Karnataka High Court
Sri Guru Alias Gururaj S/O Rachappa ... vs Smt Nalini W/Om Suresh Ambli on 1 October, 2024
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
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RFA No. 100241 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 1ST DAY OF OCTOBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE MR. JUSTICE C M JOSHI
REGULAR FIRST APPEAL NO. 100241 OF 2023
BETWEEN:
SRI GURU ALIAS GURURAJ
S/O. RACHAPPA BIJAPUR
AGED ABOUT 67 YEARS,
OCC. BUSINESS
R/AT. DESHPANDE NAGAR,
HUBBALLI,
DIST. DHARWAD 580020.
...APPELLANT
(BY SRI. MRUTYUNJAY TATA BANGI, ADVOCATE)
AND:
Digitally signed
by
YASHAVANT
NARAYANKAR
Location: HIGH 1. SMT NALINI
COURT OF
KARNATAKA W/O. SURESH AMBLI
AGED ABOUT 66 YEARS,
OCC. H/W
R/AT. AKKAMAHADEVI RAOD,
NEAR AMBLI,
HOSPITAL VIJAYPUR,
DIST VIJAYPUR 586101.
2. SRI ISHANNA
S/O. RACHAPPA BIJAPUR
AGED ABOUT 72 YEARS,
OCC. BUSINESS
R/O.DESHPANDE NAGAR,
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RFA No. 100241 of 2023
HUBBALLI,
DIST. DHARWAD 580020.
3. SRI MALLIKARJUN
S/O. RACHAPPA BIJAPUR
AGED ABOUT 70 YEARS,
OCC. H/W,
R/AT. HOUSE NO 62
DESHPANDE NAGAR
HUBBALLI,
DIST DHARWAD 580020.
...RESPONDENTS
(BY SRI. SHIVARAJ S. BALLOLI, ADVOCATE FOR R2;
SMT. ARCHANA A. MAGADUM, ADVOCATE FOR R3;
R1-SERVED AND UNREPRESENTED)
THIS REGULAR FIRST APPEAL IS FILED UNDER SEC. 96
OF CPC., PRAYING TO SET ASIDE THE JUDGMENT PASSED BY
THE IIND ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL
MAGISTRATE FIRST CLASS, HUBBALLI, IN F.D.P NO.89/2016
DATED 14.03.2023 AND DISMISS THE FDP AND BY ALLOWING
THE PRESENT APPEAL IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE MR. JUSTICE C M JOSHI
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RFA No. 100241 of 2023
ORAL JUDGMENT
The suit amongst the siblings commenced in the year
2015 has persisted, because of the dispute over final decree,
notwithstanding the preliminary decree, which is not
challenged, declaring that each of them would be entitled to
1/6th share in a residential property bearing CTS
No.162/19C, Byahatti Post, Deshapande Nagar, Hubli [the
subject property]. In fact, this Court must observe that the
appellant has purchased 1/6th share of one of the siblings
while the third respondent has purchased 1/6th share of
another sibling. Consequentially, the appellant and the third
respondent are entitled to 1/3rd share in the subject
property, and the first and second respondents are entitled
to 1/6th share each in the same.
2. The suit is in O.S.No.173/2015 is decreed on
31.08.2016 declaring shares as aforesaid, and the plaintiff -
the first respondent has commenced final decree
proceedings in FDP No.89/2016 on the file of the II-
Additional Senior Civil Judge, Hubli [for short 'the civil
Court'], which is decreed by the impugned judgment and
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final decree dated 14.03.2023. The civil Court has accepted
the commissioner's report dividing the subject property in to
six parts with each measuring 10 X 120 feet and the first
and second respondents taking the extent in the flanks. The
Scheme of Partition in terms of which the final decree is
drawn reads as under:
3. It is obvious that this Scheme of partition is not
equitable or convenient. This Court during the course of
hearing of this appeal, had called upon the parties to file
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valuation reports, and in the light of the valuation reports
filed, this Court has further enabled the appellant and the
third respondent to offer their valuation and willingness to
buy out the shares of the others in terms of such valuation.
The appellant and the third respondent have placed on
record such valuation and it remains beyond dispute that
the third respondent has offered the highest viz.,
Rs.1,50,00,000/- for 1/6th share. The third respondent has
also offered to buy out the shares of the appellant and the
first and second respondents paying to the appellant a sum
of Rs.3,00,00,000/- and to the first and second respondents
a sum of Rs.1,50,00,000/- each.
4. The appellant, the first respondent and the
second respondent's wife and son are present as identified
by the respective counsels. The second respondent's wife
and son are present because, he is confined to bed after a
road accident. The appellant, who is present with his wife
and son, submits that he may be permitted to make his
submission without the assistance of his learned counsel
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without elaborating reasons. This Court has permitted the
appellant to make his submission to ascertain his intention.
