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2008 DIGILAW 298 (KAR)

Allamaprabhu v. Baburao

2008-06-17

B.V.NAGARATHNA, K.L.MANJUNATH

body2008
JUDGMENT This appeal is filed by the plaintiff who had filed O.S. No.205/2002 on the file of the Addl. Civil Judge (Sri.Dn) Jamkhandi, seeking a Judgment and Decree against the defendant / respondents for declaring Sale Deeds dt.12.2.2001, executed by the defendant No.1 in favour of defendant No.2, as illegal, null and void in respect of suit properties and an order of perpetual injunction against defendant Nos. 1 to 6, not to dispossess the plaintiff from the suit properties. The said suit was dismissed by the Trial Court. Aggrieved by the said Judgment and Decree, the plaintiff has filed this Appeal. 2. We have heard the learned Counsel for the appellant. For the sake of convenience, the parties shall be referred to in terms of their status before the Trial Court. 3. According to the plaintiff, defendant No.1 is his younger brother and defendant Nos.2, 3 and 4 are the purchasers of suit lands bearing R.S. No.10/1, measuring 5 guntas; R.S No.11/1, measuring 7.02 acres and R.S. No. 30/3 measuring 06 guntas, in which defendant No.1 has half-share in four-fifth of the said lands. Similarly fifth defendant is also purchaser of lands bearing R.S. No. 14/1, measuring 5.05 Acres; R.S. No. 14/3, measuring 5.05 Acres, and R.S. No. 13/3 measuring 3.27 Acres, in which defendant No.1 has half share in four-fifth of the said lands. Sixth defendant is purchaser of lands bearing R.S. No. 13/1, measuring 13.37 Acres; R.S.No. 11/2 measuring 7.36 Acres in which the defendant No.1 has half-share in four-fifth of the said lands. All the sale deeds were registered on 12.2.2001, before the Sub-Registrar, Mudhol, for a valuable consideration. According to the plaintiff, the three younger sisters of the plaintiffs also sold their shares in the properties to one Siddappa Nagappa Patil, by registered sale deed dt.3.1.2000. Plaintiff had therefore filed O.S,. No. 78/2000, challenging the sale deeds executed by his sisters. 4. Infact, the sisters of the plaintiff had filed O.S. No.285/1989 for partition and separate possession which was decreed and they were allotted 3/15th share and half share out of 4/5th share was allotted to defendant No.1 and the said judgment and decree was upheld by the Hon’ble Supreme Court in S.L.P (Civil) No. 3527/1999 and F.D.P. No. 13/1997, filed by the sisters of the plaintiff is pending. The suit schedule properties are part of the final decree proceedings. The suit schedule properties are part of the final decree proceedings. When the situation was thus, the plaintiff filed O.S.No. 205/2002 on the file of the Court of Additional Civil Judge (Sr. Dn) Jamakhadi, sitting at Mudhol, District Bangalkot. Being aggrieved by the dismissal of the said suit the plaintiff has filed this appeal. The plaintiff had also filed several other suits, against the defendants and others, the details of which are not relevant for the disposal of this Appeal. 5. Suit summons were served on all the defendants. Defendant Nos.1, 5 and 6 filed Written Statement admitting the relationship between the defendant No..1 and the plaintiff, and that defendant Nos.2 to 6 are purchasers of the suit land by sale deeds dt. 12.2.2001 and 13.2.2001 and that they are in peaceful possession and enjoyment of the suit properties purchased from defendant No.1, pursuant to a decree of partition and therefore the suit is not maintainable, as being barred by principles of res judicata. Defendant Nos.2 to 4 adopted the above written statement. 6. Based on the above proceedings, the Trial Court framed 10 Issues, which are as follows : 1. Whether the plaintiff proves the sale deed executed by defendant No.1 in favour of defendants No.2 to 6 is illegal, null and void and not acted upon the plaintiff ? 2. Whether the plaintiff proves that he was in lawful possession and enjoyment of the suit property as on the date of suit ? 3. Whether the plaintiff proves the alleged interference by the defendants? 4. Whether the suit is not maintainable as contended in the W.S. of defendants? 5. Whether the suit of the plaintiff is barred by limitation ? 6. Whether the suit is hit by the principles of Res-Judicata? 7. Whether the plaintiff not valued the suit properly and Court fee paid on the plaintiff is incorrect ? 8. Whether the defendants are entitled for the compensatory cost of Rs.5000/-? 9. Whether the plaintiff is entitled for the relief as sought sought for? 10. What order or decree? 7. In support of the plaintiff’s case, plaintiff was examined as PW-1 and he got marked Ex. P-1 to P-12 and defendants examined defendant No.5 as DW-1 and got marked Ex.D-1 to D-6. The trial Court after appreciating the evidence adduced by both the parties held Issue Nos. 10. What order or decree? 7. In support of the plaintiff’s case, plaintiff was examined as PW-1 and he got marked Ex. P-1 to P-12 and defendants examined defendant No.5 as DW-1 and got marked Ex.D-1 to D-6. The trial Court after appreciating the evidence adduced by both the parties held Issue Nos. 1,2,3,5,6 and 9 in the negative and on Issue No.4, 7, the trial Court held in the affirmative and on Issue No.8, it was partly held in the affirmative and on the suit of the plaintiff was dismissed with costs. As against the Judgment and Decree passed by the Court below the plaintiff has filed the present appeal. 