Dr. Sukhdev Singh Gambhir vs Shri Amrit Pal Singh Gambhir & Anr.
2009 Latest Caselaw 65 Del

     *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  CS(OS) 1560/2006

%13.01.2009                       Date of decision: 13.01.2009


DR. SUKHDEV SINGH GAMBHIR                      ....... Plaintiff
                       Through: Mr. Madhu Mukul Tripathi, Advocate

                               Versus

SHRI AMRIT PAL SINGH                           ..... Defendants
GAMBHIR & ANR.
                       Through:   Mr. Sanjay Jain, Sr. Advocate for the
                                  defendant No.1 with defendant No.1
                                  in person.
                                  Ms. Maninder Acharya, Advocate for
                                  the defendant No.2


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

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 the judgment should be reported
      in the Digest?                        Yes


RAJIV SAHAI ENDLAW, J.

1. This order is necessitated on the plea of the defendants

No.1&2 that the plaintiff in this suit for partition had in the year

2004 applied for sale of the property under Section 2 of the Partition

Act, 1893 and the defendants are entitled to purchase the share in

the property of the plaintiff at the valuation of the year 2004. The

plaintiff denies having so applied for sale and further contests the

position that he is liable to sell his share in the property to the

defendants at the valuation of the year 2004. The proceedings in

this suit are of relevance for adjudication of the said matter in

controversy.

2. The property subject matter of suit is 13A/6A Western

Extension Area, Karol Bagh, New Delhi comprising of a ground, first

and a second floor. The plaintiff, on or about 16th August, 1994

instituted a suit in the court of the District Judge, Delhi for partition

of the said property inter-alia on the ground that he and his two

brothers the defendants to the suit were the owners of 1/3 undivided

share each of the said property under the will of their grandmother,

that while the plaintiff was in possession of one room on the first

floor of the property, which had been kept locked by him after

moving out of the property owing to paucity of accommodation, the

defendants were in use of the entire remaining property. The

plaintiff in the said plaint of 1994 valued his 1/3 share in the

property at more than Rs.3 lacs.

3. The defendants filed the written statement inter-alia pleading

that the court of the Additional District Judge before whom that suit

was filed did not have the pecuniary jurisdiction to try the suit and

that the property already stood partitioned between the plaintiff and

the defendants as per the oral family settlement of January, 1994

whereunder the entire second floor along with the rights to raise

further construction had fallen to the share of the plaintiff and the

entire ground floor and the entire first floor had fallen to the share of

the defendants.

4. It appears that the learned Additional District Judge before

whom the suit was then pending took up the matter of pecuniary

jurisdiction first. Vide order dated 5th June, 1997, the learned

Additional District Judge whose maximum pecuniary jurisdiction then

was of Rs.5 lacs held that since as per the plaintiff's own showing the

value of his 1/3 share was more than Rs.3 lacs, the value of the

entire property would be minimum Rs.9 lacs; that the value of a suit

for partition for the purposes of jurisdiction had to be the value of

the entire property and not just of the share of the plaintiff; that

thus the court of the Additional District Judge did not have the

pecuniary jurisdiction to entertain the suit. The plaint was

accordingly ordered to be returned to the plaintiff.

5. That the plaintiff thereafter in or about February, 1998

instituted the suit for partition before this court. The defendants

after service of summons took several adjournments on the plea that

the parties were negotiating settlement. Ultimately on 26th

September, 2000, the defendants were directed to file the written

statement. Thereafter costs were imposed on the defendants for not

filing the written statement. The written statement was ultimately

filed in or about December, 2002 i.e. after more than four years of

the institution of the suit in this court. While reiterating the pleas

taken in the written statement filed before the Additional District

Judge, in addition it was also pleaded that the plaintiff had not filed

the same plaint which was ordered to be returned and as such there

was a technical defect in the institution of the suit. An application

under Order 7 Rule 11 of the CPC was also filed in this regard.

6. However, in the meanwhile there was a change in the

minimum pecuniary jurisdiction of this court and the plaint having

been valued at Rs.9 lacs, the suit vide order dated 27th September,

2003 of this court was ordered to be transferred to the District

courts.

