Delhi High Court

M/S Brijwasi Infratech Pvt Ltd vs Vikas Jain on 31 October, 2018

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                  Date of decision: 31st October, 2018
+                     CS(OS) 3171/2014
       M/S BRIJWASI INFRATECH PVT LTD                       ..... Plaintiff
                      Through: Ms. Shalini Kapoor, Mr. Dikshant
                                Khanna & Ms. Bindita Chaturvedi,
                                Advocates (M-9810160155).
                      versus
       VIKAS JAIN                                     ..... Defendant
                      Through: Mr. Chandra Shekhar & Mr. Prashant
                                Shekhar,         Advocates            (M-
                                9999709498).
       CORAM:
       JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)

I.A. 11482/2016

1. Learned counsel for the Defendant wishes to withdraw the present application. The same is dismissed as withdrawn.

I.A. 11528/2018

2. The present application has been filed by the Defendant under Section 4 of the Partition Act seeking a right of pre-emption. The prayer sought in the application is as under:

"a. It is prayed that the hon'ble court to allow me the opportunity to purchase the undivided share as per the law.

b. Any other relief as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case."

3. The brief background of the present suit is that the property bearing No.3, Block A-1, Krishna Nagar, Delhi ad-measuring 593.20 sq. yds. was

belonging to Sh. Tej Kumar Jain - the father of the Defendant. One Mr. Chunni Lal Sethi was the absolute owner of the above suit property vide sale deed dated 19th November, 1953. The said property was sold by Sh. Chunni Lal Sethi to one Sh. Yagdev Sharma and Sh. Bhim Dev in 1958. Sh. Bhim Dev, who was the owner of half of the undivided share in the property sold his share to Sh. Tej Kumar Jain and Sh. Suresh Chand Jain vide sale deed executed on 23rd October, 1972. Similarly, the legal heirs of Sh. Yagdev Sharma sold their undivided share to Sh. Jagjot Singh Jain and Sh. Ramesh Chand Jain vide sale deeds registered on 18th November, 1971. The said four purchasers were real brothers.

4. The admitted position as on date is that the Plaintiff has purchased 3/4th share of the property from Sh. Manoj Jain, Sh. Arun Jain and Smt. Kiran Mala Jain who trace back their title to Sh. Jagjot Singh Jain and Sh. Ramesh Chand Jain. 1/4th of the property remained with Sh. Tej Kumar Jain. Sh. Tej Kumar Jain sold his share of the property to his wife - Smt. Shakuntala Jain vide sale deed dated 2nd January, 1991. Smt. Shakuntala Jain passed away intestate on 30th October, 2000. She left behind four sons and one daughter. One of them is Sh. Vikas Jain, who is the Defendant in the present suit. It is also agreed between the parties that Defendant owns 1/4th share of 1/4th share of Sh. Tej Kumar Singh i.e.1/16th of the suit property. The remaining shares have already been acquired by the Plaintiff.

5. Under these circumstances, a preliminary decree was passed, recognizing the share of the Defendant on 18th April, 2017. The said order was thereafter modified on 28th February, 2018 only in respect of some typographical errors. Thus, the Defendant is the owner of 1/4th of the 1/4th share i.e. 1/16th in the suit property.

6. The present application is filed by the Defendant under Section 4 of the Partition Act, 1893 seeks a right of pre-emption in the dwelling house. Section 4 of the Act reads as under:

"4. Partition suit by transferee of share in dwelling- house.-- (1) Where a share of a dwelling-house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition, the court shall, if any member of the family being a shareholder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder, and may give all necessary and proper directions in that behalf.

(2) If in any case described in sub-section (1) two or more members of the family being such shareholders severally undertake to buy such share, the court shall follow the procedure prescribed by sub-section (2) of the last foregoing section."

7. It is submitted by Mr. Chandra Shekhar, Counsel appearing on behalf of the Defendant that the Defendant being a member of the original family, which owned the property is entitled to seek his right of pre-emption as per the said provision. He relies upon the judgment passed by a learned Single Judge of this Court in Brahm Dev Narang v. Satyajeet Narang 1999(82) DLT 979 to submit that firstly, the present premises is a dwelling house and secondly, that the valuation ought to be ascertained as per the date of the filing of the suit for partition.

