Delhi High Court
Dr. Sukhdev Singh Gambhir vs Shri Amrit Pal Singh Gambhir & Anr. on 13 January, 2009
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 1560/2006
%13.01.2009 Date of decision: 13.01.2009
DR. SUKHDEV SINGH GAMBHIR ....... Plaintiff
Through: Mr. Madhu Mukul Tripathi, Advocate
Versus
SHRI AMRIT PAL SINGH ..... Defendants
GAMBHIR & ANR.
Through: Mr. Sanjay Jain, Sr. Advocate for the
defendant No.1 with defendant No.1
in person.
Ms. Maninder Acharya, Advocate for
the defendant No.2
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? Yes
2. To be referred to the reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
RAJIV SAHAI ENDLAW, J.
1. This order is necessitated on the plea of the defendants No.1&2 that the plaintiff in this suit for partition had in the year 2004 applied for sale of the property under Section 2 of the Partition Act, 1893 and the defendants are entitled to purchase the share in the property of the plaintiff at the valuation of the year 2004. The plaintiff denies having so applied for sale and further contests the position that he is liable to sell his share in the property to the defendants at the valuation of the year 2004. The proceedings in this suit are of relevance for adjudication of the said matter in controversy.
CS(OS) 1560/2006 Page 1 of 16
2. The property subject matter of suit is 13A/6A Western Extension Area, Karol Bagh, New Delhi comprising of a ground, first and a second floor. The plaintiff, on or about 16th August, 1994 instituted a suit in the court of the District Judge, Delhi for partition of the said property inter-alia on the ground that he and his two brothers the defendants to the suit were the owners of 1/3 undivided share each of the said property under the will of their grandmother, that while the plaintiff was in possession of one room on the first floor of the property, which had been kept locked by him after moving out of the property owing to paucity of accommodation, the defendants were in use of the entire remaining property. The plaintiff in the said plaint of 1994 valued his 1/3 share in the property at more than Rs.3 lacs.
3. The defendants filed the written statement inter-alia pleading that the court of the Additional District Judge before whom that suit was filed did not have the pecuniary jurisdiction to try the suit and that the property already stood partitioned between the plaintiff and the defendants as per the oral family settlement of January, 1994 whereunder the entire second floor along with the rights to raise further construction had fallen to the share of the plaintiff and the entire ground floor and the entire first floor had fallen to the share of the defendants.
4. It appears that the learned Additional District Judge before whom the suit was then pending took up the matter of pecuniary jurisdiction first. Vide order dated 5th June, 1997, the learned Additional District Judge whose maximum pecuniary jurisdiction then was of Rs.5 lacs held that since as per the plaintiff's own showing the CS(OS) 1560/2006 Page 2 of 16 value of his 1/3 share was more than Rs.3 lacs, the value of the entire property would be minimum Rs.9 lacs; that the value of a suit for partition for the purposes of jurisdiction had to be the value of the entire property and not just of the share of the plaintiff; that thus the court of the Additional District Judge did not have the pecuniary jurisdiction to entertain the suit. The plaint was accordingly ordered to be returned to the plaintiff.
5. That the plaintiff thereafter in or about February, 1998 instituted the suit for partition before this court. The defendants after service of summons took several adjournments on the plea that the parties were negotiating settlement. Ultimately on 26th September, 2000, the defendants were directed to file the written statement. Thereafter costs were imposed on the defendants for not filing the written statement. The written statement was ultimately filed in or about December, 2002 i.e. after more than four years of the institution of the suit in this court. While reiterating the pleas taken in the written statement filed before the Additional District Judge, in addition it was also pleaded that the plaintiff had not filed the same plaint which was ordered to be returned and as such there was a technical defect in the institution of the suit. An application under Order 7 Rule 11 of the CPC was also filed in this regard.
6. However, in the meanwhile there was a change in the minimum pecuniary jurisdiction of this court and the plaint having been valued at Rs.9 lacs, the suit vide order dated 27th September, 2003 of this court was ordered to be transferred to the District courts.