7. On 4th December, 2003 both the defendants made statements

before the learned Additional District Judge to the effect that without

prejudice to their contentions in the written statement and their

rights, they admitted the plaintiff to be having 1/3 share in the

property and that the mode of partition shall be discussed by the

parties and will be reported to the court. The plaintiff also made a

statement to the effect that discussions will be held as to the mode of

partition. The record reveals that the suit was thereafter adjourned

on 2nd January, 2004, 16th January, 2004, 20th January, 2004 on the

request of the paties for reporting compromise. On 12th March, 2004

the court recorded that no compromise had been reported and

directed the parties to "come out with different proposals of

modalities of compromise on 8th April, 2004". On 8th April, 2004 it is

recorded that the plaintiff had given a proposal to the defendants

with respect to modalities of partition, the defendants to consider the

same and in case it is not acceptable to the defendants, the

alternative proposal may be filed by the defendants on 3rd May, 2004.

On 1st June, 2004, the defendant No.1 and the defendant No.2 gave

their respective counter proposals and the matter was adjourned for

compromise. Even thereafter on 9th July, 2004, 24th July, 2004, 21st

August, 2004, 2nd September, 2004, 14th September, 2004, 17th

September, 2004, 12th October, 2004, 29th October,2004, 17th

November, 2004, 17th December, 2004, 10th January, 2005, 2nd

February, 2005, 7th February, 2005, 9th February, 2005, 11th

February, 2005, 10th March, 2005, 21st March, 2005, 11th April, 2005

& 26th April, 2005 the matter was adjourned, mostly on request of

the parties to enable them to explore compromise. On 4 th July,2005

it was recorded by the learned Additional District Judge before whom

the suit was then pending that the compromise talks had failed. It

appears that the counsel for the plaintiff requested that in view of

the statements made on 4th December, 2003, the preliminary decree

for partition needed to be passed but the counsel for the defendants

opposed the said request. Accordingly, the matter was posted for

arguments on the said aspect. The counsel for the defendants

contended that the statements on 4th December, 2003 had been

made without prejudice to the contentions raised in the written

statement and thus preliminary decree could not be passed and

issues needed to be cast/framed on the pleas of the defendants in the

written statement. It was further urged that the plaint itself was not

properly constituted and for which reason an application under

Order 7 Rule 11 (Supra) was filed when the suit was pending before

this court and there being no valid suit, no statements as on 4th

December, 2003 binding the defendants could be recorded.

8. The learned Additional District Judge vide Order dated 29th

October, 2005 negatived the aforesaid contentions of the defendants

and held the suit to have been validly instituted and on the basis of

the statements made on 4th December, 2003 passed a preliminary

decree for partition declaring the plaintiff and the two defendants to

be having 1/3 share each in the property. A local commissioner was

also appointed to partition the property by metes and bounds.

9. The record reveals that the defendants preferred RFA

No.836/2005 to this court against the preliminary decree aforesaid.

The said appeal was disposed of on 25th May, 2006 on consent terms

and in terms whereof the Order of the learned Additional District

Judge passing the preliminary decree was modified. It was held by

the division bench of this court that since on the averments in the

written statement of the defendants also there was no dispute that

the parties had 1/3 share each in the property, the Order passing the

preliminary decree declaring each of the parties to be having 1/3

share need not be interfered with. It was further held that since the

statements by the defendants on 4th December, 2003 were without

prejudice to their rights and contentions, they were entitled to an

opportunity to prove their case before the final decree was passed.

The defendants were thus given liberty to prove that the property

already stood partitioned by the oral family settlement of January

1994 and the parties were in possession of their respective shares

and were bound by the said oral family settlement. The division

bench of this court appointed another court commissioner to make a

report including as to whether the stand of the defendants of oral

family settlement was correct or not.

10. However, it appears that an Order dated 20th July, 2006 was

made in CS(OS) No.353/2006 pending before this court between the

same parties, of transfer of the present suit from the court of the

Additional District Judge to this court. Accordingly, the suit was

transferred to this court and given the No. CS(OS)1560/2006. It will

thus be seen that the lis originated in 1998 if not in 1994, though

appears to be of 2006.

11. After the suit was transferred to this court, on 10th October,

2006 the counsel for the defendants stated that the defence of an

oral partition as taken in the written statement was not being

pressed and a preliminary decree be formally passed in terms of the

order aforesaid of the division bench. Accordingly, with the consent

of the parties, a preliminary decree for partition was passed

declaring the share of each party in the suit as 1/3 rd each. The role

of the local commissioner appointed by the Division Bench was as

such confined to only report as to whether the property was capable

of partition by metes and bounds. Thereafter, the suit was

adjourned from time to time awaiting the report of the local

commissioner. On 13th February, 2008 the report had been filed and

the counsel for the parties sought time to consider the same and to

make submissions thereon.

