Smt.Asharfi Devi vs Viith A.D.J.& Another
2017 Latest Caselaw 4980 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 23
 

 
Case :- WRIT - C No. - 16504 of 2000
 

 
Petitioner :- Smt.Asharfi Devi
 
Respondent :- Viith A.D.J.& Another
 
Counsel for Petitioner :- Vishnu Behari Tewari,Atul Dayal,Ravi Shankar Prasad,Zain Abbas
 
Counsel for Respondent :- C.S.C.,M.L.Maurya
 

 
Hon'ble Abhai Kumar,J.

Heard learned counsel for the petitioner as well as learned counsel for the opposite party and perused the record.

This petition has been preferred against the judgment dated 15.12.1999 passed by the VIIth Additional District Judge, Kanpur Nagar in Civil Revision No. 137 of 1999 filed by respondent no. 2 against the judgment/order dated 8.2.1999 passed by the IVth Additional Chief Munsif Magistrate, Kanpur Nagar in Misc. Case No. 28/74/96, allowing the revision and setting aside the judgment/order dated 8.2.1999 passed by the IVth A.C.M.M. Kanpur Nagar.

Brief facts arising out of this case are as follows:

Respondent No. 2- Smt. Sharda Devi filed a Suit No. 840 of 1993 against the petitioner - Smt. Asharfi Devi for partition and for rendition of account of House No. 55/128 General Ganj, Kanpur Nagar. Suit was decreed for half share in the aforesaid house and for rendition of account in favour of respondent no. 2 by IVth Additional Chief Munsif Magistrate, Kanpur Nagar, vide order dated 9.7.1996.

Respondent No. 2 moved an application for preparation of final decree bearing Misc. Case No. 28/74/96 and an Amin was appointed for valuation of the house. The Amin submitted his report dated 9.1.1997. After the matter being heard by the court concerned, it was the conclusion of the parties as well as of the court that it is not possible on the spot to partition the property and it was agreed that valuation of the house may be determined and the parties wish/desire to purchase to do so or otherwise property may be auctioned and sale proceed be divided half-half between the parties.

Trial court appointed Sri Narendra Kumar Singh, Amin of the Civil Court to affect the auction on the asking of respondent no. 2 and trial court fixed Rs. 7 Lacs as the minimum price of the house. The Amin reported that auction could not be affected as proper steps were not taken. Then respondent no. 2 moved an application dated 2.3.1998 that she was willing to purchase the disputed house for Rs. 7,50,000/-. Then moved another application that in case no offer higher than Rs. 7,50,000/- comes, her bid may be accepted and if higher offer comes same may be accepted. On 6.3.1998, petitioner moved an application and showed her willingness to purchase the house for Rs. 7,60,000/- which was accepted by the court as well as respondent no. 2. Consequently, Rs. 3,80,000/- were deposited by the petitioner being the half price of the house, to be paid to the respondent no. 2. Respondent No. 2 caused the delay in executing the sale deed and later on moved a recall application for recalling the order dated 31.3.1998 by which petitioner was allowed to deposit Rs. 3,80,000/- which was dismissed. A revision was filed against the said order by respondent no. 2 before the District Judge, Kanpur Nagar, bearing no. 137/99, which was allowed by 7th Additional District Judge, Kanpur Nagar vide judgment dated 15.12.1999. Aggrieved by that, this petition has been filed.

It is observed by the revisional court that once the proceeding has been initiated under Section 2 of the Partition Act (hereinafter referred to as the 'Act') and a public auction has been ordered, then court cannot resile for that and proceeding under Section 3 of the Partition Act cannot be undertaken. This is specific observation of the revisional court that both the parties opted for auction from the very beginning and that is why they are precluded to take the benefit of Section 3 of the Act. It is also observed by the revisional court that any agreement entered between the parties against the law is not enforceable.

It is submitted by the learned counsel that respondent no. 1 failed to consider that there was no jurisdictional error in the order of the trial court dated 8th February 1999 and revision was itself not maintainable. It is also contention of the learned counsel that application of Section 3 of the Act was there and there was no bar under the Partition Act that in case order for auction of the property has been made then Section 3 of the Act will not apply.

