Allowed

Shri. Shailappa Gurubasappa Budihal v. Smt. Rajma W/O. Abdulsab Bhavikatti

Karnataka HC5 Dec 2022RFA/4019/2013

Case brief

AI extract

What is this about?

Appeal by purchasers challenging final decree in partition suit. High Court held the decree court misdirected itself by refusing equitable partition without proper valuation. Appellate court set aside the decree, remitting the suit for valuation of all properties to safeguard purchasers' interest.

What did the court decide?

Impugned order of Final Decree Court set aside; case remitted to appoint registered valuer and determine 1/8th share value across all properties for equitable allotment.

Shri. Shailappa Gurubasappa Budihal Vs Smt. Rajma W/O. Abdulsab… — Partition | Karnataka HC (2022)

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RFA No. 4019 of 2013

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 5^TH DAY OF DECEMBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE R.NATARAJ REGULAR FIRST APPEAL NO. 4019 OF 2013 (FDP)

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BETWEEN:

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SHRI. SHAILAPPA GURUBASAPPA BUDIHAL, AGE: MAJOR, OCC: AGRICULTURE, R/O: RAKKASAGI, TQ: MUDDEBIHAL.

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SUNITA @ SANGAVVA, W/O SUBHAS TALIKOTI, AGE: MAJOR, OCC: AGRICULTURE, R/O NEAR GOURISHANKAR GARAGE, INFRONT OF BUS STAND, HUNGUND, TQ: MUDDEBIHAL.

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…APPELLANTS

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(BY SRI. MRUTYUNJAYA S.HALLIKERI, ADVOCATE)

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AND:

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SMT.RAJMA, W/O. ABDULSAB BHAVIKATTI SINCE DECEASED BY HER LR

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KHAJESAB S/O ABDULSAB BHAVIKATTI SINCE DECEASED BY HER LR’S

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SMT.HUSAINBI W/O KHAJESAB BHAVIKATTI, AGE: 52 YEARS, OCC: HOUSEHOLD WORK, R/O.KUMBARGALLI, HUNGUND.

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HUSAINSAB S/O KHAJESAB BHAVIKATTI, AGE: 36 YEARS, OCC: BUSINESS, R/O. KUMBARGALLI, HUNGUND.

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RFA No. 4019 of 2013

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ABDULSAB, S/O KHAJESAB BHAVIKATTI, AGE: 52 YEARS, OCC: BUSINESS, R/O. KUMBARGALLI, HUNGUND.

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MOHAMMADSAB, S/O KHAJESAB BHAVIKATTI, AGE: 28 YEARS, OCC: BUSINESS, R/O. KUMBARGALLI, HUNGUND.

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MAMATAJBEGUM, D/O KHAJESAB BHAVIKATTI, AGE: 27 YEARS, OCC: HOUSEHOLD WORK, R/O. KUMBARGALLI, HUNGUND.

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SAIYYADSAB, S/O KHAJESAB BHAVIKATTI, SINCE DECEASED, R1 TO R5 AND R7 ARE LR’S ARE ALREADY ON RECORD.

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SHAINAZBEGUM, D/O KHAJESAB BHAVIKATTI, AGE: 24 YEARS, OCC: HOUSE HOLD WORK, R/O. KUMBARGALLI, HUNGUND.

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…RESPONDENTS

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(BY SRI. SHIVARAJ S.BALLOLI, SRI RAMESH I.ZIRALI AND SRI. SANDESH P.NADAGER, ADVOCATES FOR R1; SRI. MRUTYUNJAY TATA BANGI, ADV.FOR R2 TO R5 AND R7; R1 TO R4 AND R7 ARE TREATED AS LR’S OF DECEASED R6)

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THIS R.F.A. IS FILED UNDER SECTION 96 R/W ORDER XLI RULE 1 OF C.P.C., AGAINST THE JUDGMENT AND DECREE DATED 11.12.2012 PASSED IN FDP NO.12/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE, HUNGUND, ALLOWING THE PETITION FILED UNDER ORDER XX RULE 18 OF C.P.C. THIS APPEAL COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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RFA No. 4019 of 2013

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JUDGMENT

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The defendant Nos.2 and 3 in FDP No.12/2006 on the file of the Senior Civil Judge, Hungund have filed this appeal challenging the order dated 11.10.2012.