12. The local commissioner in his report opined that division by

metes and bounds was possible only if the property was to be divided

floorwise; however there was a difference in the valuation of each

floor and which difference could be equalized monetarily; that the

parties had been unable to do the same before the local

commissioner. The commissioner as such reported that if floorwise

division was not worked out, the property was impartible.

13. On 4th September, 2008, the order sheets shows that attempt

was made by this court to settle the matter and several suggestions

were given; the court felt that the defendants being in possession of

the property wanted to prolong the matter and did not want to settle

the matter.

14. On 17th September, 2008, the senior counsel for the defendant

No.1 stated that the plaintiff had first applied for sale of the property

in 2004 and thus only the valuation of plaintiff's 1/3 share in 2004

was to be determined and the defendant No.1 was willing to pay the

same. The counsel for the plaintiff, on the contrary, contended that

the plaintiff had never applied for sale in the year 2004 and was

entitled to the current value of his share of property, if the defendant

No.1was interested in buying the same. The matter was posted for

hearing on this limited aspect. The counsels have been heard.

15. Section 2 of the Partition Act, 1893 provides that where it

appears to the court that a division of the property cannot

reasonably or conveniently be made and that sale of the property

and distribution of the proceeds would be more beneficial for all

shareholders, the court on the request of any of the shareholders

interested individually or collectively to the extent of one moiety or

upwards direct sale of the property and distribution of the proceeds.

Section 3 further provides that where court is so requested, any

other shareholder may apply for leave to buy at a valuation the share

of the party asking for a sale and the court shall then order a

valuation of the share and offer the said share to the shareholder so

applying, at the valuation determined by the court.

16. For the aforesaid provisions to apply it has to be seen as

whether the plaintiff has applied within the meaning of Section 2 and

whether the defendant No.1 at this stage can exercise the option

under Section 3 of the Act.

17. The senior counsel for the defendant No.1 has contended that

the plaintiff had applied for sale in the year 2004. The suit was

pending before the learned Additional District Judge from 19th

November, 2003. The statements were made by the parties before

the learned Additional District Judge on 4th December, 2003 and till

4th July, 2005 the matter was being adjourned for compromise. The

defendant No.1 relies upon a proposal of

April, 2004 filed by the plaintiff before the court of the Additional

District Judge, Delhi. The plaintiff therein had proposed that he be

given the ground floor portion of the property against his 1/3 share

and the first, second and upper floors be taken by the defendants in

lieu of their 2/3 shares in the property; that the parents of the parties

can continue to reside on the ground floor during their lifetime; it

was further stated that if the said proposal was not acceptable to the

defendants "then the suit premises be sold with active participation

of the plaintiff and the defendants and the sale realizations be

divided equally amongst the plaintiff and the defendants

No.1&2........". The plaintiff also stated that he was open to consider

any alternative just proposal as may be considered feasible after

perusal of the proposal, if any, submitted by the defendants.

18. The aforesaid proposal was filed by the plaintiff in terms of the

order dated 12th March, 2004 which was as under:-

"Present - plaintiff in person with Shri Sanjeev Dutta, Proxy Counsel.

Defendant No.2 in person with Shri Anil Gera, Advocate.

No compromise has been reported. The defendant had made a statement that they admit that the plaintiff has 1/3rd share in the suit property. The modalities of compromise were to be discussed between the parties. Let the parties come out with different proposal of modalities of compromise on 8.4.2004.

Sd/-

ADJ,Delhi"

19. After the plaintiff filed the aforesaid proposal the defendants

on 8th April, 2004 sought time to consider the same and to give the

alternative proposals, if any. The defendants gave their alternative

proposals as herein above recorded and after several adjournments

ultimately on 4th July, 2005 it was recorded that the compromise

talks had failed and the matter was listed for arguments as aforesaid.

20. In my view, the aforesaid proposal of the plaintiff cannot be

said to be a request for sale of the property within the meaning of

Section 2 of the Partition Act.

21. A request under Section 2 of the Partition Act can be made by

a shareholder interested to the extent of one moiety or upwards in

the property. Black's law Dictionary, 6th Edition defines moiety as the

half of anything. A Division Bench of this court in Faquira v Smt

Raj Rani AIR 1984 Delhi 168 has held that the court can only order

a sale if requested to do so by the owners of 50 per cent share in the

property or more. It was held that problems in partition suits cannot

be lost sight of - there is a possibility that the smaller shareholder

can be thrown out and rendered homeless by sale - to guard against

this possibility, the court is given power to direct a sale only at the

instance of the owners of a 50% share or more. We are of course at

this stage not concerned with the power of the court independently

of Section 2, to order sale of property subject matter of partition and

in which sale, the question of defendants having option, as under

Section 3, does not arise. Thus, a shareholder who is entitled to

apply under Section 2 is a shareholder having minimum one half

share in the property. In the present case the plaintiff admittedly

had only 1/3 share in the property and thus the request even, if any,

of the plaintiff having only 1/3 share in the property does not qualify

as a request under Section 2 of shareholders interested individually

or collectively to the extent of one moiety or upwards.