8. On the other hand, Ms. Kapoor, counsel appearing for the Plaintiff submits that the present property is not a dwelling house as the same has been tenanted. She further submits that the relevant date for ascertaining the

valuation would be the date when the application under Section 4 is filed, and not before that. She relies upon the judgment of the Supreme Court passed in Ghantesher Ghosh v. Madan Mohan Ghosh & Ors. 1996 (11) SCC 446 and a judgment of a learned Single Judge of this Court in Sunil Gupta v. Nargis Khanna [2011 (185) DLT 760]. She also relies upon a judgment of a learned Single Judge of the Calcutta High Court in Maya Rani Halder v. Mrityunjoy Kayal and Ors. C.O. 686 of 2015 (Decided on 6th May, 2015) and a judgment of a Division Bench of the Calcutta High Court in Gopal Chandra Mitra and Ors. v. Kalipada Das and Ors., F.M.A No. 820 of 1986 (Decided on 23rd December, 1986).

9. The Court has heard the submissions of the parties on the question of whether the house is a dwelling house. Counsel for the Defendant submits that the house continues to be a dwelling house, inasmuch as only four shops of the property are tenanted, and the same are clearly demarcated and do not interfere with the residential part of the property. The sale deeds have also separately valued the shops as a commercial property and the rest as residential property. However, a perusal of the order dated 8th April, 2016 passed in CS No.2220/2016, which is relied upon by the Plaintiff in a suit filed by the Defendant challenging the sale deed executed in favour of the Plaintiff shows that a prima facie view was taken by the learned ADJ that the property has lost the status of a joint family property or of a single dwelling unit. In order dated 12th July, 2016 in CM(M) 649/2016, this Court has clarified that the said order is prima facie in nature.

10. Be that as it may, the question as to in what circumstances a property is said to be a dwelling house is no longer res integra and has been settled by the Supreme Court in the case of Narashimaha Murthy vs. Susheelabai

(Smt) and Ors. 1996 (3) SCC 644.

11. In the said judgment, the Supreme Court held that once a stranger or a third party is inducted into a property as a tenant or a licensee, the property loses the status of dwelling house. This judgment of the Supreme Court has also been referred to in Sunil Gupta (supra), where a Learned Single Judge of this Court has observed as under:

"8. The emphasized portions of the judgment, and which underlining has been provided by me, show that the Supreme Court has inter alia, held as under:-

i) A dwelling-house is a residential house of a family which is exclusively occupied by and lived in by members of a family.

ii) Except the members of the family, no one else has resided in the dwelling-house, i.e. a stranger has not come into possession of whole or part of the dwelling- house.

iii) Once a stranger comes into possession of a dwelling-house, then in such circumstances, the dwelling-house loses the character of a family dwelling-house considering the object that the sanctity of a family dwelling-house was required to be preserved till a stranger did not come into possession of the same.

iv) the provisions of Section 23 of the Hindu Succession Act, 1956 and provisions of agnate and cognate acts being Section 4 of the Partition Act, 1893 and Section 44 of the Transfer of Property Act, 1882 are part and parcel of the same scheme and the intention of the legislature and therefore, the meaning which has to be ascribed to the expression "dwelling- house" in all the three provisions of the three Acts has to be similar.

9. To the aforesaid, I must add that, though the basic foundation of the provisions of Section 44 of the Transfer of Property Act, 1882, Section 4 of the

Partition Act, 1893 and Section 23 of the Hindu Succession Act, 1956 still continues to protect a dwelling-house of an undivided family, however, one cannot be oblivious to the fact that the society has moved on. Today in metropolitan cities and megapolises, such as the capital of this country, traditions and conservative attitude of the ladies not coming into contact with strangers is more or less a thing of the past.

A family dwelling house is mostly non-existent because people live in flats in high rises or in small buildings having three or four or about these many number of flats. Privacy of course is zealously guarded, however, when properties are built on a plot of land which are in the form of flats and which can be occupied by different persons/families/entities, the traditional concept of an undivided family house has almost vanished. It is in accordance with the contemporary situations and ground realities which exist today that the expression "dwelling-house" as found in Section 44 must be interpreted, of course, keeping in mind the peculiar facts and circumstances as would be found in the facts of each case. A very important aspect to be borne in mind while interpreting the expression 'dwelling house' is that it is one whole house used as a dwelling as distinguished from part of the house used as a dwelling house and thus there does not live therein any person other than the family member. Once in part of the dwelling house there is a stranger then it results in the fact that the whole dwelling house is not with the family and then in such situation it cannot be said that an additional stranger cannot come in. In the facts of the present case admittedly it is the case that the whole property N-47 is the dwelling house, but, in the first floor portion of which there is already a tenant and thus there is already a stranger in the dwelling house. Further it must always be borne in mind that the interpretation of Section 44 of Transfer

of Property Act,1882 must take into account the aspect that it is not as if the dwelling house is permanently impartible. The stranger who purchases the share of the co-owner can always get his share separated and thereafter possess and enjoy his share. Thus the disability to take possession is only temporary till partition and therefore if there is already living a stranger in the house factually there is separation of a share of the dwelling house in which the tenant/stranger lives, though in law a partition by metes and bounds between co-owners has to take place. Therefore there has to be a balanced interpretation of Section 44 of Transfer of Property Act,1882 keeping in view the fact that the inability to take possession by a stranger-purchaser is only temporary till the interest purchased is separated and bound to be separated by partition.

