Sh. Jagmohan Nath Kapoor vs Sh. Manmohan Nath Kapoor
2012 Latest Caselaw 4719 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                               Judgment delivered on: 09.08.2012

+      IA No. 4172/2012 in CS(OS) 1254/2009


       SH. JAGMOHAN NATH KAPOOR                 ..... Plaintiff
                    Through: Mr.Anupam Srivastava with
                    Mr.Manish
                            Srivastava, Advs.

                   versus


       SH. MANMOHAN NATH KAPOOR                  ..... Defendant
                   Through: Mr.Vijay Gupta with Ms.Geeta, Advs.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR:


KAILASH GAMBHIR, J.

1. By this application filed under Section 151 CPC the defendant

has prayed to consider various other alternatives for the division of

the subject property in the best interest of both the parties.

2. The first suggestion given by the defendant in the present

application is to buy out the plaintiff's share in the suit property at Rs.

2 crores. As per the defendant, the said offer of Rs. 2 crores to buy

out the share of the plaintiff has been given considering the fact that

the plaintiff himself has valued his share in the property at Rs. 25

lakhs in the valuation para of the plaint and Rs. 60 lakhs in his

application dated 13th February, 2012. The defendant has further

taken a stand that even as per the circle rate declared by the

Government of NCT of Delhi, as applicable w.e.f. 16.11.2011, the

value of the share of the plaintiff comes out to be Rs. 91,72,800/-. The

defendant has also prayed that if this suggestion is accepted then he

be given reasonable time frame to enable him to pay the said amount

of Rs. 2 crores to the plaintiff.

3. The second suggestion given by the defendant in the present

application is that the suit property be first converted from lease hold

to free hold after a joint initiative is taken by both the parties and

thereafter the said property be demolished so as to convert it into an

open plot. Thereafter, the open plot of 200 sq.yds be physically

divided into two plots of 100 sq.yds each by means of vertical division

and the portion which is contiguous to the defendant's property No. F-

12, Lajpat Nagar-III, New Delhi be taken by the defendant towards his

50% share and the remaining portion by the plaintiff.

4. The third suggestion given by the defendant in the present

application is that after getting the property converted from lease

hold to free hold, both the parties can jointly proceed to develop the

property by constructing four dwelling units and thereafter each party

can take two dwelling units as per the arrangement to be worked out

between them.

5. The said application has been strongly opposed by the plaintiff.

The stand taken by the plaintiff in his reply to this application is that

during the mediation proceedings all these options were suggested

and duly considered by both the parties but nothing turned out of

such suggestions and ultimately mediation proceedings resulted into

abrupt failure. The plaintiff has also taken a stand that these

suggestions have been given by the defendant again with oblique

motives to further prolong the present proceedings.

6. Contesting the first suggestion given by the defendant to buy

out the share of the plaintiff, the plaintiff has taken a stand that the

plaintiff is prepared to buy out the share of the defendant at the value

suggested by the Local Commissioner and to show his bona fides the

plaintiff also brought a demand draft for a sum of Rs. 50 lakhs and

undertook to make the balance payment within a period of six months.

In answer to second suggestion for vertical physical division of the

property the plaintiff took a stand that such an offer is not acceptable

to him as the same is practically and legally not possible. The plaintiff

has also taken a stand that sub-divided plot of 100 sq. yards would not

fetch the same market price as the undivided suit property would

otherwise attract. The plaintiff has also taken a stand that if this

proposal is accepted then the defendant would stand to benefit as he

would be getting 100 sq.yds with his adjacent property of 200 sq.

yards. The plaintiff has also taken a stand that as per the notice issued

by Ministry of Urban Affairs, sub-division of plots is not permissible.

Contesting the third suggestion of jointly raising a construction

project, the stand of the plaintiff is that both the parties are quite

aged, being 82 and 84 years of age, respectively, and at this advanced

stage of their life it cannot be expected of them to raise a construction

project . The plaintiff has also taken a stand that the parties have

been seriously litigating against each other since 2009 and there is no

harmony between them to raise such a joint construction project.