22. A request under Section 2 has to be a request to the court

either orally or in writing. The plaintiff in the present case did not

make any request whatsoever to the court. Though the proposal

was filed in the court on 8th April, 2004 but the same was in

pursuance to the Order dated 12th March,2004. Prior thereto, since

4th December, 2003 when statements of the parties were recorded,

the suit had been adjourned several times to enable the parties to

amicably compromise the matter. The court finding the parties

unable to so arrive at a settlement themselves, on 12th March, 2004

directed the parties to place their proposals before the court. While

the plaintiff placed his proposal on the next date i.e. 8th April, 2004

the defendants did not do so. The defendants did not accept the

proposal of the plaintiff but gave their own proposals and which

were not acceptable to the plaintiff. Ultimately, failure of

compromise was recorded by the court.

23. The question which arises is whether such proposal given

during compromise talks can be said to be a request within the

meaning of Section 2. Under the CPC as amended in 2002, a duty

has been cast upon the court to explore the possibility of settlement

and alternative means of adjudication of disputes and controversies

between the parties under Section 89. Several offers and counter

offers may be exchanged between the parties during such parlays. If

the parties are permitted to seek order/judgments on what

transpires during the said process, the same will seriously hinder the

settlement attempts by the courts. The parties would be loathe to

give offers and counter offers lest the same are held against them in

the event of the compromise attempts failing. Section 81 of the

Arbitration and Conciliation Act 1996 also prohibits the parties from

relying upon and or introducing in evidence in arbitral or judicial

proceedings, views expressed or suggestions made by the other

party in respect of possible settlement of the dispute or admission

made by the party in the course of conciliation proceedings. Section

23 of the Indian Evidence Act is to the same effect. The courts ought

not to allow such a procedure which would be contrary to the spirit

of introduction of Section 89 in the CPC and which will negate the

same. I find that the proposal relied upon by the senior counsel for

the defendant No.1 as a request of the plaintiff for sale was in the

course of compromise attempts/proceedings between the parties and

was not a request to the court envisaged under Section 2. The Apex

Court in Badri Narain Prasad v Nil Ratan Sarkar AIR 1978 SC 845

has held that the request for sale envisaged by Section 2 is the sine

qua non for directing a sale and if no such request has been made to

the court, Section 3 cannot be brought into operation.

24. Section 2 even otherwise requires a request for sale for the

reason of division of property being not reasonable or convenient. In

the present case, the request relied upon does not state that such

division of the property is not reasonable or convenient. On the

contrary the same first states that the division is possible and

suggests the mode of division. It is only in the alternative that the

plaintiff stated that if the division proposed was not acceptable to the

defendants the property be sold. This alternative was also qualified

with openness for any other proposal of the defendants. There was

thus no statement lest unequivocal statement as required by Section

2 of the Division being not reasonable or convenient. The court also

did not treat the same as a request under Section 2 and did not at

any time hold that it appeared that it was not reasonable or

convenient to divide the property.

