Karnataka High Court
Sri S P Suresh vs Late Smt Vinoda Satish on 10 December, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 24.09.2025
Pronounced on : 10.12.2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF DECEMBER, 2025 R
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.11957 OF 2025 (GM - CPC)
BETWEEN:
SRI S.P.SURESH
S/O LATE S.P SATISH
AGED ABOUT 63 YEARS
NO.5, JAKKASANDRA BLOCK
BENGALURU - 34
REPRESENTED BY HIS GPA
HOLDER AND WIFE,
MRS.RENU SURESH.
... PETITIONER
(BY SRI K.G.RAGHAVAN, SR.ADVOCATE A/W
SMT.SINDHU V., ADVOCATE)
AND:
1 . LATE SMT. VINODA SATISH
AGED ABOUT 86 YEARS
W/O LATE S.P.SATISH
NO.5, JAKKASANDRA BLOCK
KORMANGALA LAYOUT
BENGALURU - 34
(DIED ON 27.11.2024)
2
SMT. S.P.POORNIMA
AGED ABOUT 59 YEARS
W/O SRIKANTARADHYA M.G.,
NO.393, 8TH CROSS, 9TH MAIN,
4TH BLOCK, ST BED KORMANGALA
BENGALURU - 34
(SINCE DEAD THROUGH HER LR'S)
2 . SRI. SHARAN SHRIKANT
S/O. LATE POORNIMA
AGED ABOUT 45 YEARS
RESIDING AT NO.5,
JAKKASANDRA BLOCK,
7TH CROSS, KORAMANGALA
BENGALURU - 560 034.
3 . SRI. VARUN SHRIKANT
S/O.LATE POORNIMA
AGED ABOUT 41 YEARS
RESIDING AT NO.5,
JAKKASANDRA BLOCK,
7TH CROSS, KORAMANGALA
BENGALURU - 560 034.
4 . SRI M.G.SHRIKANT ARADYA
AGED ABOUT 70 YEARS
NO.393, 8TH CROSS,
9TH MAIN, 4TH BLOCK,
ST BED KORAMANGALA
BENGALURU - 34.
5 . SMT. SUJAYA MAHESH
AGED ABOUT 65 YEARS
W/O. S.V.MAHESH
NO.532, 7TH CROSS,
4TH BLOCK, KORAMANGALA
3
BENGALURU - 560 034.
... RESPONDENTS
(BY SRI UDAYA HOLLA, SR.ADVOCATE A/W
SRI AKSHAY KUMAR JAIN, ADVOCATE FOR R2 TO 4;
SRI KIRAN S.JAVALI, SR.ADVOCATE A/W
SRI GIREESHA KODAGI, ADVOCATE FOR R-5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH AND
SET ASIDE THE CONCLUDING PORTION OF THE ORDER DATED
14.11.2024 (ANNEXURE-A) PASSED BY THE XVIII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-10) IN FDP
181/2011 WHEREIN IT HELD THAT THE PETITIONER'S CLAIM FOR
MESNE PROFITS WILL BE CONSIDERED ONLY AFTER COMPLETION
OF THE AUCTION PROCESS; SET ASIDE THE ORDER DATED
26.11.2024 (ANNEXURE-A) PASSED BY THE XVIII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-10) IN FDP
181/2011 WHEREBY THE PETITIONER'S BID FOR PURCHASE OF
SCHEDULED PROPERTY IS NOT ACQUIESCED; DIRECT THE TRIAL
COURT TO DETERMINE THE PETITIONER'S SHARE IN THE RENTAL
INCOME FROM THE SCHEDULE PROPERTY IN ACCORDANCE WITH
LAW; DIRECT THE TRIAL COURT TO CONDUCT THE PROCEEDINGS
FOR SALE / AUCTION OF THE SCHEDULE PROPERTY STRICTLY AS
PER THE PROVISIONS OF PARTITION ACT, 1893.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 24.09.2025, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
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CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner - the respondent in FDP.No.181/2011, is at the
doors of this Court seeking slew of prayers, which are as follows:
"(i) Issue a writ of certiorari or any other writ, order, rule or
direction to quash and set aside the concluding portion
of the Order dated 14 November 2024 (ANNEXURE - A)
passed by the XVIII Additional City Civil and Sessions
Judge, Bengaluru (CCH-10) in FDP 81/2011, wherein it
held that the Petitioner's claim for mesne profits will be
considered only after completion of the auction process.
