Indian Kanoon - Search engine for Indian Law

12. Dr. Mukesh Kesarwani and Sri Yogesh Kesarwani (plaintiffs of Regular Suit No. 436 of 2009 instituted a suit for partition seeking separation of their 3/4th share in House No. 50/8, Jai Narayan Road, Hussainganj, Lucknow.

13. Both the suits related to the property in question between the same parties and their successors in interest, hence, they were consolidated by the Court of Civil Judge, Senior Division, Lucknow and R.S. No. 4 of 2007 was made the leading case.

14. In the suit for partition instituted by the stranger purchasers numbered as R.S. No. 436 of 2009, the defendant Devi Shankar Shukla (respondent herein) while filing his written statement also set up a counter claim wherein he raised the plea that since he was the co-sharer, hence, in exercise of his right conferred under Section 4 of the Partition Act, 1893 he sought to purchase the 3/4th share of the stranger purchasers at the price at which the stranger purchasers had purchased the property from Sri Satya Prakash Nigam or at such price to be determined by the Court.

20. While dealing with issues nos. (vii) and (viii) which emerged from the suit for partition instituted by the stranger purchaser, the Trial Court found that the co-sharer did not give any un-conditional offer to purchase the share of the stranger purchasers at the market value, consequently, the said issues were decided against the respondent herein.

21. While dealing with issue no. (vi), the Trial Court concluded that since the stranger purchasers had purchased the 3/4th share from the other co-sharers after paying a valuable sale consideration and the said sale deed was duly registered, also, as the respondent herein had not given an unconditional offer to purchase the share of the earlier transferee Sri , Satya Prakash Nigam, hence, could not claim the benefit of Section 4 of the Partition Act, hence, the stranger purchasers were entitled to get their 3/4th share partitioned, accordingly, deciding the said issue in favour of the stranger purchasers/the appellant herein.

(iv) When such a claim is instituted by the stranger purchaser then any member of the family who still has an undivided share in the dwelling house must come forward to press his claim of preemption by undertaking to buy out the share of the stranger purchaser.

(v) At the time of accepting the claim for preemption made by the existing co-owners of the dwelling house in respect of the share of the stranger purchaser, it is the Court that should make a valuation of the share of the stranger purchaser and must make the existing co-sharer of the dwelling house to pay the value of the share of the stranger purchaser so that the existing co-owner is able to purchase by preemption the share of stranger purchaser in the dwelling house in its entirety so that the rights of the parties are completely satisfied and the stranger purchaser is left with no other right or share in the dwelling house and consequently, the stranger purchaser can be effectively denied entry in any part of the dwelling house.

80. However, the share of the appellant which is required to be valued and ascertained in terms of Section 4 of the Partition Act is to be done in such a manner as the Court may thinks fit. Section-4 of the Partition Act does not use the word market value. Thus, while determining the valuation, it is the duty incumbent upon the Court to ensure that the valuation upon which the stranger purchaser is compelled to sell his share is not undervalued in the sense that the stranger purchaser is not penalized so also the co-sharer who is exercising his rights to purchase the share of the stranger purchaser should not make a windfall. It is in the aforesaid context that the Court has to be extremely cautious in determining the value and also adopting a reasonable and well accepted mode balancing the equities and rights of the respective parties.