Allowed

Sri Tilok Chand v. Sri P Narayana

Karnataka HC16 Dec 2021WP/54751/2018

Case brief

AI extract

What is this about?

High Court allowed writ petition quashing order rejecting impleadment of petitioners in final decree proceedings. Court held trial court acted arbitrarily by ignoring department of sale. Petitioners permitted to seek equitable partition.

What did the court decide?

Impugned order set aside; petitioners impleaded as corespondents in FDP No. 27/2005; I.A.Nos. 20 and 21 allowed; trial court directed to dispose matter within six months.

Sri Tilok Chand Vs Sri P Narayana — Partition | Karnataka HC (2021)

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W.P.NO.54751/2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF DECEMBER 2021

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BEFORE

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THE HON’BLE MRS JUSTICE K.S.MUDAGAL

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WRIT PETITION NO.54751 OF 2018 (GM-CPC)

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BETWEEN:

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SRI TILOK CHAND S/O LATE BABU LAL AGED ABOUT 59 YEARS

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SRI. KIRAN RAJ S/O LATE BABU LAL AGED ABOUT 53 YEARS

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SRI. MOOL CHAND S/O LATE BABU LAL AGED ABOUT 46 YEARS

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SMT. PAVAN KUMARI W/O LATE DEVARAJ AGED ABOUT 46 YEARS

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SMT. MONA D D/O LATE DEVARAJ AGED ABOUT 25 YEARS

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SMT DIVYA D D/O LATE DEVARAJ AGED ABOUT 21 YEARS

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ALL ARE R/AT NO.119, ASHOKA ROAD, LASHKAR MOHALLA, MYSURU - 570 001

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… PETITIONERS (BY SRI.P.D.SURANA, ADVOCATE )

W.P.NO.54751/2018

AND:

SRI P NARAYANA S/O LATE PUTTAIAH, SINCE DEAD BY LRS

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1 (A) SMT. PADMA NARAYANA, W/O LATE P NARAYAN AGED ABOUT 80 YEARS, R/AT NO.3, NEW NO.165 II CROSS, MANASARA ROAD, INDIRANAGAR, MYSURU-570 010

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1 (B) SMT. VINUTHA RANI D/O LATE P NARAYAN, AGED ABOUT 53 YEARS R/AT NO.3, NEW NO.165, II CROSS, MANASARA ROAD, INDIRANAGAR, MYSURU-570010

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1 (C) SMT. MAMATHA UMESH D/O LATE P NARAYAN, AGED ABOUT 58 YEARS R/AT NO.1, “CHAND”, 5^TH MAIN, PARAMAHAMSA ROAD, YADAVAGIRI, MYSURU - 570 020

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1 (D) SRI.GANESH BABU S/O LATE P NARAYAN, AGED ABOUT 63 YEARS, R/AT NO.4/B, UPSTAIRS, DURGADEVI TEMPLE STREET, NAZARABAD MOHALLA, MYSURU – 570 010

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1 (E) SMT. INDUMATI D/O LATE P NARAYAN, AGED ABOUT 60 YEARS, R/AT NO.CH-77, “INDUSRI” 5^TH MAIN, SARASWATHIPURAM, MYSURU - 570 009

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THE COMMISSIONER MYSORE URBAN DEVELOPMENT AUTHORITY,

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W.P.NO.54751/2018

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JHANSILAKSHMI BAI ROAD, MYSURU - 570 005 3. SMT.ANASUYA W/O SRI.SUBRAMANYA, AGED ABOUT 78 YEARS R/AT NO.1063/102, F-18, 8^TH CROSS, II MAIN, VIDYARANYAPURAM, MYSURU - 570 008 4. SMT.KAMALAMMA W/O SRI. NARAYANAPPA, MAJOR, R/AT NO.2001/1 ANESAROT BEEDHI, DEVARAJ MOHALLA, MYSURU-570 001 5. SMT. LEELAVATHI W/O LATE N.C.RAME GOWDA, MAJOR, R/AT NELAMANE, PANDAVAPURA, SRIRANGAPATNA TALUK MANDYA – 571 439 SINCE DEAD BY LR’S 5 (A) SRI.SHIVADATTA S/O LATE N.C.RAMEGOWDA AGED ABOUT 61 YEARS 5 (B) SRI.RAVIDATTA S/O LATE N.C.RAMEGOWDA AGED ABOUT 51 YEARS 5 (C) SMT.BHAYALAKSHMI D/O LATE N.C.RAMEGOWDA AGED ABOUT 59 YEARS 5(D) SMT.DHANALAKSHMI D/O LATE N.C.RAMEGOWDA AGED ABOUT 54 YEARS 5(E) SMT.SUBBALAKSHMI D/O LATE N.C.RAMEGOWDA AGED ABOUT 51 YEARS