(ii) Set aside the order dated 26.11.2024 (ANNEXURE - A)
passed by the XVIII Additional City Civil and Sessions
Judge, Bengaluru (CCH-10) in FDP 81/2011 whereby the
Petitioner's bid for purchase of Schedule Property is not
acquiesced.
(iii) Direct the Trial Court to determine the Petitioner's share
in the rental income from the Schedule Property in
accordance with law;
(iv) Direct the Trial Court to conduct the proceedings for sale
/ auction of the Schedule Property strictly as per the
provisions of Partition Act, 1893.
(v) Issue such others or directions that this Hon'ble Court
may deem fit to pass in the facts and circumstances of
the case, including costs, in the interests of justice and
equity."
2. Facts in brief, germane, are as follows:
Before embarking upon the consideration of the issue on its
merit, I deem it appropriate to notice the ranking of the
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protagonists in the subject petition. The petitioner is the
respondent in the FDP proceedings and respondent Nos.2 to 4 are
the legal representatives of deceased respondent No.2, who were
represented as petitioner Nos.2 (a) to (c) before the concerned
Court, as the second respondent one Smt. S.P.Poornima dies during
the pendency of final decree proceedings and respondent No.1 is no
more and respondent No.5 is one of the class I legal heir. The first
respondent is the wife of one late S.P.Satish; S.P.Satish dies in the
year 1989 leaving behind the said Smt. S.P.Poornima and two
children including the present petitioner. A suit is instituted in
O.S.No.6294/2003 seeking partition and separate possession by the
respondents herein. The said suit comes to be decreed in the year
2006 granting 1/4th share of the scheduled property to the
petitioner. The petitioner challenges the said judgment and decree
before this Court in R.F.A.No.1288/2006, which comes to be
dismissed on 05.07.2011. The present petitioner challenges the
said dismissal before the Apex Court in SLP (C) No.29718/2011,
which also comes to be disposed, in terms of an order dated
09.12.2011. It is thereafter, the respondents institute final decree
proceedings in FDP.No.181/2011 to enforce the preliminary decree
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passed in O.S.No.6294/2003 and demarcate the shares of the
parties.
2.1. The concerned Court appoints one E. Kiran Kumar as the
Court Commissioner (hereinafter referred to as 'the first Court
Commissioner'). The first Court Commissioner issues a notice
proposing to inspect the property on 24.11.2011. He visits the
property and submits a report on the inspection so conducted. The
concerned Court in terms of its final order dated 12.11.2013, on
receipt of the report from the first Court Commissioner orders
demolition of the existing building on the schedule property.
Against the said final order, the respondents prefer an appeal in
RFA.No.1988/2013 contending that the property cannot be divided
by metes and bounds and sought that the schedule property be sold
by public auction. The petitioner files another appeal in
RFA.No.70/2014, contending otherwise.
2.2. On 11.01.2021, a coordinate bench of this Court sets
aside the final order in FDP.No.181/2011 and restores the final
decree proceedings on the file of the concerned final decree Court
for reconsideration. On such reconsideration, the first Court
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Commissioner was made to give his evidence concerning the
schedule property. In the final decree proceedings, an application
in I.A.No.7 invoking Section 2 of the Partition Act, 1893 (hereinafter
referred to as 'the Act') is filed by the deceased first respondent
seeking sale of the schedule property and to distribute the sale
proceeds among the sharers of the schedule property. The said
application comes to be allowed by the concerned Court on
05.09.2022, directing sale of the schedule property and distribute
the sale proceeds among all the co-sharers. The petitioner did not
file any objections to the said application. The concerned Court on
24.11.2022, issues a sale proclamation and sale warrant to
schedule the sale of the property in public auction on 20.01.2023
and court sale on 27.01.2023.
