Saraswathi Bai vs B.S. Ramachandran

M. Duraiswamy, J.—The above First Appeal arises against the fair and decretal order in I.A. No. 304 of 2011 in O.S. No. 4437 of 2002 on the file of the Additional District and Session Judge, Fast Track Court No. 5, Chennai.

The Defendants 2 to 5 the Appellants, the Plaintiff is the First Respondent and the Respondents 2 & 3 were the Defendants 6 & 7 in the Suit.

The Plaintiff filed the Suit in O.S. No. 4437 of 2002 for Petition, separate possession, for rendering accounts and for permanent injunction.

Heard Mr. P. Valliappan, learned Counsel appearing for the Appellants, Mr. V. Lakshminarayanan, learned Counsel appearing for the First Respondent and Mr. M. Kamalanathan, and learned Counsel appearing for the Respondents 2 & 3.

On the careful consideration of the materials available on record and the submissions made by both the learned Counsels, the following points arise for consideration in this Appeal :

(i) Whether the order of the Trial Court permitting the Plaintiff to purchase the property at Rs. 70,11,000/- is correct without the property being valued by an expert?

(ii) Whether the Plaintiff is entitled to purchase the property?

After contest, the Suit in O.S. No. 4437 of 2002 was decreed and a preliminary decree for Partition and separate possession of the Plaintiff''s three-fourth share and delivery of possession thereof was granted.

Aggrieved over the Judgment and decree of the Trial Court, the Defendants preferred an Appeal in A.S. No. 1112 of 2004 on the file of this Court and this Court by its Judgment dated 7.6.2007 modified the Judgment and decree only for three-fourth share in the ground floor of the Suit property and the Defendant was allotted first and second floor of the Suit property constructed by him. Further, it was observed in the said Judgment that since the Plaintiff is entitled for three fourth shares in the ground floor, it can be worked out by construing it as partible estate by appointment of commissioner by taking Suitable steps therefore. The Plaintiff preferred on Appeal before the Hon''ble Supreme Court in Civil Appeal No. 5744 of 2007, which was dismissed as withdrawn on 22.2.2011.

Thereafter, the Plaintiff filed a final decree Application in I.A. No. 96 of 2011 in O.S. No. 4437 of 2002 on the file of the Additional District Judge, Fast Track Court No. 5 Chennai. The Advocate Commissioner, who was appointed in the final decree Application, filed his report stating that the Suit property is not possible to divide by metes and bounds and the same is indivisible. The Plaintiff is entitled to 22/28th share in the ground floor and 1/7th shares each in the first floor and in the second floor portion of the Suit property. The built up area in the ground floor is 744 sq.ft, of which 22/28th share comes to 585 sq.ft, and 6/28th share comes to 159 sq.ft. Similarly, the first floor being Reinforced Concrete Cement (RCC) roof with balcony in front area is 814 sq.ft, of which 1/7th share comes to 116 sq.ft, and 6/7th share comes to 698 sq.ft. In the second floor, Reinforced Concrete Cement (RCC) roof with balcony in front area comes to 469 sq.ft and Asbestos Concrete Cement (ACC) sheet roof area is 65 sq.ft. The proportionate 1/7th share in the RCC roof with balcony in front area comes to 67 sq.ft, and 6/7th share comes to 402 sq.ft. The proportionate 1/7th share in ACC sheet roof comes to 9 sq.ft, and 6/7th share comes to 56 sq.ft.

Since the Advocate Commissioner found that the Suit property is invisible, the Plaintiff filed an Application in I.A. No. 304 of 2011 to direct the sale of the Suit property and grant leave to him to buy at a valuation the shares of the Respondents and offer to sell the same to him at the price so ascertained by the Trial Court. According to the Plaintiff, it is his dwelling house and is invoking his right of pre-emption under Sections 2 & 3 of the Partition Act, 1983. In the Affidavit filed in support of the Petition, the Plaintiff has also stated that he is prepared to purchase the entire property according to the market price and the value arrived at by the Court and he had expressed strong sentiments over the property, since it was the first property that he had purchased with his proportionate funds, as proved in the case, along with his father in the year 1988.

The Respondents filed their Counter and have stated that they are residing in the Suit property. However, in the preamble portion of the Counter Affidavit, the Third Respondent had stated that she is residing at Kanchipuram. In the Counter Affidavit, the Respondent have also have stated that the prayer sought for in the Petition by the Petitioner cannot be granted unless until a Competent Surveyor is appointed to value the building as well as the land and to file report thereof. They have also stated that when such surveyor is appointed and his report is being filed, they are also ready to go in for purchase of the property for the price as guided by the said report.