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W.P.NO.54751/2018

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5(F) SMT.ROHINI D/O LATE N.C.RAMEGOWDA AGED ABOUT 49 YEARS

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RESPONDENT NOS.5(A) TO 5(F) ARE RESIDENTS OF NELAMANE VILLAGE PANDAVAPURA TALUK MANDYA DISTRICT

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SRI.P.SUBRAMANYA S/O LATE PUTTAIAH, AGED ABOUT 77 YEARS R/AT NO.365/5 DURGADEVI TEMPLE STREET, NAZARBAD, MYSURU-570010

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… RESPONDENTS

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(BY SRI.SHARATH GOWDA G.B., ADVOCATE FOR R2; SMT.ARCHANA MURTHY P, ADVOCATE FOR R3; SRI.VINAY N, ADVOCATE FOR SRI.MANMOHAN P.N. ADVOCATE FOR R6; VIDE ORDER DATED 20.02.2020 BRINGING LRS OF R4 IS DISPENSED WITH; VIDE ORDER DATED 20.02.2020 SERVICE OF NOTICE TO R1(B) HELD SUFFICIENT; R1(C) AND R1(E) ARE SERVED; VIDE ORDER DATED 09.02.2021 SERVICE OF NOTICE TO R1 (A AND D) HELD SUFFICIENT; VIDE ORDER DATED 15.11.2021 NOTICE TO R5(C TO F) IS DISPENSED WITH; R5(A) AND (B) ARE SERVED)

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THIS W.P. IS FILED UNDER ARTICL 227 OF CONSTITUION OF INDIA, PRAYING TO QUASH ORDER DTD 01.11.2018 MADE ON I.A.NO.20 AND I.A.NO.21/2018 IN FDP NO.27/2005 ON THE FILE OF COURT OF FIRST ADDITIONAL SENIOR CIVIL JUDGE AND C.J.M. AT MYSURU VIDE ANNX-H.

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THIS WP COMING ON FOR FURTHER HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

W.P.NO.54751/2018

O R D E R

“Whether the order Annexure-H rejecting the applications of the petitioners to implead them as corespondents in F.D.P.No.27/2005 is arbitrary and illegal?” is the question involved in this case.

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Respondent No.6 filed O.S.No.243/1990 before the Principal Senior Civil Judge, Mysuru against his brother P.Narayana and others for partition and separate possession of his share in certain properties shown in schedule A and B in the plaint.

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This petition is concerned with item No.2 of schedule-B property in the said suit. Item No.2 is the site bearing No.294 situated at Siddartha Layout, Mysuru measuring 40ft. X 80ft. The said suit came to be decreed on 25.07.2000. The plaintiff and the first defendant were awarded 7/15^th share each and their sister was awarded 1/15^th share in item Nos.1 and 2 of schedule-B properties.

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W.P.NO.54751/2018

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The plaintiff filed F.D.P.No.27/2005 seeking final decree in pursuance of the said preliminary decree. Pending F.D.P.No.27/2005, defendant No.1 died and his legal representatives were brought on record. Respondent Nos.1(a) to 1(e) are the legal representatives of the said P.Narayana.

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Pending those proceedings, the first defendant P.Narayana sold property to one S.R.Nagalakshmi under registered sale deed AnnexureC dated 19.08.1991. The legal representatives of S.R.Nagalakshmi in turn sold the said property to one K.V.Radhakrishna and B.V.Manjunath. The said K.V.Radhakrishna and B.V.Manjunath sold the property to petitioner Nos.1 to 3 and their brother Devraj, who is no more now, under registered sale deed Annexure-E dated 22.08.2013.