2.3. It is the claim of the respondents that the petitioner
though advanced the matter to 21.01.2023, but failed to file any
application seeking leave of the concerned Court in terms of Section
3 of the Act. On 21.01.2023, the petitioner comes with two
applications in I.A.No.8 to reopen the case to lead evidence and
I.A.No.9 for determination of mesne profits arising out of the
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schedule property, under Order XX Rule 18 of the CPC, seeking an
enquiry to be conducted for determining into his share in the
amounts received from the schedule property. Both applications
comes to be allowed by the concerned Court. An enquiry regarding
mesne profits and the share of the petitioner in the mesne profits
derived from the schedule property was completed by producing
necessary documents and evidence.
2.4. When things stood thus, the trial Court appoints Sri
B.T.Girish as the Court Commissioner (hereinafter referred to as
'the second Court Commissioner') upon suggestion of all the
parties. The second Court Commissioner submitted a report that
the guidance value of the property is Rs.13,408 per sq. ft. and the
entire value of the property is Rs.5,36,32,200/-. The concerned
Court passes an order on 14.11.2024, on the report of the second
Court Commissioner by accepting the valuation report of the
schedule property at Rs.5,36,32,200/- and directed to auction the
schedule property with liberty to the co-sharers to purchase the
property in the public auction. Thereafter, respondent Nos.1 and 5
file application in I.A.No.19 under Section 151 of the CPC seeking a
9
direction from the concerned Court to petitioner to vacate from the
schedule property, so that the schedule property can be put to
public auction. The concerned Court held that I.A.No.19 would be
considered only after completion of the auction. The impugned
order dated 14.11.2025, directing that the schedule property be put
to public auction without determining the share of the petitioner by
metes and bounds and the order dated 21.11.2024, which does not
take into consideration the bid amount offered by the petitioner,
has lead the petitioner to knock at the doors of this Court
contending that the applicant seeking relief under Section 3 of the
Act, first preference would be rendered at the hands of the co-
sharer to buy the property and then the public auction can be
resorted to. The matter is heard at that stage.
3. Heard Sri K.G.Raghavan, learned senior counsel along with
Smt. Sindhu V., learned counsel for the petitioner, Sri Udaya Holla,
learned senior counsel along with Sri Akshay Kumar Jain, learned
counsel for respondent Nos.2 to 4 and Sri Kiran S. Javali, learned
senior counsel along with Sri Gireesha Kodagi, learned counsel for
respondent No.5.
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4. This Court owing to the submissions of the parties has
passed certain orders directing a trialogue to resolve the dispute as
the parties were warring siblings. On 11.06.2025, this Court had
passed the following order:
"The petitioner is before the Court calling in question
the action of the concerned Court seeking to put up the
property for public auction.
The property in the case at hand is the share that has
fallen to the respective siblings. The property is a residential
house measuring 50'x80' in Koramangala. The issue is
whether the concerned Court could have put up the property
for public auction in the teeth of Sections 2 and 3 of the
Partition Act, 1893 ('Act' for short).
The learned counsel for the petitioner would vehemently
contend that Section 3 cannot be given a go-bye by the
concerned Court and the co-sharer in a decree of partition is
entitled to the first choice of purchase of the property.
The learning senior counsel Sri Udaya Holla appearing
for one of the respondents would seek to place reliance upon
Section 3(2) of the Act, which permits, if two or more
shareholders severally apply for leave to buy the property,
under Section 3(1), the Court shall order sale of the shares to
the shareholders who offers to pay the highest price above the
valuation made by the Court.
The valuation made by the Court has jumped 3 times,
which began at Rs.6,40,00,000/- and Rs.6,80,00,000/- and
now stands at Rs.7,20,00,000.
The learned senior counsel Sri Kiran S Javali appearing
for one of the respondents would submit that he is ready and
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willing to pay Rs.8,00,00,000/- to the said property.
Therefore, the issue now boils down to Section 3(2).
Since all the contesting parties are siblings, I
deem it appropriate to direct them to have a trialogue
between them and arrive at a figure, which is the
mandate of Section 3(2) as well. In the event of
nothing coming out from the aforesaid observation, the
matter would be considered on its merit.
