IQBAL AHEMAD AND OTHERS vs. AMBABAI AND OTHERS

1 IN THE HIGH COURT OF KARNATAKA, CIRCUIT BENCH AT GULBARGA DATED THIS THE 29TH DAY OF JANUARY 2013 BEFORE THE HON’BLE MR.JUSTICE N.KUMAR WRIT PETITION No. 12912/2008 (GM-CPC) C/W WRIT PETITION No.5512/2008 IN W.P.No.12912/2008 BETWEEN: 1. SRI IQBAL AHEMAD S/O. NABISAB PATEL AGED ABOUT 59 YEARS OCC: MEDICAL PRACTITIONER R/AT NEAR DAKHANI IDAGA BIJAPUR. 2. SMT NASIMA BEGUM W/O. JANPATEL BAGALI AGED ABOUT 64 YEARS OCC: HOUSEHOLD WORK R/AT NEAR DAKHANI IDAGA BIJAPUR. 3. SMT KHURSHID BEGUM W/O. MAHAMMADBEG INAMDAR AGED ABOUT 62 YEARS OCC: HOUSEHOLD WORK R/AT NEAR DAKHANI IDAGA BIJAPUR. 4. SMT MAHIRUNNISA W/O. KASIMSAB TAVARMANE

2 AGED ABOUT 52 YEARS OCC: HOUSEHOLD WORK R/AT NEAR DAKHANI IDAGA BIJAPUR. PLAINTIFFS 2 TO 4 ARE REP BY THEIR GPA HOLDR PLAINTIFF No.1 IQBAL AHEMED S/O. NABISAB PATEL. 5. SMT SHAMSHAD BEGAUM W/O. SHAHNAWAZ PATEL AGED ABOUT 44 YEARS OC: AGRICULTURE AND HOUSEHODL WORK R/AT TORVI (NAVARASPUR) 6. SMT NAZAMEEN BANU W/O. SHABBIR AHMED MANIYAR AGED ABOUT 29 YEARS OCC: HOUSEHOLD WORK R/AT SHEDBAL, TALUK ATHANI DIST BELGAUM 7. SRI SARFARAJ NAZAW S/O. SHAHNAWAZ PATEL AGED ABOUT 28 YEARS OCC: AGRICULTURE AND BUSINESS R/O. TORVI (NAVARASPUR) 8. SRI MUDASAR NAWAZ S/O. SHAHNAWAZ PATEL AGED ABOUT 27 YEARS R/O. TORVI (NAVARASPUR) 9. SRI IMTIYAZ NAWAZ S/O. SHAHNAWAZ PATEL AGED ABOUT 26 YEARS R/O. TORVI (NAVARASPUR) 10. SMT MALAN BANU D/O. SHAHNAWAZ PATEL AGED ABOUT 23 YEARS R/O. TORVI (NAVARASPUR) 11. SRI MAHAMMAD NAWAZ S/O. SHAHNAWAZ PATEL

3 AGED ABOUT 22 YEARS R/O. TORVI (NAVARASPUR) 12. SMT FARIDA BANU D/O. SHAHNAWAZ PATEL AGED ABOUT 21 YEARS R/O. TORVI (NAVARASPUR) ... PETITIONERS (BY SRI. VEERESH B PATIL & SRI.DEEPAK V. BARAT, ADVS) AND: 1. SMT AMBABAI W/O. BHIMARAO KULKARNI AGED ABOUT 68 YEARS OCC: HOUSEHOLD WORK R/O. TIKOTA, TALUK BIJAPUR. 2. SRI SRINIVAS A/F BHIMARAO KULKARNI AGED ABOUT 32 YEARS OCC: PRIVATE WORK/ AGRICULTURE R/O. NEAR SWAGAT LODGE SHAHUNAGAR, BIJAPUR. 3. SMT KALAVATI W/O. BNALAWANT KULKARNI AGED ABOUT 73 YEARS OCC: HOUSEHOLD WORK R/O. TIKOTA TALUK BIJAPUR. 4. SRI PRAKASH S/O. BALAWANT KULKARNI AGED ABOUT 72 YEARS OCC: AGRICULTURE R/O. TIKOTA TALUK BIJAPUR. 5. SMT CHAYA D/O BALAWANT KULKARNI AGE MAJOR (50 YEARS) OCC: HOUSEHOLD WORK DELETED AS PER COURT ORDER DT:17.11.2008 DELETED AS PER COURT ORDER DT:17.11.2008

