- 1 - HC-KAR NC: 2025:KHC:53050 WP No. 21924 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF DECEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY WRIT PETITION NO. 21924 OF 2022 (GM-CPC) BETWEEN: 1. HEDWIG REGO SINCE DECEASED AMENDED AS PER ORDER DATED 18.08.2025 LRs OF THEIR DECEASED ARE ON RECORD AS PETITIONER NO.2 RESPONDENTS 2, 3 , 4(DECEASED) 2. CANDIDA REGO AGED ABOUT 47 YEARS D/O LATE DENZIL CHARLES REGO R/A 5/33, ROSEWOOD CRESCENT LEANYER, NT 0812, AUSTRALIA. REPRESENTED BY THEIR POWER OF ATTORNEY HOLDER MR. DONALD D'SILVA AGED ABOUT 63 YEARS R/A 5C-221, KALYANA NAGAR 3RD BLOCK BANGALORE - 560 043. …PETITIONERS (BY SRI RAVI JAGAN, ADV.) AND: 1. SRI D. PRAKASH KUMAR AGED ABOUT 41 YEARS S/O LATE DEIVASIKAMANI R/A NO.23, PRAKRUTHI FARM ANGALAPURA VILLAGE BANGALORE - 560 077. 2. MARK REGO AGED ABOUT 52 YEARS S/O LATE DENZIL CHARLES REGO R/A NO.23/3, REST HOUSE CRESCENT BANGALORE - 560 001. Digitally signed by NANDINI M S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:53050 WP No. 21924 of 2022 3. LYNDSAY WATTS AGED ABOUT 48 YEARS D/O LATE DENZIL CHARLES REGO R/A 220, AUBURN DRIVE DARTMOUTH NS, CANADA ALSO RESIDENG AT NO.23/3 REST HOUSE CRESCENT BANGALORE - 560 001. 4. MR. ALLAN REGO SINCE DECEASED AMENDED AS PER ORDER DTl18.08.2025 THE LRs OF THEIR DECEASED ARE LAREADY ON RECORD AS PETITIONER 2 RESPONDENT 2, 3 & 5. 5. MR. PAUL REGO AGED ABOUT 54 YEARS S/O LATE DENZIL CHARIES REGO RESIDING AT NO.439, 14TH CROSS 'A' BLOCK, VIJAYA NAGAR 3RD STAGE, MYSORE - 570 017. …RESPONDENTS (BY SMT. D. BHUVANESHWARI, ADV., FOR R-1; SRI ANAND GOMES, ADV., FOR R-2, R-3 & R-5; V/O DTD:18.18.2025, P-2, R-2, R-3& R-5 ARE TEATED AS LRs OF DECEASED R-4; (ADVOCATE FOR R-2 & R-3 FILED A POWER OF ATTORNEY) THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DTD 28.09.2022 ANNEXURE-K, PASSED ON IA U/S 4 OF PARTITION ACT, IN FDP NO.25014/2018 BY XVIII ACCJ, MAYOHALL, BANGALORE AND ALLOW THE PRAYER MADE BY THE PETITIONERS IN THE APPLICATION THEY HAD MADE U/S 4 OF THE PARTITION ACT ANNEXURE-K. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY - 3 - HC-KAR NC: 2025:KHC:53050 WP No. 21924 of 2022 ORAL ORDER 1. Petitioners are before this Court in this writ petition filed under Article 227 of the Constitution of India with a prayer set- aside the order dated 28.09.2022 passed on the IA filed by the petitioners under Section 4 of the Partition Act, 1893 in FDP No.25014/2018 by the Court of XXVIII Addl. City Civil Judge, Mayo hall, Bengaluru. 2. Heard the learned counsel for the parties. 3. Petitioners herein, who are decree holders in OS No.25278/2016, which was filed seeking partition and separate possession of the suit schedule property which is a dwelling house, have initiated final decree proceedings in FDP No.25014/2018, which is pending consideration before the Court of XXVIII Addl. City Civil Judge, Mayo hall, Bengaluru. Respondent Nos.1 to 4 in FDP No.25014/2018 are the judgment debtors in OS No.25278/2016. It appears that during the pendency of the final decree proceedings, respondent No.1 herein had purchased the share of the judgment debtor Nos.1 and 2 under two separate registered Sale Deeds. It appears that respondent No.1 herein was impleaded as party - 4 - HC-KAR NC: 2025:KHC:53050 WP No. 21924 of 2022 respondent No.5 in FDP No.25014/2018. Application under Section 4 of the Partition Act, 1893, was filed on behalf of the petitioners herein in FDP No.25014/2018, with a prayer to direct respondent No.1 herein to sell the shares of judgment debtor Nos.1 and 2 purchased by him to the petitioners at the value to be determined by the Court. The said application was opposed by respondent No.1 herein by filing objections. The Trial Court vide the order impugned has rejected the application. Being aggrieved by the same, the petitioners are before this Court. 