Writ petition challenging the rejection of an application for equitable distribution of partition property. The court held the lower court order was correct as Sections 2 and 3 of the Partition Act, 1893 cannot be invoked absent a preliminary decree variation.
Writ petition disposed of; prayer for equitable distribution rejected.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 13TH DAY OF AUGUST 2014
BEFORE
THE HON’BLE MR. JUSTICE ANAND BYRAREDDY
WRIT PETITION No.30363 of 2014 (GM-CPC)
BETWEEN:
Shaik Khasim
Since deceased by
Legal representatives
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Petitioners 1 to 7 are All residents of Byatarayanahalli, Bangarpet Taluk, Koalr District.
…PETITIONERS
(By Shri. K. Sreedhar, Advocate)
AND:
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Aged 43 years, Wife of Fayaz Ahmed, Resident of Clock Tower, Darga Mohalla, Kolar – 563 101.
…RESPONDENTS
(By Shri. B. Veerappa, Advocate)
This Writ Petition filed under Articles 226 and 227 of the Constitution of India praying to set aside the order dated 16.6.2014 vide Annexure-D in FDP No.1/2002 on the file of the Junior Civil Judge, KGF., and grant the prayer made in I.A.No.5.
This Writ Petition coming on for Preliminary Hearing in ‘B’ Group this day, the court made the following:
O R D E R
The present petitioner was the judgment-debtor in
a suit for partition. There is a preliminary decree, which is pending in Final Decree Proceedings. The Preliminary decree having been subject matter of challenge in appeal before this court, as well as before the Supreme Court, has been affirmed. It is now that the petitioner has filed an application seeking that there be an equitable distribution and variation of the manner in which the property shall be shared. The court below has
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rejected the same only on the ground that since the preliminary decree does not provide for any such variance, it would not be permissible for the petitioner to invoke Sections 2 and 3 of the Partition Act, 1893 (Hereinafter referred to as the ‘1893 Act’, for brevity) and to seek any such relief though it was contended that Sections 2 and 3 of the 1893 Act would permit such a step being taken. As pointed out by the court below, the final decree could be in terms of the preliminary decree. Therefore, any variance to be applied can only be in the event that the preliminary decree is accordingly varied. In this regard, in the absence of any such variation, it would be impermissible for the petitioner to invoke Sections 2 and 3 of the 1893 Act as if it is a matter at large before the court to mould the decree to suit the convenience of the parties. Therefore, the petitioner is left to his remedies insofar as the impugned order is concerned and no fault can be found with it.
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The petition is accordingly disposed of.
Sd/JUDGE
nv
3 issues framed by the court
Whether a judgment-debtor can invoke Sections 2 and 3 of the Partition Act, 1893 to seek equitable distribution after a preliminary decree in partition suit is affirmed on appeal.
Whether the court below correctly held that seeking variance in the manner of property sharing without a preliminary decree variation is impermissible.
Whether the High Court should set aside the order rejecting the prayer for equitable distribution of partition property.
2 provisions across 2 enactments
Shaik Khasim Legal Representatives
Smt. Khatija Bi
Smt. Sabirajan
Smt. Ameer Bi
Anand Byrareddy
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