8. It is the contention of the learned Counsel for the plaintiff / appellant that, the trial Court failed to notice that the alienation of lands by defendant No.1 in favour of defendant Nos. 2 to 6 had taken place during the pendency of the final decree proceedings and that, as a coparcener of the joint family property, the plaintiff had a right to question the sale under Sec.3 of the Partition Act, he had a legal right to purchase the share of defendant No.1 in the suit lands and therefore, the defendant No.1 was not right in alienating his share to defendant Nos.2 to 6. It is further contended that, the plaintiff’s sisters had relinquished their right, title and interest in the suit schedule properties by Release Deed dt. 20.7.2006 and therefore, defendant No.1 ought to have sold his share of the suit schedule properties to the plaintiff in terms of Sec.3 of the Partition Act. It is further contended that, the trial Court erred in holding that the suit was not maintainable. 9. Having heard the learned Counsel for plaintiff, the following points arise for our consideration in this appeal :- 1. Whether the trial Court was right in dismissing the suit of the plaintiff as not maintainable ? 2. Whether the plaintiff has a right to seek setting aside of the sales made by defendant No.1 in favour of defendant Nos.2-6 ? 10. At the outset, it is necessary to reiterate that, in the suit filed by the plaintiff’s sisters namely O.S. No. 285/1989, for partition and separate possession, the Hon’ble Supreme Court, upheld the share of the parties including that of the plaintiff and defendant No.1 herein. 10. At the outset, it is necessary to reiterate that, in the suit filed by the plaintiff’s sisters namely O.S. No. 285/1989, for partition and separate possession, the Hon’ble Supreme Court, upheld the share of the parties including that of the plaintiff and defendant No.1 herein. DW-1 has stated that the plaintiff / defendant No.1 and their sisters had made divided the lands and they were in peaceful possession and enjoyment of their share and the appellant No.1 sold the same to defendant Nos.2 to 6 under registered sale deed. Once the share of the parties are determined it is permissible in law to alienate a share in the properties which fall to a coparcener under the partition and may other coparcener has no right to challenge such an alienation, as he would have received his own share at the partition. Hence, in our view the trial Court has rightly held Issue No.1 and Issue No.4 in the negative and accordingly we answer point No.1 in the affirmative. 11. With regard to the contention of the learned Counsel for the plaintiff that, the trial Court has not appreciated the right of the plaintiff under Sec.3 of the Partition Act, 1893, is concerned, it is necessary to extract Sec.2 and Sec.3 of the said Act. “2. Power of 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 any other special circumstances, 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 sharehoders 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. 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”. 12. Sec.2 is applicable when in a suit for partition, a decree for partition is made and it appears to the Court by reason of the nature of the property to which the suit relates or the number of share holders therein, or any other special circumstance, a division of the property cannot be reasonably or conveniently be made, and a sale of the property and distribution of the proceeds would be more beneficial for the share holders under such a circumstance, the Court if it thinks fit, on the request of the any share holders interested, individually or collectively, direct a public sale of the property and distribution of the proceeds. 13. Under Sec.3, if in a case the Court is requested under Sec.2 to direct a sale, and any other share holder applies for leave to buy at a valuation, the share or shares of the other party or parties asking for a sale, the Court shall order valuation of the share or shares and offer to sell the same to such share holder at the price so ascertained and give all proper and necessary directions in that behalf. Therefore, Sec.3 of the Act comes into play only if a public sale has been ordered under Sec. 2 of the Act and not otherwise. 14. Therefore, Sec.3 of the Act comes into play only if a public sale has been ordered under Sec. 2 of the Act and not otherwise. 14. Section 2 of the Act empowers the Court to order sale of a joint family property instead of directing a partition by metes and bounds. After a request for sale is made by one of the sharers, the Court on applying its mind to find out whether the division cannot reasonably or conveniently be made, and that the sale would be beneficial to the shareholders and keeping in mind, the nature of the property to which the suit relates the number of shareholders therein or any other special circumstances concerning the property and the shareholders can order for sale of the suit schedule properties instead of a division of the same. However, what is important is that before ordering the sale of the suit properties, request must be made for public sale under Section 2, in which event, the procedure under Section 3 would then be brought into operation. Therefore, for the operation of Section 3 of the Act, the condition precedent is that the public sale under Section 2 must be requested for by one of the sharers. It follows therefore that only after a co-sharer