7. I have heard the learned counsel for both the parties and given

my due consideration to the arguments advanced by them in support

of their respective pleas.

8. Vide orders dated 21st January, 2010, a preliminary decree of

partition with respect to the subject property was passed by this

Court based on the admitted stand of both the parties having one-half

share each in the suit property. For suggesting partition of said

property by metes and bounds, this Court appointed Mr. Jayant K.

Mehta as a Local Commissioner. Vide his report dated 26th April, 2010

the Local Commissioner after taking into consideration the

suggestions given by the Architect Mr. Siddharth Chaturvedi gave his

opinion that keeping in view the existing structure of the property

design and the current building norms it may not be possible to

exactly divide the property by metes and bounds. The Local

Commissioner also gave various suggestions to partition the said

property between the plaintiff and the defendant. Vide separate order

passed by this Court objections filed by the plaintiff against the report

of the Local Commissioner dated 26.4.2010 had been dismissed. This

Court while dealing with IA No. 902/2011 had passed a detailed order

dated 25th April, 2011 taking into consideration all the suggestions

given by the Local Commissioner and ultimately reached to the

conclusion that the said property is not capable of partition by metes

and bounds between the parties in the exact ratio of 50% and,

therefore, in such circumstances the most appropriate course of

action would be to direct the sale of suit property. Vide IA No.

902/2011 moved by the plaintiff under Sections 2 and 3 of the

Partition Act, the plaintiff gave a proposal to purchase the share of the

defendant and considering the fact that there being no request from

any of the parties for the sale of the suit property amongst the co-

sharers, the request of the plaintiff for purchasing the share of the

defendant could not be entertained, therefore, this Court treated the

said application moved by the plaintiff under Section 2 of the

Partition Act proposing sale of the said property and on the request

made by the counsel for the defendant the reply filed by the defendant

to the said application as an application under Section 3 of the

Partition Act for the purchase of the share of the plaintiff in the suit

property. In order to decide the said applications of the plaintiff and

the defendant, the Court directed the Local Commissioner to suggest

the current valuation of 50% share which the plaintiff has in the suit

property. Court also directed the Local Commissioner to take the

assistance of an architect for the purpose of giving his report in

compliance with the said direction. The Court also directed the Local

Commissioner to keep in mind the offer given by the plaintiff to buy

out the share of the defendant at Rs. 2 crores. The Local

Commissioner, Mr. Jayant K. Mehta, submitted his report vide report

dated 26th July, 2011. Objections to the said Local Commissioner

report were filed by the defendant vide IA No. 4172/2012 and the

same have been dismissed by this Court by a separate order.

9. It is pertinent to note here that vide order dated 26th October,

2009 on the joint request of both the parties the matter was sent to

Mediation and Conciliation Centre for possible settlement of disputes

between the parties. The mediation efforts did not fructify as is

evident from the report dated 24.11.2009 submitted by the Mediation

and Conciliation Centre. This matter was sent again by this Court to

the Mediation and Conciliation Centre to bring out a settlement

between the parties. The Court also directed that senior Mediator be

appointed by the Mediation Centre to mediate between the parties,

but second time also the mediation efforts resulted in failure. With the

two interventions by the Mediation and Conciliation Centre of this

Court, it is hard to believe that the suggestions being advanced by the

defendant through the present application would not have been

discussed between the parties before the Mediator. The detailed order

passed by this Court vide order dated 25.4.2011 further amplifies that

the stage of entertaining the said suggestions has already gone, once

the Court had proceeded to consider the application moved by the

defendant under Section 3 of the Partition Act and the application

moved by the plaintiff under Section 2 of Partition Act. The plaintiff

then had offered an amount of Rs. 2 crores to buy out the share of the

defendant in the subject property and after the valuation of the

property given by the valuer at Rs. 8,15,50,000 the plaintiff has raised

his offer from Rs. 2 crores to Rs. 4 crores for buying out the 50%

share of the defendant in the said property. On the other hand, the

defendant has challenged the valuation given by the valuer at Rs.

