Karnataka High Court
Dr Shruthi Saralaya vs Smt Sulochana Saralaya on 18 February, 2016
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF FEBRUARY 2016
BEFORE
THE HON'BLE MR.JUSTICE BUDIHAL R.B.
WRIT PETITION No.58860/2015(GM-CPC)
BETWEEN:
Dr. Shruthi Saralaya
D/o Late Dr. P Vittal Saralaya
Aged about 28 years
Karike House
Pandeshwara Temple Road
Mangaluru-571 001. ... PETITIONER
(By Sri Sanathkumar Shetty K, Adv.)
AND:
1. Smt Sulochana Saralaya
W/o Late P Madhava Saralaya
Aged about 68 years
2. Kavitha Saralaya
Aged about 47 years
D/o Late P Madhava Saralaya
3. Triveni Venkatram
W/o Venkatram
Aged 42 years
4. Sudarshana Saralaya
S/o Late P Madhava Saralaya
Aged 37 years
The respondents 1 to 4 are
R/at Sreeshadhama
2nd Cross, 1st Main
2
S.V. Layout
Boopasandra
Bengaluru-560 094.
5. Mrs. Kamalaxi
Aged 51 years
W/o Sri T S Sreepathi Acharya
D/o Late Padmanabha Saralaya
Delampadi Village
Kasaragodu Taluk-432 004
Post: Parappa
Kasaragodu District.
6. Mrs. Jhanavi
W/o Dr. S K Talapadi
D/o Late P Madhava Saralaya
Aged about 69 years
Mithraniketan
Near 1st T K Benaras Hindu University
Post: Varanasi
Uttara Pradesh-643 205.
7. Mrs. Meera
W/o Late P Padmanabhaba Saralaya
Aged 77 years
Panchakshari
Shivabagh Road
Kadri
Mangaluru-575 003.
8. Mrs. Shwetha
D/o Late Dr. Padmanabha Saralaya
W/o Rajesh Hebbar
Aged 48 years
Panchavati, K.S. Rao Road
Mangaluru-575 001.
9. Kumari Sushma
D/o Late Dr. padmanabha Saralaya
Aged about 42 years
Panchakshari, Shivabagh
Kankanady Post
Mangaluru-575 002.
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10. Mrs. Uma
W/o Late Vijesh Saralaya
Aged about 56 years
Karike House, Pandeshwara
Temple Road
Mangalore-575 016
11. Kumari Vijetha
D/o Late Vijesh Saralaya
Aged about 18 years
Karike House, Pandeshwara
Temple Road
Mangalore-575 016.
12. Mrs. Vineetha S Rao
D/o Late Ramakrishna
Saralaya
Aged about 39 years
Karike House, Pandeshwara
Temple Road
Mangalore-575 016.
13. Dr. Vittal Saralya P
S/o Late Ramakrishna Saralaya
Aged about 64 years
Karike House, Pandeshwara
Temple Road
Mangalore-575 016. ....RESPONDENTS
(By Sri S G Bhagavan, Adv. for R-1 to R-4
R-7 to R-10 and R-13 Served - Unrepresented)
This Writ Petition is filed under Article 227 of the
Constitution of India praying to quash the order dated
27.06.2014 and 25.06.2015 passed in FDP No.12/2002 on
the file of 3rd Addl. Senior Civil Judge, Mangalore, D.K.
directing the sale of schedule property by the advocate
commissioner vide Annexure-A.
This Writ Petition coming on for Orders this day, the
Court made the following:
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ORDER
Though the matter is listed in the orders list, with the consent of learned counsel on both sides it is taken up for final disposal.
2. This petition is filed to issue writ in the nature of certiorari to quash the orders dated 27.6.2014 and 25.6.2015 passed in FDP No.12/2002 on the file of III Addl. Senior Civil Judge, Mangalore, D.K. directing the sale of schedule property by the Advocate Commissioner vide order produced as per Annexure 'A'.