CS(OS) 1560/2006 Page 3 of 16
7. On 4th December, 2003 both the defendants made statements before the learned Additional District Judge to the effect that without prejudice to their contentions in the written statement and their rights, they admitted the plaintiff to be having 1/3 share in the property and that the mode of partition shall be discussed by the parties and will be reported to the court. The plaintiff also made a statement to the effect that discussions will be held as to the mode of partition. The record reveals that the suit was thereafter adjourned on 2nd January, 2004, 16th January, 2004, 20th January, 2004 on the request of the paties for reporting compromise. On 12th March, 2004 the court recorded that no compromise had been reported and directed the parties to "come out with different proposals of modalities of compromise on 8th April, 2004". On 8th April, 2004 it is recorded that the plaintiff had given a proposal to the defendants with respect to modalities of partition, the defendants to consider the same and in case it is not acceptable to the defendants, the alternative proposal may be filed by the defendants on 3rd May, 2004. On 1st June, 2004, the defendant No.1 and the defendant No.2 gave their respective counter proposals and the matter was adjourned for compromise. Even thereafter on 9th July, 2004, 24th July, 2004, 21st August, 2004, 2nd September, 2004, 14th September, 2004, 17th September, 2004, 12th October, 2004, 29th October,2004, 17th November, 2004, 17th December, 2004, 10th January, 2005, 2nd February, 2005, 7th February, 2005, 9th February, 2005, 11th February, 2005, 10th March, 2005, 21st March, 2005, 11th April, 2005 & 26th April, 2005 the matter was adjourned, mostly on request of the parties to enable them to explore compromise. On 4 th July,2005 CS(OS) 1560/2006 Page 4 of 16 it was recorded by the learned Additional District Judge before whom the suit was then pending that the compromise talks had failed. It appears that the counsel for the plaintiff requested that in view of the statements made on 4th December, 2003, the preliminary decree for partition needed to be passed but the counsel for the defendants opposed the said request. Accordingly, the matter was posted for arguments on the said aspect. The counsel for the defendants contended that the statements on 4th December, 2003 had been made without prejudice to the contentions raised in the written statement and thus preliminary decree could not be passed and issues needed to be cast/framed on the pleas of the defendants in the written statement. It was further urged that the plaint itself was not properly constituted and for which reason an application under Order 7 Rule 11 (Supra) was filed when the suit was pending before this court and there being no valid suit, no statements as on 4th December, 2003 binding the defendants could be recorded.
8. The learned Additional District Judge vide Order dated 29th October, 2005 negatived the aforesaid contentions of the defendants and held the suit to have been validly instituted and on the basis of the statements made on 4th December, 2003 passed a preliminary decree for partition declaring the plaintiff and the two defendants to be having 1/3 share each in the property. A local commissioner was also appointed to partition the property by metes and bounds.
9. The record reveals that the defendants preferred RFA No.836/2005 to this court against the preliminary decree aforesaid. The said appeal was disposed of on 25th May, 2006 on consent terms and in terms whereof the Order of the learned Additional District CS(OS) 1560/2006 Page 5 of 16 Judge passing the preliminary decree was modified. It was held by the division bench of this court that since on the averments in the written statement of the defendants also there was no dispute that the parties had 1/3 share each in the property, the Order passing the preliminary decree declaring each of the parties to be having 1/3 share need not be interfered with. It was further held that since the statements by the defendants on 4th December, 2003 were without prejudice to their rights and contentions, they were entitled to an opportunity to prove their case before the final decree was passed. The defendants were thus given liberty to prove that the property already stood partitioned by the oral family settlement of January 1994 and the parties were in possession of their respective shares and were bound by the said oral family settlement. The division bench of this court appointed another court commissioner to make a report including as to whether the stand of the defendants of oral family settlement was correct or not.
10. However, it appears that an Order dated 20th July, 2006 was made in CS(OS) No.353/2006 pending before this court between the same parties, of transfer of the present suit from the court of the Additional District Judge to this court. Accordingly, the suit was transferred to this court and given the No. CS(OS)1560/2006. It will thus be seen that the lis originated in 1998 if not in 1994, though appears to be of 2006.
11. After the suit was transferred to this court, on 10th October, 2006 the counsel for the defendants stated that the defence of an oral partition as taken in the written statement was not being pressed and a preliminary decree be formally passed in terms of the CS(OS) 1560/2006 Page 6 of 16 order aforesaid of the division bench. Accordingly, with the consent of the parties, a preliminary decree for partition was passed declaring the share of each party in the suit as 1/3 rd each. The role of the local commissioner appointed by the Division Bench was as such confined to only report as to whether the property was capable of partition by metes and bounds. Thereafter, the suit was adjourned from time to time awaiting the report of the local commissioner. On 13th February, 2008 the report had been filed and the counsel for the parties sought time to consider the same and to make submissions thereon.
