Delhi High Court

Shri Surender Kumar Gupta vs Shri Mahender Kumar Gupta on 17 August, 2011

Author: Indermeet Kaur

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 17.8.2011

+REVIEW PETITION NO.510/2010 & CM No.4731/2011 IN
CM(M) No.1275/2010


SHRI SURENDER KUMAR GUPTA             ...........Appellant
                  Through: Mr.Rakesh Kumar Khanna, Sr.
                           Advocate with Mr.Lait Gupta
                           and Mr.Vishal Panwar,
                           Advocates.
             Versus

SHRI MAHENDER KUMAR GUPTA                        ..........Respondent
                 Through: None.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?               Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J. (Oral)

1. This is a review petition seeking review of the order dated

26.10.2010 whereby the petitioner's challenge to the order dated

21.8.2010 had been dismissed. Vide order dated 21.8.2010 the

plaintiff had sought the grant of pre-emptive right to buy the

share of the defendant; application filed by him under Section 3(1)

of the Partition Act 1893 had been dismissed.

2. Record shows that the plaintiff had filed the present suit

seeking partition of the suit property i.e. property bearing no.11,

Birbal Road, Jangpura Extension, New Delhi; suit was filed in

1982. Plaintiff and the defendant are real brothers and sons of

Bhagwan Dass Vaish. The house was owned by all three of them

of them in equal shares. After the death of the parents, the

plaintiff and the defendant became joint owners of the property in

equal shares. Plaintiff has filed the present suit for partition. The

contention of the defendant was that the partition of the suit

property had already been effected in terms of the family partition

deed. A preliminary decree for partition had been passed on

22.12.2003. To facilitate the passing of the final decree a local

commissioner had been appointed to suggest the mode of

partition. The report of the local commissioner is dated

01.3.2004. The local commissioner had opined that the suit

property cannot be divided by metes and bounds; objections to

this report had been filed by the plaintiff to which a reply had

been filed; on 17.5.2005, the court had passed an order that in

view of the report of the local commissioner, since the property

cannot be divided by metes and bounds, the property be put to

sale by public auction; final decree was also directed to be

prepared.

3. The order dated 17.5.2005 was the subject matter of appeal.

The appellate court vide order dated 13.12.2006, after noting the

contention of both the parties was of the view that the objections

filed to the report of the local commissioner have not yet been

decided and as such the matter was remanded back to the trial

court with a direction to the trial court to decide the objections

filed by the parties to the report of the local commissioner and

thereafter to pass final decree in accordance with law. Needless

to state that what the trial court had been asked to do was to

decide as to whether the report of the local commissioner that the

property is divisible by metes and bounds is a correct report or

not; this had to be decided after dealing with the objections filed

by the plaintiff as also the reply given by the defendant to the said

objections. This finding in terms of the order dated 13.12.2006

has not yet been returned.

4. On 18.9.2007 the concerned court had heard arguments on

the objections filed against the report of the local commissioner;

he had ordered the appointment of a new local commissioner to

which objections had been filed by the plaintiff on 22.9.2007.

Simultaneously an application under Section 3 of the Partition Act

for grant of a pre-emptive right to buy the share of the defendant

has also been filed.

5. Contention before this Court is that in view of the judgment

of the Apex Court reported in (1972) 2 SCC 721 R. Ramamuthi

Iyer Vs. Raja V. Rajeswara Rao a pre-emptive right accrues to a

party to purchase the share of the other party, the moment it has

been conceded by the other party that the property cannot

reasonably and conveniently be divided by metes and bounds.

The contention of the petitioner/plaintiff is that the defendant had

set up a plea that it is not possible to divide the property metes

and bounds; in this view of the matter in terms of the Section 3(1)

of the said Act his pre-emptive right would immediately accrue in

his favour. The impugned order dismissing this application of the

petitioner suffers from an illegality. To support this same

submission reliance has also been placed upon a judgment of Apex

Court reported in 1991 Supp(1) SCC 321 Malti Ramchandra Raut

Vs. Mahadevo Vasudeo Joshi as also another judgment of this

Court reported (1986) 4 SCC 505 Dr.Kishore Chand Kapor & Ors.

Vs. Dharam Pal Kapoor & Ors.

6. Section 3(1) of the Partition Act reads as under:-

3. Procedure when sharer undertakes to buy.-

(1) If, in any case in which the Court is requested under the last foregoing section to direct a sale, any other shareholder applies for leave to buy at a valuation the share or shares of the party or parties asking for a sale, the Court shall order a valuation of the

share or shares in such manner as it may think fit and offer to sell the same to such shareholder at the price so ascertained, and may give all necessary and proper directions in that behalf.

7. There is no doubt that under the scheme of the Act as

envisaged under Sections 2 and 3(1) of the Act when a request for

sale is made by a shareholder under Section 2 the other

shareholder become immediately entitled to make an application

under Section 3 for leave to buy the shares of the former and this

right to buy would thus become crystallized on the date when this

right arose.

8. In the judgment of R. Ramamuthi (supra) the Apex Court

had noted as under:

"A question which presents a certain amount of difficulty is at what stage the other shareholder acquires a privilege or a right. under s. 3 when proceedings are pending in a partition suit and a request has been made by a co-owner owning a moiety of share that a sale be held.

One of the essential conditions for the applicability of s. 2 of the Partition Act is that it should appear to the court that a division of the property cannot reasonably or conveniently be made. To attract the applicability of s. 3 all that the law requires is that the other shareholder should apply for leave to buy at a valuation. Once that is done the other matters mentioned in s. 3 (1) must follow and the court is left with no choice or option. In other words when the other shareholder applies for leave to buy at a valuation the share of the party asking for a sale the court is bound to order valuation of his share and offer to sell the same to such shareholder at a price so ascertained."

In the same context it had inter alia further noted as under:

"In the argument of the learned counsel for the appellant emphasis has been laid on the fact that in the presentcase the court did not give any finding that the property was not capable of division by metes and bounds. It is thus pointed out that the essential condition for the application of s. 2 of the Partition Act had not been satisfied and S. 3 cannot be availed of by the respondent unless it had first been found that the property could be put to sale in the light of the provisions of s. 2. This submission has hardly any substance inasmuch as the trial court had prima facie come to the conclusion that a division by' metes and bounds was not possible. That was sufficient so far as the proceedings in the present case were concerned. The language of s. 3 of the Partition Act does not appear to make it obligatory on the court to give a positive finding that the property is incapable of division by metes and bounds. It should only "appear" that it is not so capable of division."

9. Although the report of the local commissioner had prima

facie found that the property is not capable of division by metes

and bounds, yet the objections to this report had been filed by the

plaintiff/petitioner to which reply/objections had been filed by the

defendant. Vide order dated 13.12.2006 the first appellate court

had remanded the matter back to the trial judge to dispose of

these objections filed against the report of the local commissioner;

as noted supra pursuant thereto the trial court has also appointed

a new local commissioner vide order dated 18.9.2007. The matter

has yet to be adjudicated upon; a prima facie finding is yet to be

returned as to whether the property is capable or incapable of

division by metes and bounds. In these circumstances the court

had correctly noted that this application under Section 3(1) of the

Partition Act is not maintainable. This finding in no manner calls

for any interference. This application was pre-mature; it was

rightly dismissed. Needless to state that the petitioner would be

at liberty to seek this remedy if, available to him under Section

3(1) of the said Act at any other appropriate stage. The provisions

of Order 47 are limited and guidelines and parameters contained