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The concluded facts leading to filing of FDP No.12/2006 are that, a suit in O.S.No.121/1993 was filed for partition and separate possession of the deceased plaintiff's share in the suit schedule properties. The suit schedule properties were land bearing Sy.Nos.430/2, 430/3 and 180/2 of Hungund and a residential property bearing CTS No.585 of Hungund. The defendant Nos.2 and 3 in FDP No.12/2006 were purchasers of 3 acres 1 gunta in Sy.Nos.430/2 and 430/3 from defendant No.1. The trial Court decreed the suit and declared that the deceased plaintiff is entitled to 7/8^th share in the suit properties and the defendant Nos.2 and 3 were entitled to 1/8^th share of their vendor (defendant No.1) in Sy.Nos.430/2 and 430/3. This was assailed by the defendant Nos.2 and 3 in RFA No.152/1996. A Division Bench of this Court in terms of the judgment dated 13.06.2001, allowed the appeal insofar as the finding of the trial Court on Issue No.7 and held that the defendant Nos.2 and 3 are entitled for an equitable partition in

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RFA No. 4019 of 2013

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respect of 1/8^th share of their vendor in all the suit schedule properties. Thereafter, FDP No.12/2006 was filed. A Commissioner was appointed who submitted his report demarcating the 1/8^th share of the vendor of the defendant Nos.1 and 2 in all the suit schedule properties. The defendant Nos.1 and 2 failed to file their objections to the Commissioner report and ultimately, the final decree Court held that it is impossible to work out equity in favour of the defendant Nos.2 and 3 and hence allotted the share of the vendor of the defendant Nos.2 and 3 in Sy.Nos.430/2 and 430/3 of Hungund. Being aggrieved by the same, the present appeal is filed.

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Learned counsel for the defendant Nos.2 and 3 submitted that the final decree Court has perpetuated the very same mistake that was frowned upon by this Court in RFA No.152/1996. He submitted that working out equity is the responsibility of the final decree Court more particularly when the sale in favour of defendant Nos.2 and 3 was held to be proper and valid. Therefore, he contended that the final decree Court could not have dismissed the claim of the defendant Nos.2 and 3 for an equitable partition on the mere ground that the defendant Nos.2 and 3 had failed to file their objections. He

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RFA No. 4019 of 2013

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submitted that an equitable partition could be effected and in the present case defendants No.2 and 3 had purchased the share of deceased defendant No.1 in Sy.Nos.430/2 and 430/3 and therefore, the final decree Court was bound to value all the properties and determine the value of 1/8^th share of defendant No.1 and proportionately allot share to the defendant Nos.2 and 3. In this regard, he relied upon the judgment of the Hon’ble Apex Court in the case of Khemchand Shankar

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Choudhary and another V/s Vishnu Hari Patil and others

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[AIR 1983 SC 124]. He also relied upon the judgment of the Co-ordinate Bench of this Court in Basavanappa V/s Gurappa Ankalkoti and others [ILR 1999 KAR 3994] and contended that the Court was bound to adjust the shares amongst the parties based on the valuation of all the properties.

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Per contra, learned counsel for the legal representatives of the deceased plaintiff submits that the defendant Nos.2 and 3 consistently stonewalled the efforts of the Court to workout an equitable partition. They did not even file objections to the Commissioner’s report. On the contrary, they filed an application before the final decree Court claiming

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RFA No. 4019 of 2013

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that they are entitled for share in all the suit schedule properties. He submitted that the defendant Nos.2 and 3 having not challenged the order rejecting their application for permission to file their objections to the Commissioner report cannot now claim an equitable partition before this Court.

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I have considered the submissions made by the

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learned counsel for the LR’s of the deceased plaintiff as well as the learned counsel for the defendant Nos.2 and 3.

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It is now well settled that a preliminary decree in a suit for partition merely declares the shares to which the parties are entitled to. It is in the final decree proceedings that the actual division of the properties is effected [Shub Karan

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Bubna v. Sita Saran Bubna (2009) 9 SCC 689)] and the

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decree for partition ultimately culminates in the allotment of specific properties against the share of the parties. Therefore, final decree proceedings are nothing but continuation of the proceedings in the suit. If in the event of any sale prior to or after the suit is filed, the purchaser is entitled to work out his remedy by requesting the Final Decree Court to either allot the entire land purchased by him or her to the share of his or her

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RFA No. 4019 of 2013

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vendor and if it is not feasible, to assign the share allotted to his or her vendor to such purchaser, so that the entire alienation is not effaced but is restricted to the right of such vendor.

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In the instant case, there were three items of agricultural properties namely Sy.No.430/2 (3-03 acres) Sy.No.430/3 (3-00 acres) and Sy.No.180/2 (2-30 acres) situate at Hungund and a residential house bearing CTS No.585 situate at Hungund. It is not in dispute that the defendant No.1 had alienated 3-01 acres in Sy.No.430/2 and 430/3 in favour of the defendant Nos.2 and 3. It is not in dispute that the defendant No.1 possessed an undivided 1/8^th share in all the four properties referred above while the deceased - plaintiff possessed the remaining 7/8^th share. It is also not in dispute that the defendant No.1 had not encumbered her share in Sy.No.180/2 and the house bearing CTS No.585. The Division Bench of this Court in RFA No.152/1996 while directing the final decree to work out equity held as follows:

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“7. The decree now passed by the learned Civil Judge is only a preliminary decree and the question whether the Defendants - 2 and 3 are

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RFA No. 4019 of 2013

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entitled for equitable partition in view of the sale deed executed by defendant No.1 in favour of defendant No.2 to the extent of her share in the schedule properties, (i.e., 1/8th share in the schedule properties), has to be considered and decided in the final decree proceedings and wherefore, no issue has been framed regarding the said contention of defendants -2 and 3.

