Sh. Virender Gupta vs Sh. Robinder Gupta And Others
2001 Latest Caselaw 1433 Del

ORDER

Sanjay Kishan Kaul, J.

1. The appellant filed a suit for partition and rendition for a accounts against the respondents in respect of property bearing No. 87, Sunder Nagar, New Delhi. The parties are brothers and sister. The partition was claimed on the basis that a family settlement dated 14.9.1982 had been recorded and the decree for partition should be passed in terms thereof and respondents 1 and 2 should be directed to render accounts. The suit was contested. The suit was opposed by respondent No. 2 who set up a will dated 31.8.1982 of late father of the parties Sh. T.N. Gupta. Respondent No. 2 claimed to be the beneficiary under the said will and claimed to be the owner of the entire share of the deceased father Sh. T.N. Gupta which was to the extent of 64% share in the total property. The execution of the family settlement dated 14.9.1982 was not disputed though it was claimed that the same was not valid and binding as it was under under influence of the appellant and out of respect for him that the family settlement was signed.

2. A probate petition was also filed by respondent No. 2 herein being Probate No. 46/1983 seeking probate of the will dated 28.7.1982 stated to have been executed by late Sh. T.N. Gupta. In the said probate proceedings on 26.9.89 an order was passed on an application filed by respondent No. 1 praying for readjustment in respect of portions in possession of all the parties of the suit property whereby the said application was dismissed. Aggrieved by the said order, respondent No. 1 herein preferred an appeal which was registered as FAO (OS) 248/89. It may be stated at this stage that in terms of family settlement dated 14.9.82, respondent No. 3 herein had agreed not to claim any share and the appellant, respondent Nos. 1 and 2 were to have share in the proportion of 30:30:40.

3. It appears that endeavor was made by the court in the appeal FAO (OS) No. 248/89 to settle the matter in controversy and on 14.2.90 the parties were directed to prepare a plan indicating the manner in which the property could be divided in the ratio of 40:30:30. This resulted in order dated 26.11.1990. The Court recorded that the parties are present in Court and it had been agreed between them that if the house in question being 87, Sunder Nagar, New Delhi was capable of physical division in three portions in the ratio of 30:30:40 and the 40% portion being on the ground floor, and that 40% portion going to the share of Mr. Nitendra Gupta, respondent No. 2, then in that case the physical partition of the property will be final and binding on all the three brothers. In order to carry out this exercise, Sh. S.P. Bawa, Architect was appointed as Local Commissioner to give report suggesting physical partition of the property and to suggest additions and alterations which may be necessary to divide the house into three independent units. It was further recorded that in order to make the compromise effective and binding on all the parties, formal agreement will be drawn up and signed by the parties and filed in court before the next date of hearing.

4. The Architect, Sh. S.P. Bawa therefore proceeded with his task. The appeal was listed on 6.9.1991 before the Court when an order was passed to the effect that the order dated 26.11.1990 had recorded certain arrangements between the parties and fee of the Architect had to be shared equally between the appellant, respondents 1 and 2 herein. Respondent No. 2 herein had not paid the fee of the Architect. On 19.11.1991 when the matter was listed, the Division Bench considered the question of non-payment of fee by respondent No. 2 herein. The Division Bench recorded the submissions of respondent No. 2 that he was to make the payment to the Architect only after formal agreement had been entered into in terms of the order dated 26.11.1990 but rejected the said interpretation of respondent No. 2. The fee was thereafter paid by respondent No. 2. The report was filed by the Architect to which certain objections were filed. The appeal was finally disposed of by the order dated 6.9.94. The said order recorded that on 26.11.90 an order for partition of the property was passed and the Architect was appointed as a Local Commissioner. it would be pertinent to extract relevant portion of the said order as under:

"In our view, inasmuch as the question of division of the property and in particular, the ratio has been fixed and a local commissioner has been appointed during the pendency of the appeal and objections are now invited as directed in the earlier orders of the Division Bench, ti will, in our opinion, be more advantageous to the parties if the objections are considered by a learned Single Judge of this Court on the Original Side in the suit itself. We, therefore, dispose of the appeal with the directions that the learned Single Judge on the Original Side shall take up further proceedings in the matter and dispose of the objections and the suit in accordance with law." (emphasis supplied)

5. Thus in terms of the said order seal of approval was put on the ratio in which the property is to be partitioned. The shares being fixed by the parties only the matter of disposing of the objections to the report of the Local Commissioner was left for being considered by the learned Single Judge. No appeal was filed against this order and this order become final and binding between the parties.