On 26.2.2011, the Trial Court passed the following Order in I.A. No. 304 of 2011 :

"Perusal of the Petition and the Affidavit and the Counter. As both parties expressed their willingness to purchase their Suit property. Hence directions issued to both parties to express their price (In A Sealed Cover) for which they offer to purchase the family property. For the consideration of the Petition call on 5.1.2012."

From the Memo filed by the Plaintiff in I.A. No. 304 of 2011, it could be seen that pursuant to the order passed by the Trial Court, they quoted the price of the property in a sealed cover at Rs. 70,11,000/-. However, the Defendants did not submit their price before the Trial Court. That apart no argument was advanced on the side of the Defendants before the Trial Court. Therefore, after hearing the arguments advanced on the side or the Plaintiff, the Trial Court fixed the sale price at Rs. 70,11,000/- and directed the Plaintiff either to deposit the respective shares of the Defendants within the period of three months or to deposit the respective shares directly and on such deposit/payment made, as case may be, the Defendants were directed to execute necessary document thereof in favour of the Plaintiff within a period of one month there from.

In support of the valuation, the Plaintiff relied upon a Memo of calculation submitted before the Trial Court wherein he had calculated the value of the building based on the rates fixed by the Public works Department and also calculated amenities, depreciation and also took into consideration the sale deed dated 26.10.1988 for fixing the value of the land. The Plaintiff fixed the value per square feet at Rs. 8,103.50. It is also pertinent to note that the Respondents 6 & 7 was set ex parte in the said Application by the Trial Court. The Plaintiff residing with his family in the Suit property, whereas, the Defendants are residing in different places and not in the Suit property. Though, they have stated in the Counter that they are residing in the Suit property, there is nothing on record to prove the said contention. Since the Plaintiff has been residing in the Suit property, one can understand the sentimental attachment that he will be having the Suit property.

as already pointed out, the Trial Court, in its order dated 26.12.2011 in I.A. No. 304 of 2011, directed both the Parties to express their price in a sealed cover for which they offer to purchase the family property. In spite of the said order, the Defendants did not give any offer indicating their price. It was only the Plaintiff, who gave the price in a sealed cover. The Defendants did not give any reasons for not submitting their price before the Trial Court in spite of the order dated 26.12.2011. Further the value quoted by the Plaintiff is based on the Memo of calculation filed before the Trial Court. Even for the Memo of calculation, the Defendants did not file any objections before the Trial Court. That apart, in the Counter Affidavit also they have not stated that the value quoted by the Plaintiff is on the lower side.

The learned Counsel appearing on behalf of the Appellants in support of his contentions relied upon the following Judgments:

(i) Rani Aloka Dudhoria and others v. Goutam Dudhoria, 2009 (6) CTC 255, wherein the Hon''ble Supreme Court held as follows :

"67. Sub-section (2) of Section 3 mandates valuation to be made by the Court at which a sale of the share or shares can be directed to be made only when the highest price is offered to be paid by another co-sharer. Sub-section (3) or Section 3 thereof provides that if no shareholder is willing to buy share or shares at the price so ascertained, the Applicant or Applicants shall be liable to play all costs of or incidental to the Application or Applications, which leads to the conclusion that in the absence of predetermining valuation in regard to the half share of the properties, the properties in question could not have been put to auction sale.

It has been contended that the Plaintiffs agreed that valuation of the property was not necessary. The said contention cannot be accepted for more than one reason, firstly because of the order passed by the High Court in passing a preliminary decree, which could be varied or modified only by a subsequent order; secondly because once the provisions of the Partition Act are held to be applicable, keeping in view the legal principles attracting construction of Sections 2 & 3 thereof, no deviation, therefore, in our opinion was permissible.

It is not the contention of the Plaintiffs/Appellants that only a public sale was permissible in law but even in regard to agreed inter se sale amongst the co-sharers, the provisions of the Partition Act were required to followed."

(ii) Dr. Prasanna Venkatachalam v. Akkamma and 2 others, 2009 (5) CTC 577, wherein a Division Bench of this Court held that when it is abundantly clear that though sufficient opportunity was given to the Plaintiff/Appellant, he did not avail the same, and hence it has got to be taken that the Appellant is not to be put forth his offer before the Court. Under the circumstances, This Court has fix the price of the property as Rs. 42,00,00,000/- (Rupees forty two crores only) since it is the highest offer made by the Second Defendant. In the said case, though opportunity was given to the Parties to give their offers in sealed covers, the Defendants 1 & 2 has placed the sealed covers, but the Plaintiff/Appellant did not.