List the matter on 20.06.2025.
Interim order, granted earlier, is extended till the next
date of hearing."
(Emphasis supplied)
No settlement arrived at and therefore, the matter is reserved
for its orders.
5. Sri K.G.Raghavan, learned senior counsel for the petitioner
would vehemently contend that the order dated 14.11.2024,
deferring the adjudication for determination of the share in the
mesne profits of the schedule property is in violation of the order
dated 02.03.2023, passed on I.A.No.9, which had previously
allowed and directed adjudication of the share of the petitioner from
the mesne profits arising out of the property. Order XX Rule 18 (2)
of the CPC directs that where the suit is for partition and separate
possession of the immovable property and to determine the share
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in the rents or mesne profits of the schedule property, the
concerned Court has power to pass such decree if the partition or
separation cannot be conveniently made and without any further
inquiry order for determination of the shares of the co-sharers,
which has accrued on the mesne profits. Learned senior counsel
would submit that the concerned Court has determined ¼th share
in the mesne profits of the schedule property. If a co-sharer who
expresses interest in the schedule property, in terms of Section 3 of
the Act, the concerned Court ought to have obtained willingness
from other co-sharers to participate in the auction.
6. He submits that the petitioner has indivisible right to
purchase the property and therefore, the concerned Court
exercising powers conferred under Section 3 of the Act, if the co-
sharer who has approached the concerned Court under Section 2 of
the Act seeking sale of the schedule property and distribution of the
sale proceeds amongst the sharers, instead of partition and
separate possession which cannot be conveniently made by metes
and bounds, shall not be entitled to purchase the buy such schedule
13
property of other co-sharer in terms of Sub-section (1) of Section 3
of the Act.
7. Per contra, Sri Udaya Holla, learned senior counsel
appearing for respondent Nos.2 to 4 submits that the subject
matter of the present petition was also a subject matter in RFA
No.1988/2013 and the coordinate bench held that the scheduled
property cannot be divided by metes and bounds and therefore, it
should be brought to sale on auction. Therefore, the subject
petition is filed by the petitioner to obstruct the process of public
auction. The concerned Court has deferred to determine the mesne
profits of the petitioner until completion of the auction proceedings.
The trial Court directed the second Court Commissioner that in
terms of the order dated 26.11.2024, a public auction be held and
also issued notice of public auction of the scheduled property, which
was slated to be held on 22.04.2025.
8. At that point in time, the impugned orders are challenged
by the petitioner, without even being filed any application seeking
to purchase the property. The trial Court while exercising its power
under Section 3 of the Act granted liberty to the parties to purchase
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the property on the basis of the valuation or even the higher price.
The petitioner never registers his name. Section 3 of the Act
contemplate that the sale of the property which cannot be divided
by metes and bounds and if it cannot be divided, the sale of the
schedule property be ordered by the trial Court and distribution of
property should be for the benefit of all the co-sharers of the
property.
9. I have given my anxious consideration made by the
learned senior counsel for the respective parties and have perused
the material on record.
10. In furtherance whereof, the only issue that arises for
consideration is, whether the concerned Court was right in
proceeding to sell the schedule property by way of public auction.
11. To consider the aforesaid issue, it becomes germane to
notice the provisions of the Act. Sections 2, 3, 4, 6 and 7 of the Act
reads as follows:
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"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 application or
applications.
4. Partition suit by transferee of share in dwelling
house.--(1) Where a share of a dwelling house belonging to an
undivided family has been transferred to a person who is not a
member of such family and such transferee sues for partition,
the court shall, if any member of the family being a shareholder
shall undertake to buy the share of such transferee, make a
16
valuation of such share in such manner as it thinks fit and direct
the sale of such share to such shareholder, and may give all
necessary and proper directions in that behalf.
(2) If in any case described in sub-section (1) two or
more members of the family being such shareholders severally
undertake to buy such share, the court shall follow the
procedure prescribed by sub-section (2) of the last foregoing
section.
.... .... ....