8,15,50,000/- as highly exaggerated and fanciful. Simultaneously, the

defendant has also made an offer to buy out the plaintiff's share in the

suit property at Rs. 2 crores with a view to buy peace and with

intendment to retain the said property which is contiguous to his

family property bearing No. F-12, Lajpat Nagar-III, New Delhi -

110024. It would be thus seen that the plaintiff has given an offer at

Rs. 4 crores to buy out the 50% share of the defendant while the

defendant in his application under Section 151 CPC has extended the

offer to buy out 50% share of the plaintiff at Rs. 2 crores. As per the

report submitted by the valuer, he has valued the entire suit property

as a single unit at Rs. 8,15,50,000/- and valued 1/2 interest in the suit

property at Rs. 4,07,75,000/-. As has been stated above, the plaintiff

has agreed to accept the valuation of the property as has been

assessed by the valuer but the defendant has raised a serious

exception to the said valuation. There has thus arisen a wide gap

between the price offered by the plaintiff of 50% share of the

defendant and the price offered by the defendant of the 50% share of

the plaintiff and no possibility can be seen to bridge the said gap. The

plaintiff has already prayed to direct the sale of the property by public

auction and to the Court also no other solution is seen more beneficial

and equitable to serve the best interest of the parties who are already

at the advance stage of 82 and 84 years respectively.

The above view finds support from the case R. Ramamurthi Iyer v.

Raja v. Rajeshwara Rao (1972) 2 SCC 721, in which the Supreme

Court observed as under

"...The scheme of section 2 and 3 is that if the nature of

the property is such or the number of shareholders is so many

or if there is any other circumstance and a division of the

property cannot reasonably or conveniently be made the court

can in its discretion, on the request of any of any of the

shareholders interested individually or collectively to the extent

of one moiety or upwards, direct a sale of the property and

distribute the proceeds amongst the shareholders..."

The same view has been reiterated in Rani Aloka Dudhoria And

Others V. Goutam Dudhoria And Others, (2009) 13 SCC 569 in

which the Supreme Court after referring to the above mentioned case

and also relying on the cases Sathi Lakshmana KC v. P.C.

Mohandas, (2008) 4 KLT 401 and Rukmani v. Uday Kumar, ILR

2008 Kant 13, has held that

"For passing of order in terms of section 2 of The Partition

Act, 1893 in relation to sale of properties involved in partition

suit instead of division thereof, what is necessary is that there

should be a request in that regard from a shareholder; a formal

prayer in that regard may not be necessary; a positive finding

that the property is incapable of division by metes and bounds

and that the property cannot be reasonably and conveniently be

partitioned, would not be necessary."

10. In the light of the aforesaid discussion, the court dismisses the

present application filed by the defendant and directs the sale of the

subject property by public auction.

11. This Court accordingly appoint Shri Anurag Aggarwal, Advocate

(M) 9810059350 as Local Commissioner to conduct the auction of the

property so as to get highest bid for the property. The Local

Commissioner shall invite the bid by public notice in national dailies

having a wide circulation. Liberty is given to both the parties or their

authorized representatives/nominees to participate in the bid. The fee

of the Local Commissioner is tentatively fixed at Rs. 1,00,000/- apart

from other expenses. Both the parties shall bear in equal proportion

the fee of the Local Commissioner and other expenses. The parties

shall also deposit a tentative amount of Rs. 1,00,000/- with the Local

Commissioner towards the miscellaneous expenses. The Local

Commissioner shall file his report within a period of three weeks from

the date of this order.

List this matter on 19.11.2012.

KAILASH GAMBHIR, J th 09 August, 2012 rkr