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It appears having sold that, both decree holders and judgment debtors in FDP No.27/2005 sought the sale of plaint schedule-B item No.2 property and to share the proceeds of the same. The fact that

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W.P.NO.54751/2018

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property was already sold was not brought to the notice of the trial Court. The trial Court appointed a Commissioner to auction the said property.

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The petitioners claim that on the auction notice published in Star Mysore Newspaper, they came to know about the order. Therefore, they filed applications to implead them as respondents in the final decree proceedings and to defer the auction sale. The applications were contested by respondent No.6.

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The trial Court on hearing both side, by the impugned order rejected the said applications on the ground that the petitioners are the purchasers pending lis. The trial Court further held that the remedy of the petitioners is to initiate separate proceedings to recover the share of respondent No.1.

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The main reason for the trial Court to pass

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such orders is that sale in favour of the petitioners is hit by Section 52 of the Transfer of Property Act, 1881 (‘the TP Act’ for short). It is no doubt true that since the sale

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W.P.NO.54751/2018

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in favour of the petitioners is hit by Section 52 of the TP Act, plea of bonafide purchasers for value without notice is not open to them. However, the fact remains that neither respondent No.1 nor the decree holders brought to the notice of the Court about the sale effected by respondent No.1 and the subsequent sales.

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What would be the right of the purchaser

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pending lis was dealt with by the Hon’ble Supreme Court in the following judgments:

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Thomson Press (India) Ltd Vs Nanak Builders & Investors P. Ltd¹

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Devendra Kumar Sarewgee Vs Purbanchal Estates (P) Ltd.²

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3. Government of Orissa Vs Ashok Transport Agency³

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The ratio of the aforesaid judgments is that though the purchasers pendente lite cannot claim as of

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right to come on record, the Court can exercise discretion to implead them as parties to the proceedings to balance the equities. The right of the assignee or

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1 (2013) AIR SCW 1617

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2 (2006) 9 SCC 199

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3 (2005) 1 SCC 536

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W.P.NO.54751/2018

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purchaser is only confined to the defence of the vendors. It is held that any decree passed against the assignors will be binding on the assignee. But it is not open to the assignee to challenge the decree or widen the execution of the decree.

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The petitioners contention is that the decree holders and their vendors colluded with each other and have brought only this property for sale to make wrongful gain for themselves. They seek to come on record to claim equitable partition as an assignee of defendant No.1. The petitioners do not claim any other defence. Therefore, the petitioners have right to come on record by virtue of Order XXII Rule 10 of CPC and participate in the proceedings subject to the aforesaid limitations. The right of the petitioners is limited to that extent only.

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In the light of the above said facts and circumstances and the judgments of the Hon’ble Supreme Court, it can be said that in rejecting the application the trial Court acted arbitrarily. The

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W.P.NO.54751/2018

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impugned order of the trial Court is unsustainable in law. Therefore, the petition is allowed.

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The impugned order Annexure-H dated 01.11.2018 in F.D.P.No.27/2005 is hereby set aside. I.A.Nos.20 and 21 filed by the petitioners are allowed.

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The petitioners shall be impleaded as corespondents in F.D.P.No.27/2005. The petitioners are entitled to seek only equitable partition in respect of item No.2 of Schedule-B property namely, to allot that property to the share of their assignor. If there is any variation in the value of the property, the same shall be adjusted equitably.

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Both submit that since matter is of the year 2005, the trial Court may be requested to expedite the disposal of the matter.

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In view of the facts and circumstances stated above, the trial Court is requested to dispose of the matter as expeditiously as possible at any rate within six months from the date of receipt of copy of this

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W.P.NO.54751/2018

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order. Both parties shall co-operate for the early disposal.

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Sd/JUDGE

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pgg

Sri Tilok Chand v. Sri P Narayana

Case brief

What is this about?

What did the court decide?

Sri Tilok Chand v. Sri P Narayana

Case brief

What is this about?

What did the court decide?

What the court decided

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