6. Reserved bidding and bidding by shareholders.--
(1) Every sale under Section 2 shall be subject to a reserved
bidding, and the amount of such bidding shall be fixed by the
court in such manner as it may think fit and may be varied from
time to time.
(2) On any such sale any of the shareholders shall be at
liberty to bid at the sale on such terms as to non-payment of
deposit or as to setting off or accounting for the purchase-
money or any part thereof instead of paying the same as to the
court may seem reasonable.
(3) If two or more persons, of whom one is a shareholder
in the property, respectively advance the same sum at any
bidding at such sale, such bidding shall be deemed to be the
bidding of the shareholder.
7. Procedure to be followed in case of sale.--Save as
hereinbefore provided, when any property is directed to be sold
under this Act, the following procedure shall, as far as
practicable, be adopted, namely:--
(a) if the property be sold under a decree or order of the
High Court of Calcutta, Madras or Bombay in the exercise
of its original jurisdiction, 5[* * *] the procedure of such
court in its original civil jurisdiction for the sale of
property by the Registrar;
(b) if the property be sold under a decree or order of any
other court, such procedure as the High Court may form
17
time to time by rules prescribe in this behalf, and until
such rules are made, the procedure prescribed in the
Code of Civil Procedure (14 of 1882) in respect of sales in
execution of decrees."
(Emphasis supplied)
Section 2 of the Act deals with power of the Court to order
sale instead of division in partition suit. It holds that whenever, in
any partition suit, the division of property cannot be made
reasonably and conveniently, the sale of the property and
distribution of sale proceeds would be beneficial for all the share
holders, the Court on the request of any such share holder
interested individually or collectively, direct sale of such property
and distribute the sale proceeds to all the share holders. Section 3
of the Act deals with the procedure when the co-sharer undertakes
to buy the schedule property. The concerned Court, on the request
of the co-sharer under Section 2 of the Act, shall put the schedule
property to auction and distribute of the sale proceeds, if the other
co-sharer applies for leave to buy at a valuation the share or shares
of the party or parties asking for a sale, shall order a valuation of
the share or shares in such manner as the case would be and offer
to sell the same to such shareholder at the price so ascertained,
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and may give all necessary and proper directions in that behalf.
Sub-section (3) of Section 3 holds that if no such shareholder is
willing to buy such share or shares at the price so ascertained, the
applicant would be liable to pay all costs that would ensue.
12. These are the interpretations of the afore-quoted
provisions, which are necessary to be noticed to resolve the issue at
the case at hand. For which, driving back to the facts of the case
and the orders of the concerned Court would become necessary.
The concerned Court on 12.11.2013, passes an order to demolish
the existing building on the schedule property in FDP.No.181/2011
for the purpose of division of the share in the scheduled property.
This is called in question by both the petitioner and the respondents
in RFA.Nos.1988/2013 c/w. 70/2014. The coordinate bench in
terms of the judgment dated 11.01.2021, while setting aside the
order dated 12.11.2013, holds that it was difficult to divide the
schedule property by metes and bounds and it is convenient to sell
the scheduled property in public auction and distribute the sale
proceeds among the sharers. The order of the coordinate bench
reads as follows:
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".... .... ....
3. The appellants in RFA No. 1988/2013 have filed an
application for appointment of a Court Commissioner to visit the
subject property and file a report as regards the feasibility of
dividing the subject property by metes and bounds into four
portions. The Final Decree Court has allowed this application
and has appointed Shri Kiran Kumar, an advocate, as the Court
Commissioner. This Court Commissioner has filed his
Report after visiting the Subject property on 24.11.2011.
The Court Commissioner, as referred to in the impugned
order, has opined that the subject property cannot be
divided by metes and bounds into four portions with
access to the road on the northern side because in the
event of such partition each of the parties would get an
extent measuring 12.5 feet East to West and 80 feet
North to South and these extents would not be suitable
for construction of individual residential houses. The
Court Commissioner has recommended a division of the
subject property with each of the parties getting 20 feet
East to West and 50 feet North to South with a 5 feet
passage on the eastern side along the entire length of the
property.