4 R/O. C/O. V H KULKARNI RETD ENGINEER NO.8, HARSHAD MAHALAXMI COLONY, GENDAMALA STATE MAHARASTRA. 6. SRI VENKATESH S/O. BALAWANT KULKARNI AGED ABOUT 57 YEARS OCC: AGRICULTURE R/O. TIKOTA TALUK BIJAPUR. 7. SRI PRAHALAD S/O. BALAWANT KULKARNI AGED ABOUT 51 YEARS OCC: AGRICULTURE R/O. TIKOTA TALUK BIJAPUR. 8. SRI VADIRAJ S/O. BALAWANT KULKARNI AGED ABOUT 45 YEARS OCC: AGRICULTURE R/O. TIKOTA TALUK BIJAPUR. 9. SRI SRIKATNH S/O. BALAWANT KULKARNI AGED ABOUT 43 YEARS OCC: AGRICULTURE R/O. TIKOTA TALUK BIJAPUR. 10. SRI GOVIND LAXMANARAO KULKARNI AGED ABOUT 69 YEARS OCC: RETD BANK OFFICIAL R/O. TIKOTAKAR BUILDING SHAHU NAGAR, TALUK BIJAPUR. 11. SMT PRABHAVATI W/O. PRABHAKAR KULKARNI AGED ABOUT 63 YEARS OCC: HOUSEHOLD WORK R/O. TIKOTA DELETED AS PER COURT ORDER DT:17.11.2008

5 TALUK BIJAPUR. 12. SRI LAXMAN PRABHAKAR KULKARNI AGED ABOUT 41 YEARS OCC: BUSINESS AND AGRICULTURE R/O. TIKOTA TALUK BIJAPUR. 13. SMT ASHA D/O. DHANARAJ MANGALWADE AGE MAJOR (50 YEARS) OCC: HOUSEHOLD WORK R/O. C/O. B.R. MANGALWADHE 17/267 ADHARASH NAGAR WORLI MUMBAI - 25 14. SMT NISHA W/O. VIDYANAND GOSAWI AGE MAJOR ( 48 YEARS) OCC: HOUSEHODL WORK R/O. NO.5, KRISHNA KUTIR CO -OPERATIVE SOCIETY M D MARG PACH PAKADI ,THANE DISTRICT. 15. SMT VARSHA W/O. BALBHIM KULKARNI AGED ABOUT 46 YEARS OCC: HOUSEHOLD WORK R/AT C-2/S-23 MUKTA ROAD VASAYEE, DISTRICT THANE 16. SMT MANISHA W/O. BHUSHAN BHATYAL AGED ABOUT 44 YEARS OCC: HOUSEHODL WORK R/AT C/O.B S BHAGATAYAL NO.8, SHIVANAND CO OPERATIVE SOCIETY PLAY GROUND CROSS ROAD, VILE PARLE, 17. SRI NARAYAN S/O. LAXMAN RAO KULKARNI AGED ABOUT 56 YEARS OCC: PRIVATE WORK R/O. SION MUMBAI DELETED AS PER COURT ORDER DT:17.11.2008 DELETED AS PER COURT ORDER DT:17.11.2008

