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IN THE HIGH COURT OF DELHI AT NEW DELHI
Manmohan, Manmeet Pritam Singh Arora, JJ.
Mukesh Saini - Appellant
Versus
Madan Lal Saini (Since Deceased) Through His Lrs. And Others - Respondent
FAO(OS) 122 of 2023 & CM Appls. 59542-43 of 2023
Decided On : 18-01-2024
Partition Act - Property Valuation - [Section 3 of the Partition Act] - The court dismissed the appellant's application seeking permission to purchase shares of the suit property at the 2014 price, as the right to purchase shares of co-sharers must be exercised at the current market value in accordance with Section 3 of the Partition Act. The court held that the offer made by the appellant in 2023 to purchase the property at the 2014 price was contrary to law and lacked bona fide. The right of the co-sharers to sell the property to prospective purchasers had attained finality, and the appellant's actions to circumvent the implementation of the court's orders were noted.
Fact of the Case:
The appeal sought to challenge the dismissal of the appellant's application to purchase shares of the suit property at the 2014 price, which was opposed by the co-sharers. The suit involved partition of the property and permanent injunction.
Finding of the Court:
The court found that the appellant's offer to purchase shares at the 2014 price was contrary to law and lacked bona fide. The right of the co-sharers to sell the property to prospective purchasers had attained finality, and the appellant's actions to circumvent the court's orders were noted.
Issues: The main issue was whether the appellant could exercise the right to purchase shares of the co-sharers at the 2014 price or whether it should be at the current market value in accordance with Section 3 of the Partition Act.
Ratio Decidendi: The court held that the right to purchase shares of co-sharers must be exercised at the current market value in accordance with Section 3 of the Partition Act. The offer made by the appellant in 2023 to purchase the property at the 2014 price was contrary to law and lacked bona fide.
Final Decision: The appeal was dismissed, and the court found no merit in the appellant's contentions.
JUDGMENT (Oral)
MANMEET PRITAM SINGH ARORA, J.
1. This appeal filed under Section 10 of the Delhi High Court Act, 1966 impugns the order dated 17.10.2023 passed in I.A. No. 8173/2019 filed in CS (OS) 1169/2014, titled as `Mukesh Saini v. Madan Lal Saini (since deceased) & Ors.' whereby the learned Single Judge dismissed the Appellant's application (i.e., I.A. No. 8173/2019) seeking permission to purchase the shares of Respondent Nos. 1.1 to 1.3 in the immoveable property bearing no. 36, Sham Nagar, Kalkaji, New Delhi (`suit property') for the same consideration, at which the said property is being sold to third parties i.e., Respondent Nos. 2 and 3 (`prospective purchasers'). The learned Single Judge further, observed that in view of dismissal of I.A. No. 8173/2019, the directions issued to Respondent Nos. 2 and 3 on 26th July, 2022 in the said suit for execution of sale deed in favour of the prospective purchasers stands restored.
2. The Appellant is the plaintiff and the Respondent Nos. 1.1 to 1.3 are defendant nos. 2 to 4 respectively. The suit has been filed, inter alia, seeking partition of the suit property and permanent injunction.
3. At the outset, learned counsel for the Appellant states that the mediation proceedings initiated in pursuance of the directions issued vide impugned order have failed.
3.1. He states that the Appellant is ready and willing to purchase the shares of Respondent Nos. 1.1 to 1.3 in the suit property at the same consideration, which was agreed to be paid by the prospective purchasers as per the Agreement to Sell (`ATS') dated 25th July, 2014.
3.2. He states that the learned Single Judge erred in restoring the order dated 26th July, 2022, as the same stood recalled on 11th July, 2023. He states that prospective purchasers have failed to pay the balance consideration as per the directions issued by the learned Single Judge vide orders dated 10th July, 2018, 28th May, 2019 and 26th July, 2022. He states that therefore, the said purchasers are not entitled to the relief granted vide order dated 10th July, 2018 as well as the subsequent orders.
3.3. He states that the prospective purchasers were handed over the possession of the suit property in the year 2014 on payment of a token amount of Rs. 50 Lacs as against the agreed sale consideration of Rs. 2.40 Crores. He states that the Respondents have carried out unauthorised construction in the suit property and therefore, there is no equity in their favour.
4. This Court has considered the submissions of the learned counsel for the Appellant and perused the record.
5. It is a matter of record that prior to the filing of the suit, the father of the Appellant, late Shri Madan Lal Saini, had entered into an ATS dated 25th July, 2014 with the prospective purchasers for sale of the suit property for a sum of Rs. 2.40 Crore. Late Shri Madan Lal Saini accepted a sum of Rs. 50 Lacs as advance and handed over the physical possession of the suit property to the said purchasers.
5.1. The learned Single Judge vide order dated 10th July, 2018, in an application filed by the Appellant herein under Order XXXIX Rule 1 and 2 Code of Civil Procedure, 1908 (`CPC') permitted the defendants to execute the sale deed in favour of Respondent Nos. 5 and 6 and secured the interest of the Appellant by directing the prospective purchaser to deposit a sum of Rs. 48 Lacs towards the Appellant's share, with the Court. The said order was upheld by the Division Bench in FAO (OS) 120/2018 vide order dated 7th March, 2019. The said orders were thereafter, challenged by the Appellant in SLP (C) No. 10935/2019, which was dismissed by the Supreme Court on 7th May, 2019, observing that no interference is merited with the order dated 7th March, 2019. Therefore, the order dated 10th July, 2018, has attained finality.
5.2. The Supreme Court, however, in its order dated 7th May, 2019, reserved liberty to the Appellant to make an offer for purchase of the shares of the other co-sharers in suit property
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