(iii) Malati Ramachandra Raut and others v. Mahadevo Vasudeo Joshi and others, AIR 1991 SC 700. In this case, the Hon''ble Apex Court held that it is the duty of the Court to order the valuation of the shares of the Party asking for a sale of the property under Section 2 of the Partition Act and to offer to sell the shares of such Party to the shareholders applying for leave to buy them in terms of Section 3 of the Partition Act at the price determined upon such valuation. Since a request for sale is made by a shareholder under Section 2, any other shareholder becomes immediately entitled to make an Application under Section 3 for leave to buy the shares of the former. The right to buy having thus arisen and become crystallized, the date with reference to which valuation of the shares in question has to be made is the date on which the right arose.

(iv) Sampathammal v. Veerammal and others, AIR 1974 Mad. 32, where in this Court held that since the Petitioner has filed a Petition under Section 3 of the Petition Act for the purpose of purchasing the property for the value that may be fixed by the commissioner, it is but fair that an opportunity must be given to the Petitioner herein for the purpose of purchasing the property herself.

(v) Somnath Bose v. Manasendra Nath Bose and others, AIR 1983 Cal. 265, wherein a Division Bench of the Calcutta High Court held as follows :

"Where in the Partition Suit on the Application made by a co-sharer under Section 3 for sale of the property amongst the co-sharer the Court passed an order directing the commissioner of Partition to make valuation of the shares of all the parties and to sell the shares to the share holder offering the highest price above the valuation made by the Commissioner, the Applicant co-sharer cannot subsequently turn around and take advantage of technicalities and argue that the order passed by the Court could not be made under Section 3 and ask for sale of the property to him at valuation to be made by the Court under Section 3."

(vi) Ram Gopal v. Bhikam Chand and others, AIR 1964 Raj. 229, wherein the High Court of Rajasthan held that a perusal of Sections 2 & 6 of the Partition Act together makes it quite clear that Section 2 is applicable only if the co-sharer makes a prayer for a public sale. If the co-sharer makes a prayer for sale amongst the shareholders, then his Application is not one under Section 2 of the Act. Consequently, Section 3(1) will not apply to such an Application; Section 6 contemplates a public sale and not a sale amongst the co-sharers.

(vii) Vaman Ganpatrao Trilokekar and others v. Malati Ramachandra Raut, AIR 1988 Bom. 321. In this Judgment, a Division Bench of Bombay High Court held as follows :

"It is therefore, clear that an order of valuation under Section 3 of the Act cannot be made until and unless the Court has determined who the co-sharers in the property are and what the extent of their share is and has passed a preliminary decree accordingly. The High Court must thereafter find and indicate that Partition of the property by metes and bounds is not reasonable and convenient and that the sale thereof and the distribution of the sale proceeds would be more beneficial. Upon this, if a shareholder requests a sale as required by the provisions of Section 2 the Court may grant the request. If, then, another shareholder applies for leave to buy as required by Section 3 the Court must grant the Application. Conceivably, all this can be done on the same day; but one thing is clear; valuation of a share Section 3 cannot be ordered to be made as of any day prior to the date of the preliminary decree."

Countering the submissions made by the learned Counsel for the Appellants, the learned Counsel appearing on behalf of the Respondents submitted that the Trial Court had rightly fixed the value of the property based on the valuation given by the Plaintiff and the learned Counsel submitted that in spite of giving opportunity to the Appellants/Defendants 2 to 5, they did not give their offer for the purchase of the property. Therefore, according to the Respondents, the fair and the decretal order of the Trial Court are just and proper. In support of the above contention, the learned Counsel for the First Respondent relied upon the following Judgments :

(i) Badri Narain Prasad Choudhary and others v. Nil Ratan Sarkar, AIR 1978 SC 845, wherein the Hon''ble Supreme Court held that where the Defendant was the smaller co-sharer holding 3/16 share and he was using the property as a shop-cum-residence, equity requires that he should be given a preferential right to retain the whole of the Suit property on payment of compensation being the just equivalent and the Hon''ble Apex Court held that valuation fixed by the High Court for the Plaintiff''s 13/16 share was not a fair compensation.