25. The conduct of the defendants after 8th April, 2004 is also

relevant. The defendants did not then treat the proposal aforesaid of

the plaintiff as a request under Section 2 of the Act. On the contrary

the defendants as per the orders of the court submitted their own

proposals for division of the property. Even after the compromise as

to division of the property failed, the defendants did not state that

the property be sold in terms of the alternative proposal (Supra) of

the plaintiff. On the contrary, the defendants contended that issues

needed to be framed and trial ordered and even preliminary decree

in terms of their statements recorded on 4th December, 2003 could

not be passed. After the said plea of the defendants was negatived

by the court of the Additional District Judge, the defendants pressed

the said plea before the division bench of this court in appeal. The

division bench accepted the said plea of the defendants and passed a

consent order that the plea of the defendants of oral family

settlement/or division of the property in January, 2004 shall be gone

into before passing the final decree. It is only thereafter that the

defendants on 10th October, 2006 gave up the said plea. The

defendants thereafter participated in the proceedings before the

commissioner appointed by the division bench and whose scope was

modified vide order dated 10th October, 2006 for exploring division of

the property. In my view the defendants cannot now turn around

after four years and apply under Section 3 of the Act for valuation to

be affected. The senior counsel for the defendants has relied upon

Ms. Malati Ramchandra Raut Vs. Mahadevo Vasudeo Joshi AIR

1991 SC 700 laying down that it is the duty of the court to order

valuation of the shares of the party asking for sale under Section 2

and to offer the same to the party applying for leave to buy in terms

of Section 3. It was further held that as soon as the request for sale

is made, the other shareholders become immediately entitled to

make an application under Section 3 and the right to buy becomes

crystallized. In the circumstances, it was held that the date with

reference to which the valuation of the shares is to be made is the

date on which the right arose. In that case in the plaint dated 17 th

May, 1972 itself it was avered that the properties could not be

reasonably and conveniently divided and be sold; the summons were

issued to the defendants on 26th June, 1972 and the defendants on 5th

July, 1972 stated that they were prepared to buy the share of the

plaintiff. The plaintiff thereafter sought to amend the plaint to

withdraw the averment of the properties being incapable of division

and of sale and the said amendment was disallowed. The appeal

preferred by the plaintiff against the disallowance of amendment was

dismissed on 1st April, 1977. It was in that context that the Apex

court held that the right to purchase accrued on 5th July, 1972 when

the defendants offered to buy the share of the plaintiff and not of the

time when the valuation was being done. On the basis of the said

judgment the senior counsel sought to urge that since the plaintiff

had requested for sale in 2004, the valuation of 2004 and not of 2008

when the defendants, for the first time, applied for purchase was to

be adopted. However, the said contention is not supported by the

judgment itself. A reading of the judgment would show that in that

case also the Apex court held the right of sale to have crystallized on

the date when the defendants filed their affidavits seeking to buy and

not on the date when the plaintiff requested for sale. In the present

case even if the plaintiff is deemed to have requested for sale on 8th

April, 2004, the defendants having not applied for purchase, are not

entitled to valuation, if any, of 2004 but would have been entitled of

2008 only when the defendants for the first time sought to act on the

purported request of the plaintiff for sale.

26. I feel that de hors the said judgment also it would be highly

inequitable and unjust and contrary to the constitutional and natural

rights of the plaintiff to hold that the valuation is to be of the date of

the request of sale. The scheme of Sections 2&3 of the Partition Act

is that in the event of any party applying for sale, the other party, if

any, wanting to purchase has to apply immediately. The other party

is not entitled to prolong the matter and to first contest the request

for sale and only after such contest is declined to thereafter, after

several years compel the party to sell at the valuation of the date of

the request. This would tantamount to be placing the party making a

request for sale at a disadvantageous position qua the party opting

to purchase.

27. In the present case the defendants not only did not apply for

purchase treating the proposal dated 8th April, 2004 as request for

sale but on the contrary urged and succeeded in this court in appeal

as aforesaid holding that the plea of the defendants of oral family

settlement will be entertained even after the preliminary decree.

What has transpired after 8th April, 2004 leads to an unequivocal

conclusion that neither there was a request by the plaintiff for sale

and even if there was any such request, the same stood withdrawn

and or superseded by the subsequent proceedings. It did not appear

to this court also at any stage that it would not reasonable or

convenient to divide the property. On the contrary after 8th April,

2004 also the modalities for division of the property were being

proceeded with. I may also notice that the defendant No.1in

response to the proposal dated 8th April, 2004 of the plaintiff (Supra)

made his proposal dated 24th July, 2004 in which he stated that he is

ready to purchase the share of the plaintiff but on the basis of the

valuation put by the plaintiff in the suit i.e., of Rs.3 lac. The

defendant No.2 also at that stage did not ask for valuation to be

affected.

28. For the reasons aforesaid, I do not find the plaintiff to have

made a request for sale within the meaning of Section 2 of the

Partition Act and hence the question of the defendant No.1applying

for purchase within the meaning of Section 3 of the Partition Act

does not arise. On the contrary I find the stand of the counsel for the

defendant No.1 to be malafide, dilatory and vexatious in

continuance of the conduct noted in the Order dated 4th September,

2008 (Supra). The defendant No.1 is in the circumstances burdened

with costs of Rs.25,000/- payable to the plaintiff within four weeks.

On the failure of the defendant No.1 to pay the said costs, the same

shall be recovered from the share of the defendant No.1 in the

property.

RAJIV SAHAI ENDLAW (JUDGE) January 13, 2009 PP