4. The appellant in RFA No. 70/2014, the son, has filed
objections to this Court Commissioner's Report stating inter alia
that the Court Commissioner has not measured the built-up
area and the existing structure could be divided equitably with
¼ undivided share in the sital area being allotted to each of the
stakeholders. On the other hand, the appellants in RFA No.
1988/2013 have contended that the division of the subject
property by metes and bounds would not be feasible and the
subject property must be brought to sale in an auction.
5. The Final Decree Court overruling the submissions
made by the parties as well as the Court recommendations in
the Commissioner's Report has directed demolition of the
existing structure with partitioning of the subject property into
four portions with each of the parties getting 20 feet X 50 feet
with 6 feet passage along the entire length of the property on
the eastern side and the appellant in RFA No. 70/2014 being
given the portion abutting the road on the north.
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6. The learned Counsel for the parties in unison submit
that the Final Decree Court has passed the order for demolition
of the existing structure and for partition of the subject property
amongst the four stake holders as aforesaid without the Court
Commissioner being examined and without opportunity to the
parties to lead evidence in support of their respective stand as
regards the division of the subject property by metes and
bounds with the appellants in RFA No. 1988/2013 specifically
contending that the subject property should be brought to sale
in an auction.
7. Sri Kiran Javali, learned Counsel who appears for the
appellants in RFA 1988/2013 submits that the Final Decree
Court has passed the order in the most unscientific manner
reiterating the appellants' case that the subject property, which
measures 50 feet East to West and 80 feet North to South with
road on its south cannot be partitioned equitably and the
property will have to be brought to sale. Sri Chandranath Ariga,
the learned Counsel for the appellant in RFA No.70/2014,
submits that the subject property could be divided equitably
without even demolishing the standing structure if the built up
area is considered.
8. Parallelly, it is also submitted that the first appellant in
RFA No. 1988/2013, who is the mother, is 84 years old and
appropriate arrangements will have to be made for her
maintenance until the question of whether the subject property
could be divided by metes and bounds or brought to sale is
decided and there is consensus amongst the learned Counsel,
including Sri Girish Kodgi who appears for some of the
appellants in RFA No. 1988/2013, that a sum of Rs.25,000/-
per mensem would be reasonable maintenance with two
children Sri S.P.Suresh and Smt.Sujaya Mahesh contributing
one-third each and the legal representatives of the deceased
daughter, Smt. S.P.Poornima, together contributing the
remaining one-third. There is also consensus that one of the
legal heirs of the deceased daughter Sri Varun Shrikant is in
possession of the premises.
9. The provisions of Section 2 of the Partition Act,
1893 stipulate that when a suit for partition is decreed,
and it appears to the Court that given the nature of the
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property and the number of shareholders an immovable
property cannot be reasonably partitioned by metes and
bounds and sale of the immovable property and
distribution of the sale consideration would be more
beneficial to the shareholders, the Court can, on a
request by the parties, direct sale of the property and
distribution of the proceeds. It is obvious from the
records as well as the submissions by the learned counsel
for the parties that while the mother and the daughters
(including the legal representatives of the deceased
daughter) assert that the subject property cannot be
divided by metes and bounds and therefore should be
brought to sale on an auction, the son asserts that if the
built-up area of the subject property is considered, the
subject property could be divided equitably by metes and
bounds. The Commissioner's report is for division of the
subject property in a particular manner with 5 feet
common passage along the entire length of the property
on the eastern side.
