Delhi High Court
Sh. Jagmohan Nath Kapoor vs Sh. Manmohan Nath Kapoor on 25 April, 2011
Author: V. K. Jain
Bench: V.K. Jain
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Pronounced on: 25.04.2011
+ CS(OS) 1254/2009
SH. JAGMOHAN NATH KAPOOR .....Plaintiff
- versus -
SH. MANMOHAN NATH KAPOOR .....Defendant
Advocates who appeared in this case:
For the Plaintiff: Mr. Anupam Srivastava with Mr.
Manish Srivastava, Advs.
For the Defendant: Mr. Vijay Gupta, Ms. Geeta Goel
and Mr. Jaladhar Das, Advs.
CORAM:-
HON'BLE MR JUSTICE V.K. JAIN
1. Whether Reporters of local papers may
be allowed to see the judgment? No
2. To be referred to the Reporter or not? No
3. Whether the judgment should be reported No
in Digest?
V.K. JAIN, J. (ORAL)
I.A. No. 902/2011
1. This is an application filed by the plaintiff under Sections 2 and 3 of the Partition Act seeking to purchase the share of the defendant in the suit property for a consideration of Rs. 2 crores.
CS(OS)No. 1254/2009 Page 1 of 11
2. Vide order dated 21st January, 2011, this court passed a preliminary decree for partition of the suit property i.e. property no. F-11, Lajpat Nagar-III, New Delhi admeasuring 200 square yards and comprising of ground floor, first floor and second floor. The plaintiff has one half share in the suit property whereas the remaining half share is owned by the defendant. Shri Jayant K. Mehta, Advocate was appointed as local commissioner to suggest ways and means by which the partition could be effected. The local commissioner could also take the assistance of an architect if found necessary in the circumstances of the case.
3. The local commissioner has accordingly submitted his report dated 26th April, 2010. The local commissioner also availed the services of an architect Mr. Siddharth Chaturvedi. The architect in his letter dated 12 th April, 2010 to Mr. Jayant K. Mehta stated that keeping in view the existing built structure on the property, design and the current building norms, it may not be possible to exactly divide the property into two halves. He therefore suggested the following modes of partition:-
"1) Division of the two floors:
The ground and first floor could be divided between the claimants. The terrace rights could CS(OS)No. 1254/2009 Page 2 of 11 be given to one while the other party could be suitably compensated. Both parties will have the right to passage and use of the stairway and circulation area.
2) Physical Division:
The terrace could be divided into two parts keeping in mind the right to passage and a buffer 3 feet corridor for circulation as shown in diagram (A).
As the floor area at ground level would be more than the first floor, the front part of the terrace with the Barsati, could be given to the claimant getting the first floor. The rear terrace could be given to the owner of the ground floor.
Subsequent sale of terrace though could be difficult in future.
3) Design Division:
Division of property will take place by changing the design of the existing structure and would require civil work. Ground to be given to claimant-1 and terrace to be given to claimant-2. The first floor would be divided equally into two halves with the front and the circulation area going to claimant-2 while the rear half to claimant-1. An additional staircase could be constructed in the rear courtyard combining ground and first floor for claimant-1 as shown in diagram (BI) and (CI)."
4. The local commissioner after considering the report of the architect noted that the second mode of partition suggested by him required division of terrace between the two parties but the access to the terrace was only from one staircase which leads to the first floor and then to the terrace. This mode, according to him, would require a three feet buffer CS(OS)No. 1254/2009 Page 3 of 11 area which would be a common area along with the staircase and will create difficulties for future sale etc. Regarding the third mode of partition, he was of the view that since it would require alteration of existing construction. The same was, therefore, not suggested by him, unless acceptable to the parties.
He has therefore recommended that only the first mode of partition be considered by the Court, though in his understanding, the suit property cannot be divided into two equal proportions.
5. The second mode of partition has been left out by the local commissioner. The third mode of partition which requires alteration of the existing construction is not acceptable to the plaintiff though it is acceptable to the defendant. That leaves the court only with the first mode of partition whereby the ground floor can be given to one party, the first floor can be given to other party and the terrace rights can be given to either of them and the other party suitably compensated. In this mode, both the parties will have a right to passage and use of the stair way and circulation area. The first mode of partition is acceptable to the defendant but not acceptable to the plaintiff. The learned counsel for the plaintiff CS(OS)No. 1254/2009 Page 4 of 11 states that his client is not in a position to accept either the ground floor or the first floor for the three reasons that:-
(i) The construction is very old.
(ii) The property is in a rather dilapidated condition.
(iii) The land has not been covered to the extent it is
presently permissible.
The second difficulty in this mode of partition is that the ground floor and first floor do not and cannot have equal valuation. The local commissioner has not given any floor wise valuation of the suit property. In the absence of valuation of each floor, it is not possible to allocate the ground floor to one party and first floor to the other party and compensate the party getting floor of higher valuation. This could have possibly been done, had the local commissioner given the floor wise valuation of the suit property. The third difficulty arises in this mode of partition is the valuation of the terrace floor. The local commissioner has not given any valuation of the terrace floor and there is no agreement between the parties with respect to valuation of the terrace floor.
6. In my view, in these circumstances, the most appropriate course of action would be to direct sale of the suit property since it is not capable of partition by metes and CS(OS)No. 1254/2009 Page 5 of 11 bounds in the exact ratio of 50% to each of the two parties.
7. Section 2 of the Partition Act, to the extent relevant, provides that if it appears to the Court by reason of the nature of the suit property or the number of share holders therein or any other special circumstances, a division of the property cannot reasonably or conveniently be made, and that a sale of the property and distribution of the proceeds would be more beneficial for all the shareholders, the Court may, on the request of any of such shareholders, direct a sale of the property and distribution of the proceeds.
