D.N. Nagesh vs D.S. Nanjundaiah (Since dead, represented by L.Rs. D.N. Nanda and Others) and Others

Ravi Malimath, J.—The respondent No. 1/Defendant No. 1 filed an application seeking permission to sell his share of property in order to celebrate the marriage of his daughter in a suit filed for partition and separate possession by the respondents/plaintiff. The trial Court by the impugned order permitted the respondent No. 1/defendant No. 1 to sell his share of the property m Survey No. 748/2 to the extent of 45 guntas and in Survey No. 1316/C2 and 1316 to the extent of 3 acres 22 guntas and was also directed to furnish accounts with regard to the expenses of marriage and also the sale of the properties and its sale consideration Hence the present petition by the plaintiff.

The learned Counsel appearing for the petitioner contends that the impugned order is bad in law and is liable to be set aside. He submits that the share of the defendant No. 1 alone could be permitted to be sold and not the other extent of lands, since the suit for partition and separate possession is still pending.

Learned Counsel appearing for the respondent submits that Survey No. 748/2 to the extent of 45 guntas has been sold since the date of the impugned order. Hence the Writ Petition does not survive for consideration. So far as Survey No. 1316/02, and 1316 are concerned, the properties have not yet been alienated but however agreements of sale have been entered into.

Heard Counsels.

So far as the permission granted by the trial Court to sell the share of property of respondent No. 1/defendant No. 1 bearing Survey No. 748/2 to the extent of 45 guntas of tend is concerned, the Writ Petition has become infructuous as the said property has already been sold by the Mm. The petitioner''s contention so far as the validity or otherwise should be determined at the stage of the trial. More over, the trial Court imposed condition so far as furnishing of accounts with regard to the expenses of marriage and else sale of the properties and its consideration. Hence, the interest of the petitioner so for as the sale stands protected to that extent. Hence, the Writ Petition requires to be rejected so far as Survey No. 748/2 is concerned.

So far as the permission granted to alienate Survey No. 1316/C2 and 1316 are concerned, it is submitted that there is only an agreement to sale and the said property has not been sold, The sale of the property was for the purpose of the marriage of the 1st defendant and the marriage has been concluded. The very purpose of seeking the sale would not survive any more. Hence, the Writ Petition requires to be allowed so far as Survey No. 1316/02 and 1316 are concerned.

With the above observations, I pass the following:

ORDER

i) The Writ Petition so far as Survey No. 748/2 to the extent of 45 guntas is concerned has become infructuous and dismissed as such.

ii) The order dated 25.08.2003 passed in O.S. No. 172/2001 by Additional Civil Judge (Sr. Dn.) Mandya is set aside to the extent of permission being granted to alienate Survey No, 1316/C2 and 1316 are concerned.

iii) The contentions of the petitioner so far as the right of the petitioner to alienate and all other contentions are kept open for determination.

The Writ Petition is disused off accordingly.