Shri Surender Kumar Gupta vs Shri Mahender Kumar Gupta

Indermeet Kaur, J.—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 u/s 3(1) of the Partition Act 1893 had been dismissed.

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.

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.

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 u/s 3 of the Partition Act for grant of a pre-emptive right to buy the share of the Defendant has also been filed.

Contention before this Court is that in view of the judgment of the Apex Court reported in R. Ramamurthi 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 Mrs. Malati Ramchandra Raut and others Vs. Mahadevo Vasudeo Joshi and others, as also another judgment of this Court reported Dr. Kishore Chand Kapoor and Others Vs. Dharam Pal Kapoor and Others,

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

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.

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 u/s 2 the other shareholder become immediately entitled to make an application u/s 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.

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. u/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 Section 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 Section 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 Section 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 present case 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 Section 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 Section 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 Section 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.

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 u/s 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 u/s 3(1) of the said Act at any other appropriate stage. The provisions of Order 47 are limited and guidelines and parameters contained therein have to be adhered to. No ground for review is made out. Dismissed.