12. The local commissioner in his report opined that division by metes and bounds was possible only if the property was to be divided floorwise; however there was a difference in the valuation of each floor and which difference could be equalized monetarily; that the parties had been unable to do the same before the local commissioner. The commissioner as such reported that if floorwise division was not worked out, the property was impartible.
13. On 4th September, 2008, the order sheets shows that attempt was made by this court to settle the matter and several suggestions were given; the court felt that the defendants being in possession of the property wanted to prolong the matter and did not want to settle the matter.
14. On 17th September, 2008, the senior counsel for the defendant No.1 stated that the plaintiff had first applied for sale of the property in 2004 and thus only the valuation of plaintiff's 1/3 share in 2004 CS(OS) 1560/2006 Page 7 of 16 was to be determined and the defendant No.1 was willing to pay the same. The counsel for the plaintiff, on the contrary, contended that the plaintiff had never applied for sale in the year 2004 and was entitled to the current value of his share of property, if the defendant No.1was interested in buying the same. The matter was posted for hearing on this limited aspect. The counsels have been heard.
15. Section 2 of the Partition Act, 1893 provides that where it appears to the court that a division of the property cannot reasonably or conveniently be made and that sale of the property and distribution of the proceeds would be more beneficial for all shareholders, the court on the request of any of the shareholders interested individually or collectively to the extent of one moiety or upwards direct sale of the property and distribution of the proceeds. Section 3 further provides that where court is so requested, any other shareholder may apply for leave to buy at a valuation the share of the party asking for a sale and the court shall then order a valuation of the share and offer the said share to the shareholder so applying, at the valuation determined by the court.
16. For the aforesaid provisions to apply it has to be seen as whether the plaintiff has applied within the meaning of Section 2 and whether the defendant No.1 at this stage can exercise the option under Section 3 of the Act.
17. The senior counsel for the defendant No.1 has contended that the plaintiff had applied for sale in the year 2004. The suit was pending before the learned Additional District Judge from 19th CS(OS) 1560/2006 Page 8 of 16 November, 2003. The statements were made by the parties before the learned Additional District Judge on 4th December, 2003 and till 4th July, 2005 the matter was being adjourned for compromise. The defendant No.1 relies upon a proposal of April, 2004 filed by the plaintiff before the court of the Additional District Judge, Delhi. The plaintiff therein had proposed that he be given the ground floor portion of the property against his 1/3 share and the first, second and upper floors be taken by the defendants in lieu of their 2/3 shares in the property; that the parents of the parties can continue to reside on the ground floor during their lifetime; it was further stated that if the said proposal was not acceptable to the defendants "then the suit premises be sold with active participation of the plaintiff and the defendants and the sale realizations be divided equally amongst the plaintiff and the defendants No.1&2........". The plaintiff also stated that he was open to consider any alternative just proposal as may be considered feasible after perusal of the proposal, if any, submitted by the defendants.
18. The aforesaid proposal was filed by the plaintiff in terms of the order dated 12th March, 2004 which was as under:-
"Present - plaintiff in person with Shri Sanjeev Dutta, Proxy Counsel.
Defendant No.2 in person with Shri Anil Gera, Advocate. No compromise has been reported. The defendant had made a statement that they admit that the plaintiff has 1/3rd share in the suit property. The modalities of compromise were to be discussed between the parties. Let the parties come out with different proposal of modalities of compromise on 8.4.2004.
Sd/-
ADJ,Delhi"
CS(OS) 1560/2006 Page 9 of 16
19. After the plaintiff filed the aforesaid proposal the defendants on 8th April, 2004 sought time to consider the same and to give the alternative proposals, if any. The defendants gave their alternative proposals as herein above recorded and after several adjournments ultimately on 4th July, 2005 it was recorded that the compromise talks had failed and the matter was listed for arguments as aforesaid.
20. In my view, the aforesaid proposal of the plaintiff cannot be said to be a request for sale of the property within the meaning of Section 2 of the Partition Act.
21. A request under Section 2 of the Partition Act can be made by a shareholder interested to the extent of one moiety or upwards in the property. Black's law Dictionary, 6th Edition defines moiety as the half of anything. A Division Bench of this court in Faquira v Smt Raj Rani AIR 1984 Delhi 168 has held that the court can only order a sale if requested to do so by the owners of 50 per cent share in the property or more. It was held that problems in partition suits cannot be lost sight of - there is a possibility that the smaller shareholder can be thrown out and rendered homeless by sale - to guard against this possibility, the court is given power to direct a sale only at the instance of the owners of a 50% share or more. We are of course at this stage not concerned with the power of the court independently of Section 2, to order sale of property subject matter of partition and in which sale, the question of defendants having option, as under
Section 3, does not arise. Thus, a shareholder who is entitled to apply under Section 2 is a shareholder having minimum one half share in the property. In the present case the plaintiff admittedly CS(OS) 1560/2006 Page 10 of 16 had only 1/3 share in the property and thus the request even, if any, of the plaintiff having only 1/3 share in the property does not qualify as a request under Section 2 of shareholders interested individually or collectively to the extent of one moiety or upwards.