10. In the light of the provisions of the Partition Act
and the rival contentions as regards the partitioning of
the subject property by metes and bounds, the Final
Decree Court should have extended an opportunity to the
parties to lead evidence in support of their respective
stands. Further, in the facts and circumstances of the
case, unless there is consensus for demolition of the
existing structure, there could not have been an order for
demolition. For the foregoing, the impugned order dated
12.11.2013 cannot be sustained and the proceedings
should be restored to the Final Decree Court for
reconsideration, and in the light of the consensus as
regards the maintenance to be paid to the mother, the
first appellant in RFA No. 1988 of 2013, appropriate
orders in these regards would also be just. As such the
following:
ORDER
[a] The impugned order dated 12.11.2013 passed in FDP No.181/2011 by the learned XVIII Addl.City Civil Judge, Bengaluru is set aside. The Final Decree 22 Proceedings in FDP No. 181/2011 is restored to the board of the Final Decree Court for readjudication. [b] The parties shall appear before the Final Decree Court without further notice on 05.02.2021. The Final Decree Court shall dispose of the proceedings expeditiously in accordance with law within an outer limit of six months from the date of first appearance. [c] The parties as aforesaid shall pay a sum of Rs.25,000/- per mensem to the mother Sri Vinoda Sathish starting from 1st December 2020 (payable on or before 25.01.2021) as maintenance and continue to pay the aforesaid sum until the disposal of the Final Decree Proceedings. They shall also be responsible for meeting the medical expenses, if any and in the event of failure by any, there shall be a charge on the share that they could assert."
(Emphasis supplied) The coordinate bench holds that in terms of Section 2 of the Act, when the scheduled property cannot be divided by metes and bounds, the concerned Court shall direct to sell on an auction, upon the consent of the parties. It also observed that the mother and daughters acceded to sell the property but the son - petitioner herein, is otherwise. The petitioner herein has shown interest that the scheduled property can be divided equitably by metes and bounds. Therefore, the FDP.No.181/2011 stood restored. 23
13. The concerned Court after restoration of FDP.No.181/2011, by the impugned order dated 14.11.2024, passed the following order:
"ORDER ON REPORT OF THE COURT COMMISSIONER This court initially passed order dated 12.11.2013 by accepting report of the Court Commissioner. The said order was challenged before Hon'ble High Court of Karnataka in R.F.A No. 1988/2013 and R.F.A.No. 70/2014. The Hon'ble High Court of Karnataka by order dated 11.01.2021 allowed both files and order passed by this court was set aside with direction to dispose of the proceedings expeditiously. The Hon'ble High Court of Karnataka in said R.F.As in Para No.9 held as under.
"The provisions of Section 2 of the Partition Act, 1893 stipulate that when a suit for partition is decreed, and it appears to the Court that-given the nature of the property and the number of shareholders an immovable property cannot be reasonably partitioned by metes and bounds and sale of the immovable property and distribution of the sale consideration would be more beneficial to the shareholders, the Court can, on a request by the parties, direct sale of the property and distribution of the proceeds."
Thereafter, this court by order dated 02.07.2024 directed the both parties to appoint the Court Commissioner for valuation of the suit property. Accordingly they suggested the name of one B.T.Girish Advocate as a Court Commissioner and he was appointed as a Court Commissioner and he filed report by showing valuation of the suit property. Both side submitted no objection to the report of the Court Commissioner. As per the report of the Court Commissioner the valuation of the suit property is Rs.5,36,32,200/-. The petitioner No.1 is mother of petitioner No.2 and 3 and respondent. Petitioners have got 3 shares and respondent has got 1 share in the suit property as per the preliminary decree. The Court Commissioner has valued the land as well as existing building. Looking to the nature of the suit property and it's measurement it is not feasible to devide the suit property by meets and bounds for convenient 24 use and enjoyment. In view of the observation of Hon'ble High Court of Karnataka in above said R.F.A. and for purpose of convenient use and enjoyment of suit property this court is of the considered opinion that the suit property shall be sold in public auction and said proceeds/ consideration amount has to be distributed among petitioners and respondent as per decree. In auction proceedings, the petitioners as well as respondent can participate and they can give offer to purchase the suit property and if they are not ready to purchase the suit property then the suit property shall be sold to third person and sale proceeds shall be divided among shares as per the decree.
Hence, I proceed to pass the following:
ORDER Acting under Section 2 of Partition Act, the report filed by the Court Commissioner is accepted the suit property shall be put to auction. Petitioners as well as respondent are at liberty to purchase the suit property on the basis of the valuation submitted by the Court Commissioner or even on higher price. If both parties to the suit are not ready to purchase to the suit property then suit property shall be sold to third party.
For suggesting the name of the Court Commissioner for purpose the auction, time is granted to both side.
