the highest price above the valuation made by the court.
(3) If no such shareholder is willing to buy such share or shares at the price so ascertained, the applicant or applicants shall be liable to pay all costs of or incident to the ap