6 18. SMT SUDHA W/O. MADHAV KULKARNI @ TIKOTAKARAGED AGED ABOUT 63 YEARS OCC:HOUSEHOLD WORK R/O. KOLHAPUR MAHARASHTRA 19. SMT ANUPAMA D/O. MADHAV KULKARNI @ TIKOTKAR AGED ABOUT 27 YEARS OCC: PRIVATE WORK R/AT KOLHAPUR. 20. SRI SUDHIR LAXMANRAO KULKARNI AGED ABOUT 46 YEARS OCC: PRIVATE WORK R/O. KOLHAPUR. 21. SMT MANDAKINI W/O. SHAMRAO HIREKARUR AGED ABOUT 54 YEARS OCC: INCOME TAX PRACTITIONER R/O. SHOLAPUR. ... RESPONDENTS (BY SRI. UMESH V. MAMADAPUR, ADV FOR RESPONDENT No.10 NOTICE TO R.16 SD V/O DT: 17.11.2008 R.1, R3-R9, R12-R15 & R.17-R.21 ARE DELETED R2 AND R11 ARE NOTICE DISPENSED WITH) THIS WRIT PETITION FILED PRAYING TOQUASH THE IMPUNGED ORDER AT AT ANN-Q DT.20.9.2008, PASSED IN FDP NO.2/04, ON THE FILE OF THE PRL. CIVIL JUDGE (SR.DN), BIJAPUR AT BIJAPUR IN IA.NO.7. DELETED AS PER COURT ORDER DT:17.11.2008

7 IN W.P.No.5512/2008 BETWEEN: 1. SRI IQBAL AHEMAD S/O. NABISAB PATEL AGED ABOUT 59 YEARS OCC: MEDICAL PRACTITIONER R/AT NEAR DAKHANI IDAGA BIJAPUR. 2. SMT NASIMA BEGUM W/O. JANPATEL BAGALI AGED ABOUT 64 YEARS OCC: HOUSEHOLD WORK R/AT NEAR DAKHANI IDAGA BIJAPUR. 3. SMT KHURSHID BEGUM W/O. MAHAMMADBEG INAMDAR AGED ABOUT 62 YEARS OCC: HOUSEHOLD WORK R/AT NEAR DAKHANI IDAGA BIJAPUR. 4. SMT MAHIRUNNISA W/O. KASIMSAB TAVARMANE AGED ABOUT 52 YEARS OCC: HOUSEHOLD WORK R/AT NEAR DAKHANI IDAGA BIJAPUR. PLAINTIFFS 2 TO 4 ARE REP BY THEIR GPA HOLDR PLAINTIFF No.1 IQBAL AHEMED S/O. NABISAB PATEL. 5. SMT SHAMSHAD BEGAUM W/O. SHAHNAWAZ PATEL AGED ABOUT 44 YEARS OC: AGRICULTURE AND HOUSEHODL WORK R/AT TORVI (NAVARASPUR) 6. SMT NAZAMEEN BANU W/O. SHABBIR AHMED MANIYAR AGED ABOUT 29 YEARS

8 OCC: HOUSEHOLD WORK R/AT SHEDBAL, TALUK ATHANI DIST BELGAUM 7. SRI SARFARAJ NAZAW S/O. SHAHNAWAZ PATEL AGED ABOUT 28 YEARS OCC: AGRICULTURE AND BUSINESS R/O. TORVI (NAVARASPUR) 8. SRI MUDASAR NAWAZ S/O. SHAHNAWAZ PATEL AGED ABOUT 27 YEARS R/O. TORVI (NAVARASPUR) 9. SRI IMTIYAZ NAWAZ S/O. SHAHNAWAZ PATEL AGED ABOUT 26 YEARS R/O. TORVI (NAVARASPUR) 10. SMT MALAN BANU D/O. SHAHNAWAZ PATEL AGED ABOUT 23 YEARS R/O. TORVI (NAVARASPUR) 11. SRI MAHAMMAD NAWAZ S/O. SHAHNAWAZ PATEL AGED ABOUT 22 YEARS R/O. TORVI (NAVARASPUR) 12. SMT FARIDA BANU D/O. SHAHNAWAZ PATEL AGED ABOUT 21 YEARS R/O. TORVI (NAVARASPUR) ... PETITIONERS (BY SRI. VEERESH B PATIL & CHAITANYA KUMAR, ADVS)