had applied for a public share of “one moiety or upwards” under Section 2 of the Act, a request for sale amongst the co-sharers only can be exercised under this Section. Therefore, the right to apply under Section 3(1) accrues to a sharer only when a request under Section 2 of the Act is made. As soon as the request for sale is made by shareholder under Section 2 any other co-sharer becomes entitled to make an application under Section 3 for leave to buy a share of the property. Therefore, under Section 3(1) of the Act, a person who has applied for public sale under Section 2 cannot apply for leave to buy under Section 3(1) of the Act. Therefore, under Section 3(1) of the Act, a person who has applied for public sale under Section 2 cannot apply for leave to buy under Section 3(1) of the Act. In the instant case the contention of the learned Counsel for the plaintiff / appellant that, the plaintiff had a right to purchase share of defendant No.1, under Sec. 3 of the Partition Act, is without merit as no public sale was ordered in the final decree proceedings under Section 2 of the Act which would have entitled the appellant to exercise his option under Section 3 of the Act. 15. That apart, the appellant in the instant case is in substance seeking a right of pre-emption by virtue of Section 3(1) of the Partition Act. The right of pre-emption is a right of substitution entitling the pre-emptor, a legal incident to which the sale itself was subject, to stand in the shoes of the transferee in respect of the rights and obligations arising from the sale under which he derived his title. It is in effect, as if in a sale deed, the transferee’s name be erased and the pre-emtor’s name be substituted. The right of pre-emption was founded either in custom or statute or contract. However, the Hon’ble Supreme Court reported in AIR 1996 SC 2146 in the case of SMT. VIJAYALAKSHMI Vs. B. HIMANTHARAJA CHETTY AND ANOTHER has held that the right of pre-emption thought at one point of time recognised for the purpose of observing the integrity of the village, community or implementing the agnatic theory of succession of observing the unity and integrity of the family is now an archaic, feudal and an outmoded right due to industrialisation, diversification of trade and service and mechanization of agriculture etc., The right of pre-emption has now ceased to be a statutory right and is dis-associated from custom or personal law. It is significant to note that when partition suits are filed by the co-sharers, the right of pre-emption will automatically stand extinquished because Joint Family status and preservation of integrity of property and exclusion of strangers from the family and their joint possession is frustrated by the mere fact of filing a suit for partition and separate possession by the sharers. 16. 16. It is reiterated that, when once the shares of the coparceners are determined in a suit, and thereafterwards the properties are allotted by metes and bounds to the respective sharers, there cannot be one more proceeding by way of a separate suit or application challenging the sale made by any co-sharer in respect of the properties allotted to him at a partition. The status of joint family vis-a-vis the coparceners comes to an end once the partition and separate possession is decreed by a competent Court of law and no coparcener or sharer, who has participated in the said proceeding has any kind of right vis-a-vis the share of another coparcener or in respect of the properties allotted to the other coparcener. In fact once partition takes place between the parties and their respective shares are determined, the coparceners are no longer joint in food and worship, but they are in the status of tenants in common only for the purpose of separate possession by metes and bounds and once that also takes place and possession is handedover to the respective sharers, all rights of the parties to the partition come to an end. We accordingly answer Point No. 2 in the negative. 17. In view of what is observed above, the trial Court rightly dismissed the suit of the plaintiff, seeking a declaration that the sale deeds executed by defendant No.1 in favour of defendant Nos.2 to 6 as null and void and keeping in mind the fact that the suit schedule properties in the instant case are lands, in our view, a division of the properties could be easily and conveniently made and therefore, it would not have been necessary to order for the public sale of the suit properties. Assuming for a moment that the plaintiff had such a right, the powers under Sections 2 and 3 of the Partition Act could not have been exercised in the instant case as the suit schedule properties are lands and not dwellings or buildings which would have been difficult to divide. Further the trial Court has rightly concluded that, plaintiff was also not in possession of the suit schedule properties, which means that there were separate possession by metes and bounds and defendant No.1 was at liberty to alienate the suit schedule properties to defendant Nos.2 to 6. 18. Further the trial Court has rightly concluded that, plaintiff was also not in possession of the suit schedule properties, which means that there were separate possession by metes and bounds and defendant No.1 was at liberty to alienate the suit schedule properties to defendant Nos.2 to 6. 18. The appeal is therefore devoid of merits and is hereby rejected at the stage of admission.