6. The suit and the Probate petition were thereafter listed before the learned Single Judge from time to time but the objections were not disposed of. The suit was listed on 21.8.2000 before the learned Single Judge when the plaintiff and defendant No. 2 were represented through counsel and defendant No. 1 was present in person. It was recorded by the learned Single Judge that Counsel for the parties on instructions and defendant No. 1 in person in the suit stated that parties had agreed to the sale of the suit property subject to the realisation of fair market value. It is further recorded that plaintiff and defendants No. 2 and 3 are not present and the suit was adjourned to 11.9.2000 in Chambers when parties were directed to be present in person. On 11.9.2000 the dates of trial were fixed in the suit and suit was adjourned to be listed before the Joint Registrar.

7. An application being IA No. 12676/2000 was filed by the appellant-plaintiff under Section 151 Code of Civil Procedure for recall of the order dated 11.9.2000. In the said application, a recital of what had happened in the appeal. FAO (OS) 248/89 was recorded and it was stated that since on August 21, 2000, the parties had agreed to the sale of the property in suit, nothing survived other then the sale of the property. it was further stated in view of the fact that share of the respondents had already been settled and the report of the Local Commissioner having been given up, the parties had agreed to sell the property. It was thus stated that in partition suit after recording of evidence the Court passed a preliminary decree. Since Division Bench had already passed an order declaring the share of the parties, only steps towards final decree had to be taken and no evidence was required in view of the agreement for sale of the property.

8. This application was contested by respondent No. 2 herein who is defendant No. 2 in the suit. It was stated in the reply that respondent No. 2 had throughout claimed that he was entitled to 40% share by which he should get ground floor of the property and that he was willing for sale of the remaining share and it was in these circumstances that the Division Bench vide its order dated 14.2.90 had directed the parties to prepare a plan for partition of the properties. It was further alleged that the compromise was consequently tentative and never attained finality especially in view of the formal agreement never having been filed before the Division Bench. It was also stated that no settlement in the present case could be recorded because there was no agreement on the fair market value and that respondent No. 2 had taken a consistent stand refusing to sell the portion of the property in which he has resided. It was also stated that subject to the aforesaid submissions, respondent No. 2 had only agreed to the sale of the share of other two parties. Reliance was also placed by respondent No. 2, on the order dated 19.1.2000 where learned Single Judge had recorded that since the reports submitted by three Local Commissioners for partition are not acceptable, same are rejected and the appellant was directed to make his own proposal for partition of the properties.

9. The aforesaid application filed by the plaintiff was dismissed by the learned Single Judge by the impugned order dated 10.1.2001.

10. We have heard Mr. S.C. Dhanda, learned counsel for the appellant, Mr. J.P. Singh, learned counsel for respondent No. 1 and Ms. Neha Bagchi, learned counsel for respondent No. 2.

11. The first aspect to be considered is the effect of the order dated 6.9.94 passed in FAO (OS) 248/89 and the proceedings subsequent thereto. Learned counsel for the appellant and respondent No. 1 has forcefully urged before us that the issue of share of the parties did not remain open after the said order and the only question which remained was of the division of the property in question. On the other hand Ms. Neha Bagchi, learned counsel for respondent No. 2 opposed this submission on the ground that the basis of the settlement proposed before the Division bench was the division of the property and this was apparent from the order passed on 14.2.90. Thus it was contended that the order dated 26.11.90 was in furtherance of the order dated 14.2.1990 and the affect of the two orders read together would show that the shares had been agreed upon only if the property was agreed to be divided. Thus Ms. Neela Bagchi contended that this question is open and in view of the settlement talks having failed, the suit had been set down for trial.