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8. xxxxx

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The learned Civil Judge has proceeded to hold that the defendants - 2 and 3 are not entitled for equitable partition as contended by Defendants - 2 and 3 and accordingly, it is decreed that the 1st defendant may be allotted 1/8th share in R.S.No.430/2 and 430/3 of Hungund and therefore, it is clear that the finding given by the learned Civil Judge at the time of passing of preliminary decree regarding equitable partition as contended by the defendants No.2 and 3 cannot at all be sustained and it is liable to be set-aside. The said contention of defendants - 2 and 3 is kept open to be considered at the time of final decree proceedings and accordingly, we pass the following:

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ORDER

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The appeal is allowed in part. The finding given by the learned Civil Judge on Issue No.7 is

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RFA No. 4019 of 2013

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set-aside and the question as to whether an equitable partition can be effected as sought for by Defendants - 2 and 3 is directed to be considered at the time of final decree proceedings. No costs."

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The aforesaid Judgment has become final and therefore, the Final Decree Court is bound to work out the equity in the manner detailed above. The defendant No.1 had encumbered the land bearing Sy.Nos.430/2 and 430/3 in favour of the defendant Nos.2 and 3 representing that she is the owner of the same and therefore, the defendant Nos.2 and 3 have stepped into the shoes of the defendant No.1 and are entitled to request the Final Decree Court to value the 1/8^th share of the defendant No.1 in all the four items of the suit properties and adjust it against the value of Sy.Nos.430/2 and 430/3 and apportion the 1/8^th share in those two survey numbers or either of them, so that the sale in favour of the defendant Nos.2 and 3 is saved to the extent of the share of the defendant No.1. Since the Final Decree Court has held that the sale by the defendant No.1 in favour of the defendant Nos.2 and 3 is genuine and valid, the interest of such genuine

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10 -

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RFA No. 4019 of 2013

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purchaser deserves to be safeguarded by working out the equities in the manner mentioned above.

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The Final Decree Court instead of doing so has misdirected itself in holding that defendant Nos.2 and 3 have to demonstrate that the legal representatives of the deceased plaintiff possessed excess land to compensate 1/8^th share of the defendant No.1 in the other suit schedule properties. It also erred in law by holding that “considering said fact this Court while answering issue No.1 assigned the reasons that, if Sy.No.180/2 ordered to be allotted to the share of original plaintiff, an extent of land sold by the defendant No.1 would be more than her 1/8^th share, hence it comes to the conclusion that, equitable partition cannot be made as contended by the defendant Nos.2 and 3. If at all, petitioners have got minimum of 10 acres 3 guntas of land definitely it can be possible to effect equitable partition as ordered by Hon’ble High Court of Karnataka in R.F.A.No.152/1996.”

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The Final Decree Court ought to have valued the moiety of the defendant No.1 in all the suit properties and must have adjusted the value of 1/8^th share of the defendant no.1

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RFA No. 4019 of 2013

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against the value of either Sy.Nos.430/2 or 430/3 or both and must have allotted pro-rata share in Sy.Nos.430/2 or 430/3 or both. This would amount to working out equity between the parties as the interest of all the parties is equitably protected. Contrarily and shockingly, the Final Decree Court after holding that equity cannot be worked out between the legal representatives of deceased - plaintiff and the defendant Nos.2 and 3 allotted Sy.No.180/2 and CTS No.585 to the share of the deceased plaintiff, which is thoroughly ill-conceived.

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In that view of the matter, this appeal is allowed. The impugned order passed by the Final Decree Court is set aside. The case is remitted back to the Final Decree Court which shall appoint a registered valuer of immovable properties and obtain the valuation of all the four properties based on their intrinsic potentialities and thereafter determine the value of 1/8^th share of the defendant No.1 in all the properties and then adjust such value against the value of 1/8^th share in the land in Sy.Nos.430/2 or 430/3 or both and consequently identify the 1/8^th share of defendant No.1 and allot that portion to the defendant Nos.2 and 3 to which they are entitled to.

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RFA No. 4019 of 2013

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It is open for the legal representatives of the plaintiff as well as the defendant Nos.2 and 3 to file their objections, if any, to the report of the registered valuer, in which event, the Final Decree Court shall decide such objections in accordance with law after hearing the parties. Since the proceedings are not yet concluded even after the lapse of 16 years, the Final Decree Court is directed to dispose off the proceedings as expeditiously as possible, which shall at any rate not exceed six months from the date of receipt of a copy of this Judgment.

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SD/JUDGE

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CLK-Paragraphs 1 to 6, PMR-Paragraphs 7 to end. List No.: 1 Sl No.: 5

Shri. Shailappa Gurubasappa Budihal v. Smt. Rajma W/O. Abdulsab Bhavikatti

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Shri. Shailappa Gurubasappa Budihal v. Smt. Rajma W/O. Abdulsab Bhavikatti

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