3. Heard the arguments of learned counsel for the petitioner and also learned counsel for the respondents.
4. Learned counsel for the petitioner during the course of his arguments submitted that petitioner is the daughter of respondent No.13. She filed application before the FDP Court seeking impleadment and also requested to pass preliminary decree in respect of her 5 share. The FDP Court allowed her application and supplementary preliminary decree was also passed with regard to her share. Commissioner was appointed to division the properties as per the preliminary decree, who has submitted his report along with the sketch as per Annexure 'E'. Learned counsel for the petitioner drew the attention of this Court to the order of the trial Court wherein it has ordered for sale of the schedule property. In this connection he has referred to Section 2 of the Partition Act of 1893 and submitted that the sale of property, instead of division, can be made by the Court when division is not possible as per the opinion of the Commissioner or if sale of the property and distribution of proceeds would be more beneficial to all the shareholders. Without making reference to Section 2 of the Partition Act and without making any sort of enquiry in the matter whether property can be divisible as per the shares of the parties or not and without recording any findings, the trial Court has passed the impugned order. Hence, the learned counsel has 6 submitted that the impugned order is not legal and will not sustain in the eye of law and accordingly, submitted to allow the writ petition.
5. Per-contra, learned counsel for respondents during the course of arguments submitted that firstly in the cause title of the petition petitioner is shown as daughter of late Dr.P.Vittal Saralaya and in the respondents' column Dr.P.Vittal Saralaya is shown as respondent No.13. Therefore, when Dr.P.Vittal Saralaya is still alive, petitioner is not entitled to any share and with regard to this aspect the petitioner has not clarified. However so far as passing of preliminary decree in favour of petitioner is concerned, learned counsel is fair enough to make submission that said preliminary decree has not been challenged by the respondents and they may challenge the said decree. It is also his submission that when she has no right at all over the property during the lifetime of Dr.P.Vittal 7 Saralaya-respondent No.13, her petition itself is not maintainable and liable for rejection.
6. I have perused the grounds urged in the petition and also the impugned order of the trial Court, which is challenged in this petition.
7. It is no doubt true as contended by the petitioner herein that the FDP Court has already allowed the application filed by the petition, even share is also defined and preliminary decree is also passed in her favour and said preliminary decree is not yet challenged by any of the respondents. In this petition since only the order for sale of the properties passed by the trial Court is challenged, this Court will not discuss about the preliminary decree passed in favour of the petitioner. It is a matter to be considered by the FDP Court and as submitted by the learned counsel for respondents, respondents may challenge the said preliminary decree. But now, in this petition, the point 8 to be considered is, whether the order of trial Court for sale of property is in accordance with law or not?
8. As per Section 2 of the Partition Act, 1893, when there is no possibility of division of properties as per the shares defined in the preliminary decree or if the sale and distribution of the proceeds of the said sale are more beneficial to the parties, then the Court can pass order for sale of the properties. But in the case on hand, the Court Commissioner has submitted his report mentioning that the property can be divided as per the shares of the parties and he has also given the sketch along with his report. But the appointment of Court Commissioner and his report is four months earlier to the application filed by the petitioner for impleadment and also FDP Court passing preliminary decree in favour of the petitioner. No reasons are adopted by the trial Court in ordering for sale of the properties when the Commissioner has given the report that the property can be divided between the parties. Under these 9 circumstances and also in view of the introduction of new fact that after submission of Commissioner's report, petitioner has come on record by impleadment and preliminary decree has been passed defining her share, in my opinion, the order of trial Court for sale of property is not sustainable in law.
9. Hence, writ petition is allowed and the order of FDP Court for sale of property is hereby set aside. The FDP Court shall consider the matter afresh giving opportunity to both the parties and also taking into consideration the subsequent event of allowing the application of petitioner herein and passing preliminary decree in her favour defining her share and thereafter, pass appropriate orders in accordance with law. However, since the suit is for partition and separate possession, the FDP Court shall take up the matter on priority basis and to dispose of the same as early as possible, but not later than six months from the date of receipt of this order.
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High Court Registry is hereby directed to send the copy of this order to the concerned Court immediately.
Sd/-
JUDGE bkp CT-SG