5. The appellant is categorical that he is willing to
transfer his 1/3rd share in the subject property to the third
respondent if the third respondent pays Rs. 3,00,00,000/-
within a reasonable time and if the third respondent seeks a
enlarged period of time to pay this amount, he must be
called upon to pay 10 -15% more than what is now offered.
Sri. Shivaraj Ballolli makes a similar submission on behalf
of the second respondent and this is also accord in with the
statement made by the first respondent, who was present in
Court on 27.09.2024. The first respondent, as is recorded by
this Court on 27.09.2024, is categorical that she would sell
her share to any family member, who is willing to make the
highest offer.
6. These submissions narrow down the question for
consideration viz., the reasonable time that the third
respondent must be allowed to purchase the shares of the
appellant and the first and second respondents and the
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consequences that must be, if he does not complete the sale
transaction within the time that is allotted by this Court.
Smt. Archana Magadum, the learned counsel for the third
respondent, is heard in the light of these questions. The
leaned counsel submits, on instructions from the third
respondent, that he may be allowed a period of one year to
complete the sale transaction but with liberty, at his
complete discretion, to find a buyer who can offer more than
his offer, and if agreeable to the appellant and to the first
and second respondents, to explore the possibility of jointly
developing the subject property.
7. Sri. Shivaraj Ballolli, the learned counsel on
behalf of the second respondent as also on behalf of the
appellant, submits that this Court must ensure that the
subject property is brought to sale immediately if the third
respondent fails to complete the sale transaction or facilitate
a third party transfer for a price higher than what he has
offered. There are also some submissions on payment of
property tax arrears asserting that the property tax in a sum
of Rs.8,00,000/- is due as of today and that this must be
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paid only by the appellant and the third respondent because
they are in possession of the two premises in the Subject
Property.
8. The rival submissions are considered in the light
of the proposition that when a property cannot be
partitioned and must be brought to sale, the family members
must have the first choice to buy out the share of the others
and if there is a failure, then the property must be brought
to sale in public auction. The third respondent has made the
highest offer, which is acceptable to all the parties, but he
will have to mobilize, in terms of this offer, Rs.6,00,00,000/-
to pay to the appellant and the first and second respondents
as is indicated above. This Court is of the view that he must
be granted reasonable time while also ensuring that the
others are not denied the advantage of escalation in price
during this time.
9. This Court, given the circumstances, is of the
considered view that the third respondent must be allowed a
year from today to complete the transaction but subject to
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paying apart from Rs.1,50,00,000/- to the first and second
respondents and Rs.3,00,00,000/- to the appellant an
enhanced sum at the rate of 12% of this price if he requires
a further period of three months after the expiry of the one
year period observing that if he is not able to pay the
amounts with this period of one year and three months, he
cannot oppose either the appellant or the first/second
respondents initiating proceedings under Order XXI of the
Code of Civil Procedure, 1908 [for short 'the CPC'] to bring
the subject property to sale in execution of the final decree
to be drawn pursuant to this judgment.
10. However, it would be needless to observe that
notwithstanding the final decree that shall be drawn
pursuant to this order, it would be open to the parties,
without prejudice to the rights in terms of the Final decree,
to explore the possibilities of developing the subject property
for common benefit but solely at the discretion of the third
respondent clarifying that if he is not persuaded to believe
that it would be in the common interest, the others will not
be entitled to insist for the same. This clarification must
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rule out all possible disputes because of some offer made.
In the light of the afore, the following:
ORDER
The appeal is allowed in part and the
impugned judgment and final decree dated
14.03.2023 is modified in the following terms.
[a] The third respondent will be entitled to
purchase the share of the appellant's
1/3rd share in the subject property for
Rs.3,00,00,000/- [Rs. Three Crore rupees
only] and the first and second
respondent's respective 1/6th share at
Rs.1,50,00,000/- [Rs. One Crore Fifty
Lakh rupees only] each.
[b] The third respondent will be entitled to
make these payments to the
corresponding parties and obtain
appropriate discharge and transfer of
interest within a period of One [1] year
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from today. If the appellant is unable to
complete the afore within this period, he
is allowed next three months subject to
payment of escalation at 12% of the value
now agreed.
[c] If the third respondent fails to make the
payments within the timelines as
aforesaid, the appellant and the first/
second respondents will be at liberty to
initiate proceedings under Order XXI of
the CPC to bring the subject property to
sale in public auction and that action will
be in terms as are found appropriate by
the Executing Court at that stage. The
third respondent shall not oppose such
recourse.
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[d] The property taxes should be borne by the
parties to the present proceedings in
proportion to their shares.
The Office is directed to draw Final Decree
accordingly, and there shall be no costs.
Sd/-
(B.M.SHYAM PRASAD)
JUDGE
Sd/-
(C.M.JOSHI)
JUDGE
YAN / ct : cmu