The application filed by the petitioners I.A. No. 19 under Section 151 CPC seeking direction to both parties to the suit to vacate the suit property will be considered after auction of the suit property. Both parties to the petition shall not cause obstruction to auction process.
Likewise the contention of the respondent to award mesne profits will also be considered only after completion of auction process.
Call on 21/11/24 Sd/-14/11 25 XVIII Addl. City Civil Judge, Bengaluru.
(Emphasis added) The concerned Court relying on the report of the second Court Commissioner, holds that the property being sold in the public auction is beneficial to all the share holders. Again on 21.11.2024, the concerned Court observed that the petitioner has not shown bonafides to buy the scheduled property in auction and therefore, passed the following order:
Advocate for respondent filed memo stating that they are ready to purchase suit property.
Advocate for petitioner no.1 and 3 filed memo stating that they are willing to purchase the suit property for Rs.6,40,00,000/-.
Respondent has not shown consideration amount, hence he shall show the same by next date.
Call on 26.11.2024.
Sd/-21/11/2024 XVIII ACC & SJ, Bengaluru."
These afore-quoted orders have driven the petitioner to this Court in the subject petition.26
14. The auction of the property was scheduled to be held on 22.04.2025. As observed at that juncture, the petitioner approaches this Court in the subject petition. This Court had directed a trialogue between the parties to arrive at a settlement. The settlement did not come about. Therefore, the matter is taken up on its merit. The petitioner now projects that he is ready and willing to purchase the property. It becomes germane to notice that pursuant to the order passed by this Court on 11.01.2021 in R.F.A.No.1988/2013 c/w R.F.A.No.70/2014, whereby the Final Decree Proceedings were restored on the file of the trial Court, all the parties were given the opportunity to lead evidence. On 05.09.2022, the respondent No.1 who was then alive, files an application under Section 2 of the Act seeking for an order of sale of the property and distribution of the sale proceeds among the sharers of the schedule property. The petitioner does not even appear as he was not residing in this country. Throughout the proceedings, he remains absent, his objections were taken as nil.
15. It is then the trial Court passes an order allowing I.A.No.7 and orders the sale of the property in public auction and for the sale 27 of proceeds divided and thereby issued a sale notice. The concerned Court on 24.11.2022, issued a sale proclamation and sale warrant to hold the public auction on the spot on 20.01.2023. The petitioner then coming to know of the sale, advances the matter by appearing before the Court on 21.01.2023, did not file any application seeking leave of the Court to purchase the property in terms of Section 3 of the Act. Thereafter, the Final Decree Proceedings were pursued by the petitioner for determination of mesne profits only. The petitioner does not challenge any of the orders that are passed hitherto, putting the property to public auction.
16. On 02.07.2024, the concerned Court directs both the parties to appoint a Court Commissioner for valuation of the subject property. One Advocate Sri.B.T.Girish is appointed and the valuation of the property is made at Rs.5,36,32,200/-. Both the petitioner and the respondents say no objection to the Commissioner's report. Thereafter, the concerned Court on 14.11.2024 directed measurement of the property and holds that it was not feasible to divide the property by metes and bounds for convenient use and enjoyment. Therefore, the property was sought 28 to be put to public auction. The respondents then file a memo before the concerned Court that they are willing to purchase the property at Rs.6,40,00,000/-. Even then, the concerned Court was of the opinion that if the property was put to sale, it would be beneficial to all the sharers. The respondents have no objection to put the property to sale by public auction. The petitioner has a problem. The problem of the petitioner has sprung from nowhere. The object of the sale is to get adequate market value of the property so that the proceeds of the sale is distributed amongst all the sharers without any dispute being there. In that light, no fault can be found with the order passed by the concerned Court directing the property to be put to sale on the strength of the report of the Commissioner.
17. Finding no merit in the petition, the petition stands rejected.
Interim order of any kind subsisting, stands dissolved. 29 The concerned Court is directed to take this issue to its logical conclusion within eight weeks from the date of receipt of copy of the order.
Sd/-
(M.NAGAPRASANNA) JUDGE nvj CT:MJ