Karnataka High Court
Mrs. Leena Nazareth vs Mrs. Mary D Cruz on 29 March, 2023
Author: B M Shyam Prasad
Bench: B M Shyam Prasad
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WP No. 6384 of 2016
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
NARASIMHA ...PETITIONERS
MURTHY
VANAMALA (BY SRI. CYRIL PRASAD PAIS.,ADVOCATE)
Location:
HIGH AND:
COURT OF
KARNATAKA 1. MRS. MARY D'CRUZ
SINCE DEAD BY LRS
1(A) MS. CLEMENTINE D'CRUZ,
D/O LATE MARY D'CRUZ
AGED ABOUT 46 YEARS
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WP No. 6384 of 2016
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,
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WP No. 6384 of 2016
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
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WP No. 6384 of 2016
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 -5- WP No. 6384 of 2016 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 -6- WP No. 6384 of 2016 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/-.
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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, -8- WP No. 6384 of 2016 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, -9- WP No. 6384 of 2016 but no exception can be taken with the Civil Court's observation which is essentially that neither of the Commissioners are able to suggest division of the subject property in a manner acceptable because of the dimension and the constructions in the subject property. If the property is divided horizontally much of the area would be lost towards the common access and would be without regard to the existing structures. If the property is divided vertically into four parts, given its length, the so divided properties cannot be put to any profitable use. The civil Court in the circumstances is justified in opining that it is just and proper to bring the property to sale.
7. As regards the consent for construction canvassed by Sri Cyril Prasad Pais, Sri Vijay Krishna Bhat, relying upon the consent [which are in writing and appended to Annexures - E and F], submits that it would be indisputable that consent was only for construction of a room and without in any manner
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WP No. 6384 of 2016jeopardizing the right to seek division of the properties and such consent is given much before the commencement of the suit. The petitioners cannot claim any vested right in any portion of the subject property when there is decree for partition by metes and bounds.
8. The Court, to decide on the rival claims, must bring on record two sketches of the subject property which are not disputed, and these two sketches read as follows:
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The petitioners' claim they should be allotted the residential property [which is in the center of the property as in the first sketch - a document that is relied upon by the petitioners to retain the residential property], and the respondents contend if the property is divided as suggested based on the first sketch (that is excluding the residential property), it would be inequitable because the other sharers will not have profitable use of their respective portions. There is considerable force in the submissions by Sri Vijay Krishna Bhat that this property cannot be divided either horizontally or vertically for the reasons canvassed by him. Significantly, the petitioners are against sale of the property essentially because they want to retain the main residential building which occupies almost the center area of the property.
9. In the circumstances, this Court must opine that the civil Court's conclusion that the
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WP No. 6384 of 2016subject property cannot be divided by metes and bounds equitably answers the test contemplated under the provisions of Section 2 of the Partition Act, 1893 [for short, the 'Partition Act']. The provisions of Section 2 of the Partition Act provide that where it appears to the Court that by reason of the nature of the property a division cannot be reasonably or conveniently be made and that sale and distribution of the sale proceeds would be more beneficial for all the sharers, it can direct the property to be sold with necessary orders on distribution of the sale proceeds on the request made in that regard either individually or collectively.
10. As such, the subject property must be brought to sale, and this Court must, in the interest of justice, record that for if for any reason the petitioners are willing to purchase others' share they must have the liberty to make an application as contemplated under the provisions of the Partition
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WP No. 6384 of 2016Act. This liberty must be exercised before the property is brought to sale in public auction. Further, there cannot be sale at this stage as ordered by the civil Court based on valuation which is of the year 2013. Furthermore, the dispute is pending for over three decades, and there must be expeditious disposal of the proceedings with necessary closure, and hence the following:
ORDER [a] The petition stands disposed of with liberty to the petitioners to make an application as contemplated under the provisions of the Partition Act for purchase of one or other shares, and if the petitioners exercise their liberty and file application within the two [2] months from the date of receipt of a certified copy of the order, the civil Court shall consider the same after due opportunity to all the concerned.
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[b] The civil Court is called upon to defer the orders to bring the property to sale until the consideration of the application, if filed within the time allowed by this Court.
[c] It would be needless to observe that even if the application as aforesaid is filed in terms of the liberty granted, there must be valuation of the property as of today. Therefore, the civil Court is called upon to secure valuation of the subject property at the petitioners' cost under all circumstances before 30.04.2023.
Sd/-
JUDGE NV