Section 3 of the Act, to the extent relevant, provides that if a sale under Section 2 of the Act is requested, and any other shareholder applies for leave to buy at a valuation the share or shares of the party asking for a sale, the Court shall order a valuation of the share or shares and offer to sell the same to the shareholder seeking to buy the share of the opposite party at the price so ascertained.
8. In R.Ramamurthi Iyer vs. Raja V. Rajeswara Rao (1972) 2 SCC 721, Supreme Court approved the following rule enunciated by Crump, J. in this regard:
"1. In a suit for partition if, it appears to the Court that for the reasons stated in CS(OS)No. 1254/2009 Page 6 of 11 Section 2 a division of the property cannot reasonably and conveniently be made and that a sale of property would be more beneficial it can direct sale. This can be done, however, only on the request of the shareholders interested individually or collectively to the extent of one moiety or upwards.
2. When a request is made under Section 2 to the court to direct a sale any other shareholder can apply under Section 3 for leave to buy at a valuation the share of the other party asking for a sale.
3. The court has to Order valuation of the share of the party asking for sale.
4. After the valuation has been made the court has to offer to sell the share of the party asking for sale to the shareholder applying for leave to buy under Section 3.
5. If two or more shareholders severally apply for leave to buy the court is bound to Order a sale of the share or shares so the shareholder who offers to pay the highest price above the valuation made by the court.
6. If no shareholder is willing to buy such share or shares at the price so ascertained the application under Section 3 shall be dismissed, the applicant being liable to pay all the costs."
9. In Faquira vs. Raj Rani and Anr. AIR 1984 Delhi 168, this Court noted that the Court can order a sale, if one is demanded by the shareholders interested individually or CS(OS)No. 1254/2009 Page 7 of 11 collectively to the extent of half the property or more and cannot sale of its own. In taking this view, the Court referred to the Statement of Objects and Reasons for indicating Partition Act, 1893, wherein it was stated that having regard to the strong attachment of the people in this country to their landed possession, it is proposed to make the consent of the parties interested at least to the extent of moiety in the property a condition precedent to the exercise by the Court of this new power. The Division of this Court set aside the order whereby the Court had directed auction amongst co-owners without request of any of them. Therefore, it is not open to the Court to direct sale of the suit property of its own unless such a request is made either by the plaintiff or by the defendant both of whom hold 50% share each in the property.
10. The plaintiff cannot apply to purchase the share of the defendant in the suit property unless defendant makes a request to the Court for the sale of the property. However, if the plaintiff makes such a request, it is open to the defendant to apply under Section 3 of the Act for purchase of share of the plaintiff in the suit property.
11. Though the prayer made in this application is for CS(OS)No. 1254/2009 Page 8 of 11 purchase of share of the defendant by the plaintiff, this application, to my mind, can conveniently be considered as an application under Section 2 of the Partition Act for sale of the suit property. In the case of R. Ramamurthi Iyer (supra), Supreme Court observed that Section 3(1) does not contemplate a formal application being filed in every case and the other shareholder has only to inform the Court or notify to it that he is prepared to buy at a valuation the share of the party asking for sale. This proposition would equally apply to an application envisaged under Section 2 of the Act. In para 6 of the application, it has been specifically stated that as the physical partition of the suit property would be impracticable, unreasonable and inconvenient, its sale is the only possible option for effecting the partition. The learned counsel for the plaintiff, on instructions from the plaintiff who is present in Court in-person today, also makes a specific request for the sale of the suit property in terms of Section 2 of the Partition Act. Therefore, the application filed by the plaintiff can conveniently be treated as an application under Section 2 of the Act.
Mr. Vijay Gupta, Advocate who represents the defendant in this matter, on instructions from the son of the CS(OS)No. 1254/2009 Page 9 of 11 defendant who is present in Court in-person today, states that since the application of the plaintiff is being considered as an application under Section 2 of the Partition Act, his reply may be treated as an application by the defendant under Section 3 of the Partition Act for purchase of the share of the plaintiff in the suit property. He points out that the reply does contain such a readiness on the part of the defendant in paras 6-8 of the reply. I see no valid reason for not acceding to this request.
12. In these circumstances, the local commissioner who was appointed earlier by this Court to suggest mode of partition, is hereby directed to report what is the current valuation of 50% share which the plaintiff has in the suit property. While giving valuation, the local commissioner would assume that the suit property is vacant. He will also take into consideration the age and condition of the super structure existing on the suit property. While giving valuation, he shall also keep in mind the offer made by the defendant to buy out the share of the plaintiff for Rs. 2 crores. The local commissioner will be entitled to obtain the assistance of any architect/valuer for the purpose of giving the report in terms of this direction. Since during the course of arguments, the CS(OS)No. 1254/2009 Page 10 of 11 learned counsel for the defendant suggested that the Local Commissioner may also be directed to give floor wise valuation of the suit property, it is directed that the Local Commissioner will also give separate valuation of ground floor, first floor and terrace while giving value of half share of the plaintiff in the suit property. This would also enable the Court to have a relook at the option for floor wise distribution, coupled with suitable compensation. The local commissioner shall submit his report within six weeks from today.
The IA stands disposed of.
One copy of this order be sent to the Local Commissioner, within three days.
CS(OS) 1254/2009 List on 28th July, 2011, awaiting the report of the Local Commissioner.
(V.K. JAIN) JUDGE APRIL 25, 2011 SD/BG CS(OS)No. 1254/2009 Page 11 of 11