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 couldCS(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 inCS(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