The main ground that was taken by revisional court for allowing the revision is regarding the consent of both the parties for disposing off the property by auction sale. No doubt, if both the parties would have asked for auction sale then they were precluded from taking the benefit of Section 3 of the Act, but the observation of the revisional court is apparently erroneous and without going through the record.

From the perusal of order dated 16.1.1998 of the trial court, it is manifestly clear that it is only respondent no. 2 Smt. Sharda Devi who opted for auction of the disputed property and on the basis of this statement of respondent no. 2 who was having 50% share in the property, trial court ordered for auction for disputed property. At no point of time the petitioner agreed for auction sale and in that case petitioner was having right under Section 3 of the Act and the conclusion drawn by the revisional court that petitioner is not entitled to take the benefit of Section 3 of the Act, is not sustainable.

The law propounded by Hon'ble Supreme Court in Rachakonda Venkat Rao Vs. R. Satya Bai reported in 2003 (7) SCC 452 and M.L. Subbaraya Setty and others Vs. M.L. Nagappa Setty and others reported in (2002) 4 SCC 743, have no application in the present case as the facts were quite different and matter before the court was also different and application of Section 3 of the Act, is not being considered in both the cases. Although, Hon'ble Apex Court in Rachakonda Venkat Rao (supra) observed that it is always open to the parties to enter into fresh arrangement. They may even decide to be again joint with respect to the properties which means that they may throw the properties in the common pool again. The parties are free to adopt whatever course of action they may choose in future by way of mutual arrangement.

In the case in hand, there is no mutual arrangement between the parties and in the context it cannot be said that respondent no. 2 is entitled to do whatever she wishes. If any action is to be taken by the respondent no. 2, then it can only be taken if petitioner is agreed to that. Similarly, the view of the Calcutta High Court in the case of Gadadhar Ghose Vs. Janaki Nath Ghosh reported in LAWS (CAL) 1967 8 22, is also not applicable in the present case wherein it has been discussed that whether sale can be taken between the shareholders or it be a public auction and Hon'ble Justice Ray concluded that auction sale must be public auction so as to fetch the maximum benefit to the shareholders.

Instead the view taken by Hon'ble Apex Court in the case of R. Ramamurthi Aiyar Vs. Raja V. Rajeswarao reported in 1973 AIR (SC) 643, is applicable in the matter wherein it has been observed by the Apex Court as follows:

"In such a situation it has been made obligatory that the court shall order a valuation of the share or shares and offer to sell the same to the shareholder who has applied for leave to buy the share at a price ascertained by the court. In other words if a-plaintiff in a suit for partition has invoked the power of the court to order sale instead of division in a partition suit under S. 2 and the other shareholder undertakes to buy at a valuation the share of the party asking for sale the court has no option or choice or discretion left to it any it is bound to order a valuation of the shares in question and offer to sell the same to the shareholder undertaking or applying to buy it at a valuation. The purpose underlying the section undoubtedly appears to be to prevent the property falling into the hands of third parties if that can be done in a reasonable manner. It would appear from the objects and reasons for the enactment of the Partition Act that as the law stood the court was bound to give a share to each of the parties and could not direct a sale or division of the proceeds. There could be, instances where "there were insuperable practical difficulties in the way of making an equal division and the court was either powerless to give effect to. its decree or was- driven to all kinds of shifts and expedient in order to do so. The court was, therefore, given a discretionary authority to direct a salt where. a partition could not reasonably be made and the sale would, in the opinion of the court, be more beneficial to the parties. But having regard to the strong attachment of the people in this country to their landed possessions the consent of the parties interested at least to the extent of a moiety in the property was made a condition precedent to the exercise by the court of the new power. At the same time in order to prevent any oppressive exercise of this privilege those shareholders who did not desire a sale were given a right to buy the others out at a valuation to be determined by the court."

It is apparent that Section 3 of the Act only comes after Section 2 of the Act, that is being initiated and auction has been opted by the shareholders having either 50% or more than 50% of share solely or jointly but the shareholder who has not opted for auction sale is having right to exercise it under Section 3 of the Act and when such option is being taken then court is bound to accept that and in that case court concerned is bound to get the value of the property as has been provided in Section 3(1) of the Act. No specific procedure has been prescribed for getting the valuation of the property and court may take its own recourse in such manner as it may thinks fit.