11. Learned counsel for the respondent argued that merely because the tenant had been inducted in the first floor of the property would not mean that the property ceased to be a dwelling-house. Learned counsel for the respondent/plaintiff in support of his arguments placed reliance upon a decision of learned Single Judge of this Court in the case of Shri Brahm Dev Narang vs. Mr. Satyajeet Narang & Anr. 82(1999) DLT 979. Of course, this judgment does help the respondent/plaintiff inasmuch as it lays down that a property does not cease to be a dwelling-house for the purpose of Section 44 of the Transfer of Property Act,1882 merely because the property had been tenanted, however, I note that the said judgment does not deal with the binding precedent of the Supreme Court in the case of Narashimaha Murthy (supra), and therefore in my opinion, the decision in the case of Shri Brahm Dev Narang (supra) does not lay down the correct law. I am bound to follow the decision in the case of Narashimaha Murthy (supra) of the Supreme Court in preference to the decision of a Single Judge of

this Court though the same may have been rendered later in the year 1999 and the decision of the Supreme Court is earlier being of the year 1996. I also in view of the binding precedent of the Supreme Court in the case of Narashimaha Murthy (supra) need not refer to certain other judgments of other High Courts which were sought to be relied upon by learned counsel for the respondent/plaintiff."

12. Irrespective of the fact as to whether the shops exist separately from the suit property or not, the dwelling house and the character of dwelling house in effect means that members of the family ought to be residing in the same. A perusal of the respective shares of the parties itself proves that majority of the Defendant's family does not live in the suit property any longer. The same has been sold to the Plaintiff. A part of the property also having been tenanted, it loses its character of a dwelling house.

13. Insofar as the date when the valuation ought to be taken is concerned, Learned counsel for the Defendant relies upon Brahm Dev Narang v. Satyajeet Narang (supra) passed by a learned Single Judge of this Court. In the said judgment, it was held that the date of institution of the suit would be the relevant date for determining the market value. However, the judgment of the Supreme Court in Ghantesher Ghosh (supra) has also been followed by a Division Bench and a Single Judge of the Calcutta High Court, which all hold that the date of the filing of the application under Section 4 is the relevant date.

14. Considering that a Learned Single Judge of this Court has recently opined that the judgment in Brahm Dev Narang (supra) does not lay down the correct law insofar as the dwelling house is concerned, the Learned Single Judge in Brahm Dev Narang having also relied upon a view of the

Orissa High Court, there is a clear diversity in the view taken by various Courts. The Supreme Court, in Ghantesher Ghosh, (supra), however has considered that the filing of Section 4 application could be one of the relevant dates that can be considered for determining the market value of the property.

14. Either way, this Court is of the opinion that taking a date which is four years prior to the present time, when the property is to be sold, would not be beneficial for either side inasmuch as property prices in the last four years have changed drastically in Delhi. Each party is entitled his or her fair share of the market value as on date. In view of this, it is declared that the property shall be valued as on the date when the family members seeks the right of pre-emption i.e., date of application which is 12th July, 2018. An earlier date when the family member has not even exercised the right of preemption ought not to be considered, as the same would be disadvantageous to one party.

16. It is held that the Defendant would be entitled to either pay to the Plaintiff the value of the Plaintiff's share or be paid the value of 1/16th of the suit property. In order to determine the market value of the property as on 12th July, 2018, Mr. Kameshwar Prasad Singh (M:9953391925) is appointed as an Independent Valuer, who will take into consideration the circle rate and the prevalent market rates as also lease deeds that may have been executed in the neighbouring areas during this period and submit a valuation to this Court. The fee of the Valuer shall be Rs.25,000/- to be equally shared by both parties.

17. Accordingly, the suit is decreed in the following terms:

(i) The Plaintiff is held entitled to a sum equivalent of 3/ 4th + 3/ 4th of 1/ 4th share i.e. 15/16th share of the suit property and

the Defendant is held to be entitled for 1/16th share of the suit property.