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2017 Supreme(Del) 1469
IN THE HIGH COURT OF DELHI AT NEW DELHI
SANJIV KHANNA, PRATHIBA M. SINGH, JJ.
RENU BHANDARI & ANR. - Appellant
Versus
CHANDER SHEKHAR & ORS. - Respondent
FAO(OS) No. 355/2016
Decided On : 16-05-2017
For the Appellant :Mr. Akhil Sibal, Sr. Advocate alongwith Mr. Gaurav Bhardwaj, Advocate.
For the Respondent:Mr. Jitender Chaudhary, Advocate.
In a property dispute involving partition, a just and equitable division should consider the commercial market value of the property and the lack of consensus between the parties.
Headnote:
Property Dispute - Partition - Section 3 of the Partition Act, 1893 - Preliminary decree of partition - Modes of partition suggested by Local Commissioner - Front portion of property with higher market value - Public auction - Lack of consensus - Court's direction
Fact of the Case:
The dispute involved a property owned by two individuals, with one party seeking partition against the legal heirs of the other owner and a subsequent disagreement on the mode of partition.
Finding of the Court:
The court found that the appellants' claim to the front portion of the property, based on their possession and a Memorandum of Understanding, was not equitable and would deprive the ninth respondent of an equal share in commercial market value. The court also noted the lack of consensus between the parties and the rejection of alternative modes of partition.
Issues: Disagreement on the mode of partition, claim to the front portion of the property, applicability of Section 3 of the Partition Act, 1893, and lack of consensus between the parties.
Ratio Decidendi: The court held that a just and equitable division should be fair to both sides, and in the absence of consensus, the direction given by the single Judge for public auction was upheld.
Final Decision: The appeal was dismissed with no order as to costs.
SANJIV KHANNA, J.
The dispute inter se parties relates to property No. 12B, Rajendra Park, New Delhi admeasuring 1250 square yards.
2. This property was owned by late Narain Das and Chetan Das, each being 50% owner. They had entered into a Memorandum of Understanding dated 21st March, 1988.
3. Late Chetan Das sold his 50% undivided share in the property to the appellants, namely, Renu Bhandari and Suman Bhandari vide registered deed executed on 3rd day of April, 1998 and registered on 7th April, 1998.
4. The legal heirs of Narain Das sold their 25% share in the property in favour of Ashok Garg, respondent No. 9 vide sale deed dated 26th November, 2010.
5. The appellants, i.e., Renu Bhandari and Suman Bhandari instituted CS(OS) No. 273/2011 seeking partition of the property against the legal heirs of Narain Das and the ninth respondent.
6. By order dated 4th September, 2013, a preliminary decree of partition was passed in CS(OS) No. 273/2011. Paragraphs 10 to 13 of the said order read as under:-
“10. Accordingly, a preliminary decree is passed declaring the undivided half share of both the Plaintiffs (625 sq. yards), the undivided 1/4th share of Defendant Nos. 6 and 7 (312.5 sq. yards) and the undivided 1/4th share of Defendant No.9 (312.5 sq. yards) in the suit property at 12-B, Rajindra Park, New Delhi 110 060.
11. As regards the transaction between Defendants 6, 7 and Defendant No. 9, learned counsel for the Defendant Nos. 6 and 7 states that they should be permitted to execute a sale deed for the remaining undivided 1/4th share of the suit property in favour of Defendant No. 9, which is equivalent to 312.5 sq. yards. Learned counsel for the Plaintiffs states that the Plaintiffs would like to see the draft sale deed that is proposed to be executed before agreeing to the above submission of learned counsel for Defendant Nos. 6 and 7.
12. It is directed that learned counsel for Defendant Nos. 6 and 7 will serve upon learned counsel for the Plaintiffs a copy of the draft sale deed proposed to be executed in favour of Defendant No.9 within one week from today. Within one week thereafter learned counsel for the Plaintiffs will inform learned counsel for Defendant Nos. 6 and 7 of the changes if any required to be made to the draft sale deed. If the Plaintiffs are agreeable to the draft sale deed the Defendant Nos. 6 and 7 are permitted to proceed to execute the sale deed as per the agreed draft in favour of Defendant No. 9 in respect of their 1/4th share of the suit property (312.5 sq. yards). In that event, a copy of the sale deed so executed shall be placed on record by the Defendant Nos. 6 and 7 before the next date of hearing.
13. The Plaintiffs, and Defendants 6, 7 and 9 shall before the next date file their respective proposals as regards the division of the suit property by metes and bounds.”
7. After preliminary decree of partition, the defendant Nos. 6 and 7 referred to in the afore-quoted portion, sold their remaining 1/4th share in the suit property in terms of permission granted by the Court in favour of the ninth respondent. The effect thereof was that the ninth respondent became 50% owner of the suit property and the appellants herein became 50% owner of the suit property.
8. Attempts to resolve the matter and amicably partition the property between appellants and the ninth respondent did not fructify and materialize due to differences and lack of consensus.
9. By order dated 18th July, 2014, a Local Commissioner was appointed by the Court to suggest modes of partition. This order records that the appellants were 50% owners of the suit property and the ninth respondent was 50% owner of the suit property, that has to be divided equally between them. Ms. Amita Sehgal, Advocate was appointed as the Local Commissioner to suggest modes of partition. She was entitled to take services of a draftsman and an architect.
10. It took nearly a year for the Local Commissioner to submit her report dated 4th March, 2015. She had interac
