Delhi High Court
Indira Uppal vs J.N.Uppal & Ors. on 22 January, 2009
Author: Shiv Narayan Dhingra
Bench: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: January 15, 2008
Date of Order: January 22, 2009
+ EA Nos.494-495/08 in Ex.P.No.102/2002
% 22.01.2009
INDIRA UPPAL ... Decree holder
Through: Mr. Rajesh Banati with Mr. Hari Mohan, Advs.
Versus
J.N. UPPAL & ORS. ... Judgment debtors
Through: Mr. Rakesh Mahajan, Adv. with JD-1 in person
Mr. Gopal Krishan Uppal, JD-2 in person.
Mr. P.N.Uppal, JD-3 in person.
Dr. Harish Uppal, JD-4 in person.
JUSTICE SHIV NARAYAN DHINGRA
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 judgment should be reported in Digest? Yes.
JUDGMENT
1. The parties in this case are four brothers and one sister . They have equal shares in two properties namely 20, Todar Mal Road, New Delhi and 9A/50 WEA, Karol Bagh, New Delhi. An award for partitioning these two properties among these brothers and sister has become final and it has been held that each of them will have 20 % share in the property. This Court vide order dated May 2, 2008 observed that the award was to be executed as decree and as per the award, EA Nos.494-495/08 in Ex.P.102/2002 Page 1 of 6 properties are to be sold and shares distributed. This Court observed that it would be appropriate that in the first instance attempt is made for inter se bidding.
2. On 11th September, 2008, the Court was told that inter se bidding was not possible and at the request of parties, a valuer was appointed for valuation of the two properties. As per valuer report, the property at Todar Mal Road was worth Rs.7,73,06,000/- and the property at Karol Bagh was worth Rs.1,94,75,000/-. In view of the valuer report, the total value of the properties comes to Rs.9,67,81,000/- and the share of each of the brothers/sister comes to Rs.1.93 crores approximately. Dr. Harish Uppal had made an application under Section 3(1) of the Transfer of Property Act, 1893 (SIC Partition Act, 1893) read with Section 151 of CPC wherein he has prayed that the first floor on 20, Todar Mal Road may be sold to JD-4 under Section 3(1) of Partition Act at the price ascertained by the valuer and this price may be set off against his share and if there was any further amount due, the same shall be paid by JD-4.
3. There is another similar application made by another decree holder namely Ms. Indira Uppal. She had prayed that she opts to buy full property of 9A/50, WEA Karol EA Nos.494-495/08 in Ex.P.102/2002 Page 2 of 6 Bagh at the valuation done by valuer and she was prepared to pay the difference between her share and the value of the property as assessed by the valuer. The applications are opposed by other decree holders. During arguments, it transpired from the arguments of the parties that the valuation done by the valuer does not reflect true market value of the properties. Even according to Dr. Harish Uppal, JDs living in Karol Bagh property have got the values of property fixed through the valuer in such a manner that the value of the property at Karol Bagh comes almost equal to one share and the JD living in the property wants to take benefit of this. It was also submitted that the valuation of Todar Mal Road property was also not done as per market value and the market value of the property was more than what has been assessed by the valuer. While Dr. Uppal is interested in purchasing one floor of the property at Todar Mal Road, other JDs want to have their preference for Karol Bagh house against their share and pay the difference. More specifically Mr. Gopal Krishan Uppal who is also residing at Karol Bagh property has stated that this property must go to him. Ms. Indira Uppal is also partly occupying the same property. She also wants to purchase this property.
EA Nos.494-495/08 in Ex.P.102/2002 Page 3 of 6
4. A perusal of record would show that all efforts to bring a settlement between the parties failed even at the level of Arbitrator who was a relative of the parties and that is how the Arbitrator opined that the partition, among the brothers and sister, can be done only by auction of the properties. Same is the situation now, although the properties have been got valued from a Government valuer. It is a complaint of all the parties that the properties have not been valued properly. Only Ms. Indira Uppal and Mr. Gopal Krishan Uppal, each of whom want to have this property as her/his share, state that this property has been valued correctly.
5. Dr. Uppal argued that it was binding on the Court to apply principle of Owelty and allow Karol Bagh property to Ms. Indira Uppal. I consider that the legal position is quite clear. Owelty is one of the modes of partition of the property. The principle of Owelty cannot be applied by the court if it results into unjust distribution of the shares. When it is admitted that the valuation of this property has not been properly done and it is alleged that the property at Karol Bagh was worth more than Rs.3 crores, it has been got deliberately valued at around Rs.2 crores; I consider it would not be appropriate to apply principle of Owelty. In ML Shubh Ram Shetty and Ors. vs. EA Nos.494-495/08 in Ex.P.102/2002 Page 4 of 6 M.L.Nagappa Shetty 2002 (4) SCC 743 Supreme court observed that it may not be necessary that if the properties consist of movable and immovable properties then each party must necessarily be given a share in all movable and immovable properties. While effecting partition of joint family properties it may not be possible to divide every property by metes and bounds. The allocation of properties of unequal value may come to the share of a member of a joint family at the time of effecting partition but for that necessary adjustments have to be made and owalty principle can also be applied. However, no hard and fast rule can be laid. It depends upon the facts of each case and on the nature of immovable property and number of such properties as also the number of members between whom it is got to be divided. It is also possible that the value of one property may appreciate drastically while this may not be the case in respect of other properties. The endeavor of the court should be to protect, preserve and respect the possession of the parties as far as possible. While so protecting the possession there has to be equalization of the share, which has been recognized in law.
6. I consider that principle of Owelty can be applied where the parties have no dispute about the value of the EA Nos.494-495/08 in Ex.P.102/2002 Page 5 of 6 property. While applying principle of Owelty, the court has to give preference to the person already living in the property. If this principle is applied then not only Ms. Indira Uppal but Mr. G.K. Uppal both would have right to own the Karol Bagh property. None of them is prepared to give up this right. Under these circumstances, I consider that it would not be appropriate to allow one of the shareholders to have the entire property of Karol Bagh and auction the other property. It would be appropriate that both the properties are auctioned by public auction and the parties are permitted to participate in the public auction and the proceeds of the parties are distributed as per award.
7. List on 30th March, 2009 for fixing mode of auction and date of auction.
8. The Court Auctioneer shall also be appointed on that date.
January 22, 2009 SHIV NARAYAN DHINGRA J.
ak
EA Nos.494-495/08 in Ex.P.102/2002 Page 6 of 6