12. We are unable to agree with the contentions advanced on behalf of respondent No. 2 by learned counsel. The order dated 6.9.94 gave a final seal of approval to the ratio fixed. The Division bench categorically recorded that in their view the question of division of the property and in particular the ratio had been fixed. This order has not been challenged in appeal. It is thus not open to any party to contend that the share of the appellant, respondent No. 1 and respondent No. 2 herein is other than 30:30:40. In fact, the order dated 6.9.94 of the Division bench clearly amounts to a preliminary decree and the only question left to be decided was the mode of division of the property in question.

13. The Local Commissioner has submitted reports from time to time. It is no doubt true that in the order dated 19.1.2000,learned Single Judge has recorded the fact that the report submitted by the Local Commissioner suggest that partitions proposed are not acceptable to the parties. Thereafter also various suggestions and counter suggestions have been mooted.

14. It was in these circumstances that on 21.8.2000 the matter was listed before the learned Single Judge when it was stated that parties had agreed to the sale of the suit property but since the plaintiff and defendants 2 and 3 were not present, the matter was adjourned to 11.9.2000.

15. It is thus clear that on 11.9.2000 there was no positive instruction by respondent No. 2 for agreement to sell the property and it was in these circumstances that learned Single Judge fixed the matter for dates of trial.

16. We are also thus unable to agree with the submission of learned counsel for the appellant that the order dated 21.8.2000 attained finality and property is liable to put to sale as the mode of division cannot be agreed upon.

17. Learned Single Judge was not in agreement with the contention of the learned counsel for the appellant that he had never recorded such a settlement. Learned Judge presiding in the Court was same on both the dates viz. 21.8.2000 and 11.9.2000. These discussions show that there was only tentative agreement for sale of the property in question which was subject to the recording of settlement of the parties. Respondent No. 2 did not subsequently agree to the same.

18. The question, however, survives whether order dated 11.9.2000 should have been passed to fix the dates of trial. In our considered view, there is no question arising in the suit to be set down for trial. The order of the Division Bench dated 6.9.94 having attained finality, we are of the considered view that the shares of the parties stand declared and thus it amounts to a preliminary decree. The agreement of the parties of a mode of partition is not necessary for passing of final decree when the learned Single Judge has to consider report of the Local Commissioner, irrespective of the stand of the parties and come to a conclusion for appropriate mode of division of the property. If the learned Single Judge comes to the conclusion that the property is not partible, the consequences would follow including the property being put to sale. There is no order on record to show any such conclusion has been arrived at by the learned Single Judge. The efforts seem to have been to make the parties agree to a mode of partition but the same has not been fruitful. Learned Single Judge thus has to proceed on the consideration of the reports of the Local Commissioner on merit irrespective of the stand of the parties and take into consideration the arguments advanced by the parties on the basis of the record and arrive at his own conclusion about the feasibility of the division of the property in terms of the order of Division Bench dated 6.9.1994. In case of his coming to the conclusion that it is not possible to partition the property by metes and bounds in the said ratio it will be for the learned Single Judge to proceed further and pass appropriate orders in accordance with law including sale of the property. On the conclusion of the aforesaid, a final decree would be passed.

19. The result is that the impugned order dated 10.1.2001 as well as the order dated 11.9.2000 are set aside.

20. Learned Single Judge shall treat the order of the Division Bench dated 6.9.94 as a preliminary decree declaring the share of the parties herein between the appellant respondent No. 1 and respondent No. 2 as 30:30:40 and proceed to consider the report of the Local Commissioners and objections thereto to arrive on his own conclusion on feasibility of the partition of the property in suit being property No. 87, Sunder Nagar, New Delhi. In case the property is found to be impartible by metes and bounds then the property would be liable to put to sale in accordance with law on terms and conditions as may be considered appropriate by the learned Single Judge or any other order as may be considered appropriate in accordance with law sill be liable to be passed.

21. The appeal is allowed in the aforesaid terms and the parties are left to bear their own costs.

22. The suit No. 1675/84 and Probate Case No. 46/83 which are consolidated by earlier orders be listed before the learned Single Judge for appropriate directions on 24.9.2001.