There was an offer on the part of the respondent no. 2 that she was ready to purchase the property for Rs. 7,50,000/- and in case someone was paying more than that same may be accepted.

Seeing the proposal of the respondent no. 2, if the trial court came to the conclusion that valuation of the property, Rs. 7,50,000/- is proper valuation of the property and any price more than that will be proper value of the property, cannot be said to be erroneous. Consequently, in this context, the argument of the learned counsel for the respondent no. 2 cannot be accepted that court did not value the property after the option under Section 3 of the Act was exercised by the petitioner. The next contention of the learned counsel for the respondent no. 2 was regarding the relevant date on which valuation of the property will be seen and it has been contended by the learned counsel that valuation of the property should be valued at the time of preparation of final decree. In this context law has been propounded by Hon'ble Apex Court in the case of Malati Ramchandra Raut Vs. Mahadevo Vasudeo Joshi reported in 1991 AIR (SC) 700.

Observation of the Apex Court is more apt and the same is reproduced as follows:-

" Para 9. It is the duty of the Court to order the valuation 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 immediately 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."

Hon'ble Apex Court further observed in paragraph 11, 12 as follows:

Para 11. Accordingly, the valuation, though made subsequently, has to be made with reference to the time at which the right arose which in the present case, as found by the learned single Judge, was on 5th July, 1972 when the defendants filed their affidavit seeking leave to buy or at any rate, on 9th October, 1972 when they filed their written statement reiterating that request. In case such as this, where the extent of shares held by the plaintiffs and the defendatns is not disputed, the fact that the proceedings continued by reason of the appeal filed by the plaintiffs against the order refusing to allow them to amend their plaint, or for any other reason, was not relevant to the time of accrual of a right arising under S. 3. The fact that a preliminary decree may have to be passed before passing a final decree and that no such decree has yet been made is again not releavnt, on the facts of this case, to the question as to the time of accural of a right under Section 3.

Para 12. In the circumstances, 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. This, as found by the learned single judge, was the price prevailing in July 1972.

In the present case, petitioner exercised her right and by the order dated 8.2.1999, trial court rightly ordered for the sale to be executed in favour of Asharfi Devi on the valuation of Rs. 7,60,000/-. Date 8.2.1999 was appropriate date for the valuation of the property to be ascertained and same was done by the trial court, although not in a very specific term. Even if contention of the learned counsel of respondent no. 2 is accepted that valuation should of the date of final decree, question arises what is the time final decree.

Once offer is made under Section 3 of the Act and same is accepted final decree is passed, rest of the proceedings are consequential like deposition of money and execution of sale deed. Hence, valuation accepted by court at the relevant date can not said to be erroneous or illegal. Accordingly, the order of the trial court was perfectly right and there was no jurisdictional error or manifest mistake in that and revision against that order was certainly not maintainable.

It is also contention of the learned counsel for the respondent no. 2 that money that was deposited by the petitioner in regard to sale has already been withdrawn by her with the leave of the court and now she cannot get the benefit of that order. No doubt, money was withdrawn by the petitioner with the leave of the court by order dated 7.2.2000 but same cannot be basis for rejecting the claim of the petitioner and at the most it can be ordered that respondent no. 2 will get interest at the rate of 9% per annum in regard to money that was to be deposited (Rs. 3,80,000/-) by the petitioner from the date 8.2.1999 till the money is being deposited again by the petitioner in the court.

With the aforesaid observation, the petition is allowed.

The impugned order dated 15.12.1999 passed by the VIIth Additional District Judge, Kanpur Nagar in Civil Revision No. 137 of 1999 filed by respondent no. 2 against the judgment/order dated 8.2.1999 passed by the IVth Additional Chief Munsif Magistrate, Kanpur Nagar in Misc. Case No. 28/74/96, allowing the revision and setting aside the judgment/order dated 8.2.1999 passed by the IVth A.C.M.M. Kanpur Nagar, is hereby set aside.

Seeing the fact that matter is old one, hence trial court is directed to make all endeavour to decide the matter within three months after receiving the order of this Court. Parties will bear cost of the petition themselves.

Order Date :- 5.10.2017

Ranjeet Sahu