4. It is not in dispute that respondent No.1 herein is a stranger and not a member of the family of the parties to the suit in OS No.25278/2016, out of which, FDP No.25014/2018 arises. During the pendency of the final decree proceedings, respondent No.1 herein, who is respondent No.5 in the final decree proceedings has purchased the shares allotted to judgment debtor Nos.1 and 2 under the preliminary decree passed in OS No.25278/2016. Section 4 of the Partition Act, 1893, reads as follows:- "4. Partition suit by transferee of share in dwelling-house.—(1) Where a share of a - 5 - HC-KAR NC: 2025:KHC:53050 WP No. 21924 of 2022 dwelling-house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition, the court shall, if any member of the family being a shareholder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder, and may give all necessary and proper directions in that behalf. (2) If in any case described in sub-section (1) two or more members of the family being such shareholders severally undertake to buy such share, the court shall follow the procedure prescribed by sub-section (2) of the last foregoing section." 5. From a reading of the aforesaid provision of law, it is abundantly clear that if a member of a family, being a shareholder makes an application to buy the share of a transferee, who has purchased the share from other members of the family, the Court shall make a valuation of such share of the transferee in the manner it thinks fit and direct the sale of such share to the member of the family, who is a shareholder. In the case on hand, respondent No.1 herein, who has - 6 - HC-KAR NC: 2025:KHC:53050 WP No. 21924 of 2022 purchased the shares of judgment debtor Nos.1 and 2 has offered to sell the said two shares to the petitioners herein for a total sum of Rs.1,39,00,000/- and on the other hand, he has offered to purchase the two shares of the petitioners herein at 99,00,000/-. The onus to value the shares of the transferee for the purpose of enabling the member of the family, who is shareholder in the property to purchase the same is on the Court. The Trial Court has failed to appreciate this aspect of the matter and has observed that petitioners are at liberty to purchase the share from respondent No.1 herein/transferee at the rate quoted by him and if not agreeable, the petitioners are at liberty to sell their shares and wash off their hands. This approach of the Trial Court is erroneous. Taking into consideration the offer made by respondent No.1 herein and also after collecting necessary material regarding valuation of the property in question, the Trial Court should have valued the share of respondent No.1/transferee and directed sale of said share to the petitioners who have filed application under Section 4 of the Partition Act, 1893. Under the circumstances, the order impugned cannot be sustained. Accordingly, the following order:- - 7 - HC-KAR NC: 2025:KHC:53050 WP No. 21924 of 2022 6. The writ petition is allowed. The impugned order dated 28.09.2022 passed on IA filed by the petitioners under Section 4 of the Partition Act, 1893 in FDP No.25014/2018 by the Court of XXVIII Addl. City Civil Judge, Mayo hall, Bengaluru, is set- aside and the matter is remitted to the Trial Court to consider the said application afresh in the light of observations made herein above. 7. It is needless to state that the Trial Court shall pass orders on the application as expeditiously as possible but not later than a period of three months from the date of receipt of a copy of this order. Sd/- (S VISHWAJITH SHETTY) JUDGE DN List No.: 1 Sl No.: 38