22. A request under Section 2 has to be a request to the court either orally or in writing. The plaintiff in the present case did not make any request whatsoever to the court. Though the proposal was filed in the court on 8th April, 2004 but the same was in pursuance to the Order dated 12th March,2004. Prior thereto, since 4th December, 2003 when statements of the parties were recorded, the suit had been adjourned several times to enable the parties to amicably compromise the matter. The court finding the parties unable to so arrive at a settlement themselves, on 12th March, 2004 directed the parties to place their proposals before the court. While the plaintiff placed his proposal on the next date i.e. 8th April, 2004 the defendants did not do so. The defendants did not accept the proposal of the plaintiff but gave their own proposals and which were not acceptable to the plaintiff. Ultimately, failure of compromise was recorded by the court.
23. The question which arises is whether such proposal given during compromise talks can be said to be a request within the meaning of Section 2. Under the CPC as amended in 2002, a duty has been cast upon the court to explore the possibility of settlement and alternative means of adjudication of disputes and controversies between the parties under Section 89. Several offers and counter offers may be exchanged between the parties during such parlays. If the parties are permitted to seek order/judgments on what CS(OS) 1560/2006 Page 11 of 16 transpires during the said process, the same will seriously hinder the settlement attempts by the courts. The parties would be loathe to give offers and counter offers lest the same are held against them in the event of the compromise attempts failing. Section 81 of the Arbitration and Conciliation Act 1996 also prohibits the parties from relying upon and or introducing in evidence in arbitral or judicial proceedings, views expressed or suggestions made by the other party in respect of possible settlement of the dispute or admission made by the party in the course of conciliation proceedings. Section 23 of the Indian Evidence Act is to the same effect. The courts ought not to allow such a procedure which would be contrary to the spirit of introduction of Section 89 in the CPC and which will negate the same. I find that the proposal relied upon by the senior counsel for the defendant No.1 as a request of the plaintiff for sale was in the course of compromise attempts/proceedings between the parties and was not a request to the court envisaged under Section 2. The Apex Court in Badri Narain Prasad v Nil Ratan Sarkar AIR 1978 SC 845 has held that the request for sale envisaged by Section 2 is the sine qua non for directing a sale and if no such request has been made to the court, Section 3 cannot be brought into operation.
24. Section 2 even otherwise requires a request for sale for the reason of division of property being not reasonable or convenient. In the present case, the request relied upon does not state that such division of the property is not reasonable or convenient. On the contrary the same first states that the division is possible and suggests the mode of division. It is only in the alternative that the plaintiff stated that if the division proposed was not acceptable to the defendants the property be sold. This alternative was also qualified CS(OS) 1560/2006 Page 12 of 16 with openness for any other proposal of the defendants. There was thus no statement lest unequivocal statement as required by Section 2 of the Division being not reasonable or convenient. The court also did not treat the same as a request under Section 2 and did not at any time hold that it appeared that it was not reasonable or convenient to divide the property.
