Indira Uppal vs J.N.Uppal & Ors.
2009 Latest Caselaw 218 Del

  *            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,

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

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.

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.

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

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.
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