PUTTANANJAMMA Vs. HANUMAMMA AND ORS.

JUDGEMENT

(1.) The appellant/plaintiff filed a suit for partition and separate possession of her share in the suit schedule property. On contest, the suit was decreed on 12.3.1982 holding that the plaintiff is entitled for half (1/2) share in the suit schedule property. The defendants filed RA No.18/1982 before the I Additional Civil Judge, Mysore. By the order dated 28.2.1990, the share of the plaintiff was modified holding that she is entitled to 2/5th share in the suit property. The plaintiff filed an appeal in RSA No.932/1991 before the Hon'ble High Court of Karnataka, wherein by the judgment dated 16.12.1997, the share of the plaintiff was modified holding that the plaintiff/purchaser is entitled to 7/12th share, while confirming the rest of the order.

(2.) In the interregnum, before the First Appellate Court, the defendant filed an application u/s.4 of the Partition Act, 1893, holding that he is entitled to purchase the share of the second defendant and therefore, the plaintiff was entitled to receive the value of her share. The application was allowed. The share allotted to the plaintiff was valued by the First Appellate Court in the said order. Subsequent to the judgment and decree passed in RSA No.932/1991, the plaintiff insisted a fresh valuation on the ground that the value made in the year 1993 would not be proper and the value has to be fixed afresh. The order was passed on 21.1.2000. Overruling the said objection of the plaintiff while directing the 4th defendant to deposit the value of the property as fixed by the Hon'ble High Court in RSA No.932/1991, the order dated 21.1.2000 was challenged in Civil Revision Petition No.1703/2000, wherein by the order dated 15.1.2001 a fresh valuation was ordered. Pursuant to the order of the Hon'ble High Court, a memo came to be filed by the plaintiff for appointing a Commissioner for valuation of 7/12th share and a Commissioner was also appointed for valuing the property. The commissioner submitted his report valuing the said building site as Rs.9,28,200 and house tiled portion at Rs.64,600/-, sheet house Rs.1,40,760/- and held that the value in all is Rs.11,33,560/-, 7/12th of the share of the plaintiff would be Rs.6,61,243/-.

(3.) Sri Yoganarasimha, learned Senior Counsel appearing for the appellants counsel submits that the impugned order is bad in law and liable to be set aside. His first contention is that an application u/s.4(1) of the Partition Act is not maintainable before the First Appellate Court. That firstly, such an application can be filed only at the time of drawing up of the final decree. The question of making an application pending adjudication of a preliminary decree would not arise for consideration. The second submission is that the application could be entertained only if the property in question is a dwelling house and that the share has been transferred to a person who is not a member of such a family. The material on record would indicate that the appellant is a member of the family. Therefore, her share cannot be purchased by the defendant. In the absence of the right of the defendant to purchase the share of the plaintiff, he is entitled for possession of the property by metes and bounds. He further contends that in the order of the learned Single Judge in RSA No.932/1991 there is a categorical reference in para 4 of the judgment that the application filed u/s.4 of the Partition Act ought not to have been entertained by the First Appellate Court. Consequently, it is argued that when the application itself is not maintainable before the court, all proceedings that have ensued subsequent to the said application are null and void. They cannot be acted upon. They are opposed to the provisions of law. Being opposed to the provisions of law, there cannot be a sustainable order u/s.4(1) of the Partition Act. Resultantly, the properties decreed would have to be divided by metes and bounds. The question of the defendant purchasing the share of the plaintiff would not arise for consideration.