25. The conduct of the defendants after 8th April, 2004 is also relevant. The defendants did not then treat the proposal aforesaid of the plaintiff as a request under Section 2 of the Act. On the contrary the defendants as per the orders of the court submitted their own proposals for division of the property. Even after the compromise as to division of the property failed, the defendants did not state that the property be sold in terms of the alternative proposal (Supra) of the plaintiff. On the contrary, the defendants contended that issues needed to be framed and trial ordered and even preliminary decree in terms of their statements recorded on 4th December, 2003 could not be passed. After the said plea of the defendants was negatived by the court of the Additional District Judge, the defendants pressed the said plea before the division bench of this court in appeal. The division bench accepted the said plea of the defendants and passed a consent order that the plea of the defendants of oral family settlement/or division of the property in January, 2004 shall be gone into before passing the final decree. It is only thereafter that the defendants on 10th October, 2006 gave up the said plea. The defendants thereafter participated in the proceedings before the commissioner appointed by the division bench and whose scope was modified vide order dated 10th October, 2006 for exploring division of the property. In my view the defendants cannot now turn around CS(OS) 1560/2006 Page 13 of 16 after four years and apply under Section 3 of the Act for valuation to be affected. The senior counsel for the defendants has relied upon Ms. Malati Ramchandra Raut Vs. Mahadevo Vasudeo Joshi AIR 1991 SC 700 laying down that it is the duty of the court to order valuation of the shares of the party asking for sale under Section 2 and to offer the same to the party applying for leave to buy in terms of Section 3. It was further held that as soon as the request for sale is made, the other shareholders become immediately entitled to make an application under Section 3 and the right to buy becomes crystallized. In the circumstances, it was held that the date with reference to which the valuation of the shares is to be made is the date on which the right arose. In that case in the plaint dated 17 th May, 1972 itself it was avered that the properties could not be reasonably and conveniently divided and be sold; the summons were issued to the defendants on 26th June, 1972 and the defendants on 5th July, 1972 stated that they were prepared to buy the share of the plaintiff. The plaintiff thereafter sought to amend the plaint to withdraw the averment of the properties being incapable of division and of sale and the said amendment was disallowed. The appeal preferred by the plaintiff against the disallowance of amendment was dismissed on 1st April, 1977. It was in that context that the Apex court held that the right to purchase accrued on 5th July, 1972 when the defendants offered to buy the share of the plaintiff and not of the time when the valuation was being done. On the basis of the said judgment the senior counsel sought to urge that since the plaintiff had requested for sale in 2004, the valuation of 2004 and not of 2008 when the defendants, for the first time, applied for purchase was to be adopted. However, the said contention is not supported by the judgment itself. A reading of the judgment would show that in that case also the Apex court held the right of sale to have crystallized on CS(OS) 1560/2006 Page 14 of 16 the date when the defendants filed their affidavits seeking to buy and not on the date when the plaintiff requested for sale. In the present case even if the plaintiff is deemed to have requested for sale on 8th April, 2004, the defendants having not applied for purchase, are not entitled to valuation, if any, of 2004 but would have been entitled of 2008 only when the defendants for the first time sought to act on the purported request of the plaintiff for sale.
26. I feel that de hors the said judgment also it would be highly inequitable and unjust and contrary to the constitutional and natural rights of the plaintiff to hold that the valuation is to be of the date of the request of sale. The scheme of Sections 2&3 of the Partition Act is that in the event of any party applying for sale, the other party, if any, wanting to purchase has to apply immediately. The other party is not entitled to prolong the matter and to first contest the request for sale and only after such contest is declined to thereafter, after several years compel the party to sell at the valuation of the date of the request. This would tantamount to be placing the party making a request for sale at a disadvantageous position qua the party opting to purchase.
27. In the present case the defendants not only did not apply for purchase treating the proposal dated 8th April, 2004 as request for sale but on the contrary urged and succeeded in this court in appeal as aforesaid holding that the plea of the defendants of oral family settlement will be entertained even after the preliminary decree. What has transpired after 8th April, 2004 leads to an unequivocal conclusion that neither there was a request by the plaintiff for sale and even if there was any such request, the same stood withdrawn CS(OS) 1560/2006 Page 15 of 16 and or superseded by the subsequent proceedings. It did not appear to this court also at any stage that it would not reasonable or convenient to divide the property. On the contrary after 8th April, 2004 also the modalities for division of the property were being proceeded with. I may also notice that the defendant No.1in response to the proposal dated 8th April, 2004 of the plaintiff (Supra) made his proposal dated 24th July, 2004 in which he stated that he is ready to purchase the share of the plaintiff but on the basis of the valuation put by the plaintiff in the suit i.e., of Rs.3 lac. The defendant No.2 also at that stage did not ask for valuation to be affected.
28. For the reasons aforesaid, I do not find the plaintiff to have made a request for sale within the meaning of Section 2 of the Partition Act and hence the question of the defendant No.1applying for purchase within the meaning of Section 3 of the Partition Act does not arise. On the contrary I find the stand of the counsel for the defendant No.1 to be malafide, dilatory and vexatious in continuance of the conduct noted in the Order dated 4th September, 2008 (Supra). The defendant No.1 is in the circumstances burdened with costs of Rs.25,000/- payable to the plaintiff within four weeks. On the failure of the defendant No.1 to pay the said costs, the same shall be recovered from the share of the defendant No.1 in the property.
RAJIV SAHAI ENDLAW (JUDGE) January 13, 2009 PP CS(OS) 1560/2006 Page 16 of 16