(ii) R. Ramamurthi Aiyar (dead) by L.Rs. v. Raja V. Rajeswararao, AIR 1973 SC 643. In this case the Hon''ble Supreme Court held that Section 3(1) of the Partition Act does not contemplate a formal Application being filed in every case. The words employed therein simply mean that the other shareholder has to inform the Court or notify that he is prepared to buy at a valuation the share of the Party asking for sale. The Defendants had in his Written Statement said that in case the Court held that the property in question was incapable of division into two shares, he was ready and willing to buy the Plaintiff''s share in the Suit at a valuation to be made in such a manner as the Court might think proper. This was sufficient compliance with the requirement of Section 3 of the Partition Act.

An already stated, the Trial Court on 26.12.2011 directed both the Parties to express their price in a sealed cover for which they offer to purchase the family property. The Trial Court thereafter posted the matter to 5.1.2012. Pursuant to the directions of the Trial Court, the Plaintiff quoted the price of the property in sealed cover at Rs. 70,11,000/-. The Defendants 2 to 5 did not quote any price for the purchase of the property. That apart, along with the price submitted by the Plaintiff, he also filed Memo of calculation, which was calculated as per the public works Department rates and collection of the Stamp Duty by the Registration Department with effect from 1.8.2011. The Plaintiff valued per square feet at Rs. 8,103.50p. If the Defendants were really aggrieved by the value offered by the Plaintiff, they should have filed objections to the value and also to the Memo of calculation filed along with the offer given by the Plaintiff. The Defendants neither submitted their offer in a sealed cover pursuant to the directions of the Trial Court nor did they object to the valuation given by the Plaintiff.

There is no dispute with regards to the principles laid down in the above referred Judgments relied upon by the learned Counsel for the Appellants and the Respondents. In the Judgment reported in Dr. Prasanna Venkatachalam v. Akkamma and 2 others, 2009 (5) CTC 577, wherein a Division Bench of this Court held that so sufficient opportunity was given to the Appellant therein, if he did not avail the same, it has got to be taken that the Appellant is not to put forth his offer before the Court. Under the circumstances, the Court has to fix the price of the property offered by the Second Defendant, which was higher than the price offered by the First Defendant. In the present case also, in spite of the fact that the Trial Court gave opportunity to the Defendant to offer their price, the offer made the Plaintiff is based on materials. If the price offered by the Plaintiff is on the lower side, the Defendants should have objected to it, but they did not object the price offered by the Plaintiff.

It is also pertinent to note that under Section 3 of the Partition Act, if, in any case 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 a manner as it may think fit and offer to sell the same to such share holder at the price so ascertained, and may give all necessary and proper directions in that behalf.

Therefore, it is clear that the Court shall fix the value of the property in a case where the Court directs the sale of the property. In the case on the hand, since the Advocate Commissioner filed his report that the property is indivisible, Plaintiff filed an Application in I.A. No. 304 of 2011 to grant leave to him to purchase the property. Accordingly, the Plaintiff and Defendants were directed to submit their offers in a sealed cover on 26.12.2011, pursuant to which the Plaintiff submitted his offer and the Defendants did not submit their offer. That apart, only the Plaintiff filed the Petition for exercising his opinion for pre-emption rights.

Further, it is also to be noted that except the Plaintiff, the other co-sharers are not presently residing in the Suit property. The Trial Court has rightly considered all these aspects and granted pre-emption rights to the Plaintiff. The Trial Court has rightly fixed the sale price at Rs. 70,11,000/- and directed the Plaintiff either to deposit the 1/7th share in the first and second floor of the Suit property each to the Defendants 2 to 7 and 1/28th share in the ground floor of the Suit property to each of them within a period of three months and on such deposit, directed the Defendants 2 to 7 to execute necessary documents in favour of the Plaintiff within one month there from. In default, the Trial Court gave liberty to the Plaintiff for the execution of necessary documents through Court. Further, the Trial Court also directed the Defendants 2 to 7 to hand over the portion of the Suit property, if any, under their custody to the Plaintiff at the time of executing necessary documents, so that, the Plaintiff shall have the right of absolute enjoyment of the entire Suit property. The facts and circumstances of the Judgment relied upon by the learned Counsel for the Appellants differ from the case on hand; therefore, they are not applicable to the present case.

In these circumstances, I find no ground to interfere with the fair and decretal order of the Trial Court. The Appeal is liable to be dismissed and accordingly, the same is dismissed. However, there shall be no order as to costs. Consequently, the connected Miscellaneous Petition is closed.