Supreme Court of India
Mrs. Malati Ramchandra Raut And Ors vs Mahadevo Vasudeo Joshi And Ors on 20 December, 1990
Equivalent citations: 1991 AIR 700, 1990 SCR SUPL. (3) 577, AIR 1991 SUPREME COURT 700, 1991 AIR SCW 217, (1991) 1 APLJ 67.1, 1991 SCD 349, 1991 (1) UJ (SC) 492, (1991) 1 JT 19 (SC), 1991 (1) SCC(SUPP) 321, 1991 (1) JT 19, (1991) MAH LJ 605, (1991) 1 LJR 324, (1992) BANKJ 391, (1991) 1 CURLJ(CCR) 462, 1990 ( ) BOM LR 656
Author: T.K. Thommen
Bench: T.K. Thommen, R.M. Sahai
PETITIONER:
MRS. MALATI RAMCHANDRA RAUT AND ORS.
Vs.
RESPONDENT:
MAHADEVO VASUDEO JOSHI AND ORS.
DATE OF JUDGMENT20/12/1990
BENCH:
THOMMEN, T.K. (J)
BENCH:
THOMMEN, T.K. (J)
SAHAI, R.M. (J)
CITATION:
1991 AIR 700 1990 SCR Supl. (3) 577
1991 SCC Supl. (1) 321 JT 1991 (1) 19
1990 SCALE (2)1366
ACT:
Partition Act, 1893: Sections 2 and 3--Partition
suit--Properties incapable of division by metes and bounds
Plaintiffs prayer for its sale and distribution of the
proceeds--Defendants willing to buy.
Plaintiffs' shares--Determination of valuation of plain-
tiff's shares --What is relevant date--Is it when the de-
fendants sought leave of the court to buy plaintiffs' shares
or the date of the preliminary decree declaring the shares
of the parties?
HEADNOTE:
The respondents filed a suit for partition claiming
together 2/3rd share while admitting that the defendants
together held 1/3rd share in the suit properties. It was
pleaded by the plaintiffs that the suit properties could not
be reasonably and conveniently divided and therefore had
made a prayer for its sale and distribution of the proceeds
amongst the shareholders. The defendants proposed to buy at
a valuation the 2/3rd shares held by the plaintiffs and
accordingly made a request to the court under section 3 of
the Act to direct a valuation of the same. The plaintiffs
tried to backtrack by asking for amendment of their plaint
to delete their averment that the properties could not be
reasonably and conveniently divided and for its sale and
distribution of the proceeds. This was disallowed by the
trial court and appeal preferred against this rejection was
unsuccessful.
The learned single judge of the High Court after notic-
ing that there was no dispute between the parties as regards
their shares nor was there dispute any longer that the
properties were incapable of division by metes and bounds
they had to be sold and the proceeds distributed according
to their shares. But the defendants being willing and actu-
ally having sought leave of the court to purchase the shares
of the plaintiffs at a valuation, those shares had to be
valued as on the date leave to purchase was sought by them.
He, therefore, directed valuation of the properties so that
shares of the plaintiffs could be sold to defendants. The
plaintiffs took an appeal before the Division Bench which
held that the present appellants who claimed to be the legal
representatives of the original defendants, had first to
obtain probate or letters of administra-
578
tion and thereafter a preliminary decree declaring the
shares of the parties has to be passed and the valuation of
the properties would have to be made with reference to the
date of such preliminary decree.
The defendants have come in appeal challenging the
correctness of this decision. Allowing the appeal, setting
aside the judgment of the Division Bench and restoring that
of the single judge, this Court,
HELD: It is the duty of the Courts to order the valua-
tion of the shares of the party asking for a sale of the
property under Section 2 and to offer to sell the shares of
such party to the shareholders applying for leave to buy
them in terms of section 3 at the price determined upon such
valuation. As soon as a request for sale is made by a share-
holder under Section 2, any other shareholder becomes imme-
diately entitled to make an application under Section 3 for
leave to buy the shares of the former. The right to buy
having thus arisen and become crystallised, the date with
reference to which valuation of the shares in question has
to be made is the date on which the right arose. [581C-D]
The fact that legal representatives representing the
estate of a deceased defendant had not yet obtained probate
or letters of administration did not mean that the right
which arose in favour of that defendant during his life when
he sought leave under section 3 did not accrue to the bene-
fit of his estate, but was postponed till they obtained
probate or letter of administration. This right came to he
vested in his estate. The valuation of the shares has to he
made as on the date of accrual of the right and valuation
being a fact finding process must be resorted to as soon as
possible after such accrual. [581E-G]
Whenever the shares in question in the properties come
to be sold to the persons entitled to buy them under section
3, the price of those shares will have to be determined on
the basis of the valuation made with reference to the time
of accrual of the right. [582C]
R. Ramatnunhi Iyer v. Raja V. Rajeswara Rao, [1972] 2
SCC 721 at p. 727, followed.
JUDGMENT: