Delhi High Court
Dr. Harish Uppal vs Mr. J.N. Uppal & Ors. on 18 March, 2009
Author: Sanjay Kishan Kaul
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ EFA (OS) No. 9/2009
% Date of decision : 18.03.2009
DR. HARISH UPPAL ... ... ... ... ... ...APPELLANT
Through : Appellant in person.
-VERSUS-
MR. J.N. UPPAL & ORS. ... ... ... ... RESPONDENTS
Through : Nemo.
CORAM :
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
1. Whether the Reporters of local papers
may be allowed to see the judgment? No
2. To be referred to Reporter or not? No
3. Whether the judgment should be
reported in the Digest? No
SANJAY KISHAN KAUL, J. (ORAL)
CM No. 3732/2009
Allowed subject to all just exceptions.
+ EFA (OS) No. 9/2009
1. The cause title of the case in the file as well as in the cause
list is incorrectly shown and should be corrected as per the
memo of parties. It should read as 'Dr. Harish Uppal v. Mr.
J.N. Uppal & Others'.
2. The present appeal has been filed by the appellant in
person against the Order dated 22.01.2009 passed by
learned Single Judge in EA Nos. 494-495/2008 in Ex. P. No.
102/2002 whereby the learned Single Judge directed that
public auction must take place in respect of the two
properties forming subject matter of dispute, i.e., (i) 20,
Todal Mal Road, New Delhi - 110 001; and (ii) 9A/50, WEA,
Karol Bagh, New Delhi - 110 005.
3. It is pertinent to notice at the very outset that a similar
appeal against the same impugned order had been filed by
one of the parties, namely, Ms. Indira Uppal, which was
registered as EFA (OS) No. 6/2009. The said appeal came
up before us on 02.03.2009 and was dismissed in the
following terms :-
"The dispute in the present matter is between the
brothers and sisters over inherited estate which has
been going on for 20 years. The second round of
litigation began when the execution proceedings
were taken out. The objections to the execution
proceedings were dismissed on 02.05.2008 and it
was directed that, at the first instance, the prospect
of inter se bidding should be explored. The lack of
harmony between the parties is to such an extent
that even this proposal of inter se bidding did not
work out even though valuation was got done
through the valuer in respect of the two properties
which are subject matter of dispute i.e. 20, Todar
Mal Road, New Delhi - 110 0001 and 9A/50, WEA,
Karol Bagh, New Delhi - 110 005.
The appellant, one of the sisters, is aggrieved by
the impugned order dated 22.01.2009 passed by
the learned Single Judge on the Original Side
directing that public auction must take place in
respect of both the properties.
It was the plea of the appellant before the learned
Single Judge, which is also the plea urged before us,
that the appellant is desirous of opting to purchase
the full Karol Bagh property at the valuation done
by the valuer. Unfortunately, the respondent nos.1
to 3 are aggrieved by the valuation as according to
them it is on the lower side. There is differential in
the value of the properties and what the appellant
desires is that her share of 20 per cent in the Todar
Mal Road property should be adjusted against the
amount payable to the other co-sharers in the Karol
Bagh property and this property i.e. the Karol Bagh
property be transferred to her.
The dispute is not only in respect of the valuation
of the properties but the claim by the appellant as
the same claim is also made by respondent no.2
herein as he also wants to buy the Karol Bagh
property.
It is in view of the aforesaid position that the
learned Single Judge found that the principle of
owelty would not assist in the present case as the
said principle requires that a preference to be given
to the person already living in the property and the
respondent no.2 has also been living in the same
property. Thus, both the appellant and respondent
no.2 claim preferential rights on the principle of
owelty.
The consequence of the aforesaid is that there
was no option for the learned Single Judge but to
put the properties to auction.
The matter is fixed on 30.03.2009 for fixing the
mode of auction and date of auction.
Needless to say that the minimum price for such
auction would at least be equal to the valuation
given by the valuer and the parties would be
permitted to bid to the exclusion of their share in
the relevant properties.
The appeal is accordingly dismissed with the
aforesaid observations."
4. The appellant, who conceded that he was in Court when
the aforesaid Order was passed, submits that there are
other aspects, which he would like to urge, which may
persuade us to not only issue notice in this appeal, but also
to even recall the aforesaid Order. We, thus, proceeded to
hear the appellant.
5. The first submission of the appellant is that in terms of
Section 2 of the Partition Act, 1893 ( hereinafter referred to
as, 'the said Act' ), the occasion for putting the property to
sale would arise only when a division of the property
cannot reasonably or conveniently be made. The provision
reads as under :-
"2. Power to court to order sale instead of
division in partition suits. -- Whenever in any
suit for partition in which, if institution prior to the
commencement of this Act, a decree for partition
might have been made, it appears to the court
that, by reason or the nature of the property to
which the suit relates, or of the number of the
shareholders therein, or of any other special
circumstance, 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, if it thinks fit, on the
request of any of such shareholders interested
individually or collectively to the extent of one
moiety or upwards, direct a sale of the property
and a distribution of the proceeds.
The appellant submits that between the five moiety
holders, reasonable division is possible.
6. We find the aforesaid plea unsustainable. The occasion for
sale arose only when no feasible division was possible. We
again cannot lose sight of the fact that the matter has
dragged on for 20 years and the parties must get the
benefit of enjoyment of their respective shares.
7. The second plea of the appellant is that in terms of sub-
section (2) of Section 3 of the said Act, if two or more
shareholders severally apply for leave to buy as provided
in sub-section (1) of Section 3 of the said Act, the sale of
the share or shares should be only by inter se bidding
between those two parties and not by a public auction.
8. The appellant referred to the judgment of the Supreme
Court in R. Ramamurthi Aiyar (dead) by L.R.s v. Raja V.
Rajeswararao, AIR 1973 SC 643 to support both the pleas
in respect of Section 2 and Section 3 of the said Act. On
perusal of the judgment, we find that insofar as the plea of
Section 2 of the said Act is concerned, the Supreme Court
only clarifies that all that is required to be decided is that
the division cannot reasonably or conveniently be made
and that is apparent from the impugned order. The ambit
of Section 3 of the said Act has been explained that as
soon as a shareholder applies for leave to buy at a
valuation the share of a party asking for sale under Section
3 of the said Act, he obtains an advantage and that court is
bound thereafter to order valuation and after getting the
same done to offer to sell the same to such shareholder at
the valuation so made. We fail to appreciate how this
judgment would come to the assistance of the appellant
where there are disputes about valuation and competing
interests even for sale of the same property. The object of
the impugned order is to obtain the best possible price by
putting the properties to public auction.
9. The appellant also referred to the judgment of learned
Single Judge of this Court Hari Dev Shourie v. Madan
Mohan Shourie & Ors., AIR 1980 Delhi 59 where it was held
that the party seeking sale of its share and the court
directing sale by public auction, the application for
purchase of the property by the co-sharer is not
maintainable as the time for making such application is
when the court is requested to direct the sale of the
property. Once again, this judgment is of little help to the
appellant. In fact, it was put to the appellant that the
appellant or any other co-sharer could always participate
in the auction to the exclusion of his / her share in the said
property for which we are inclined to grant relief. We find
no merit in the appeal.
10. Dismissed.
CM No. 3731/2009
Dismissed.
SANJAY KISHAN KAUL, J.
March 18, 2009 SUDERSHAN KUMAR MISRA, J.
madan