9 AND: 1. SMT AMBABAI W/O. BHIMARAO KULKARNI AGED ABOUT 68 YEARS OCC: HOUSEHOLD WORK R/O. TIKOTA, TALUK BIJAPUR. 2. SRI SRINIVAS A/F BHIMARAO KULKARNI AGED ABOUT 32 YEARS OCC: PRIVATE WORK/ AGRICULTURE R/O. NEAR SWAGAT LODGE SHAHUNAGAR, BIJAPUR. 3. SMT KALAVATI W/O. BNALAWANT KULKARNI AGED ABOUT 73 YEARS OCC: HOUSEHOLD WORK R/O. TIKOTA TALUK BIJAPUR. 4. SRI PRAKASH S/O. BALAWANT KULKARNI AGED ABOUT 72 YEARS OCC: AGRICULTURE R/O. TIKOTA TALUK BIJAPUR. 5. SMT CHAYA D/O BALAWANT KULKARNI AGE MAJOR (50 YEARS) OCC: HOUSEHOLD WORK R/O. C/O. V H KULKARNI RETD ENGINEER NO.8, HARSHAD MAHALAXMI COLONY, GENDAMALA STATE MAHARASTRA. 6. SRI VENKATESH S/O. BALAWANT KULKARNI AGED ABOUT 57 YEARS OCC: AGRICULTURE R/O. TIKOTA TALUK BIJAPUR. 7. SRI PRAHALAD S/O. BALAWANT KULKARNI

10 AGED ABOUT 51 YEARS OCC: AGRICULTURE R/O. TIKOTA TALUK BIJAPUR. 8. SRI VADIRAJ S/O. BALAWANT KULKARNI AGED ABOUT 45 YEARS OCC: AGRICULTURE R/O. TIKOTA TALUK BIJAPUR. 9. SRI SRIKATNH S/O. BALAWANT KULKARNI AGED ABOUT 43 YEARS OCC: AGRICULTURE R/O. TIKOTA TALUK BIJAPUR. 10. SRI GOVIND LAXMANARAO KULKARNI AGED ABOUT 69 YEARS OCC: RETD BANK OFFICIAL R/O. TIKOTAKAR BUILDING SHAHU NAGAR, TALUK BIJAPUR. 11. SMT PRABHAVATI W/O. PRABHAKAR KULKARNI AGED ABOUT 63 YEARS OCC: HOUSEHOLD WORK R/O. TIKOTA TALUK BIJAPUR. 12. SRI LAXMAN PRABHAKAR KULKARNI AGED ABOUT 41 YEARS OCC: BUSINESS AND AGRICULTURE R/O. TIKOTA TALUK BIJAPUR. 13. SMT ASHA D/O. DHANARAJ MANGALWADE AGE MAJOR (50 YEARS) OCC: HOUSEHOLD WORK R/O. C/O. B.R. MANGALWADHE 17/267 ADHARASH NAGAR WORLI MUMBAI - 25

11 14. SMT NISHA W/O. VIDYANAND GOSAWI AGE MAJOR ( 48 YEARS) OCC: HOUSEHODL WORK R/O. NO.5, KRISHNA KUTIR CO -OPERATIVE SOCIETY M D MARG PACH PAKADI ,THANE DISTRICT. 15. SMT VARSHA W/O. BALBHIM KULKARNI AGED ABOUT 46 YEARS OCC: HOUSEHOLD WORK R/AT C-2/S-23 MUKTA ROAD VASAYEE, DISTRICT THANE 16. SMT MANISHA W/O. BHUSHAN BHATYAL AGED ABOUT 44 YEARS OCC: HOUSEHODL WORK R/AT C/O.B S BHAGATAYAL NO.8, SHIVANAND CO OPERATIVE SOCIETY PLAY GROUND CROSS ROAD, VILE PARLE, 17. SRI NARAYAN S/O. LAXMAN RAO KULKARNI AGED ABOUT 56 YEARS OCC: PRIVATE WORK R/O. SION MUMBAI 18. SMT SUDHA W/O. MADHAV KULKARNI @ TIKOTAKARAGED AGED ABOUT 63 YEARS OCC:HOUSEHOLD WORK R/O. KOLHAPUR MAHARASHTRA 19. SMT ANUPAMA D/O. MADHAV KULKARNI @ TIKOTKAR AGED ABOUT 27 YEARS OCC: PRIVATE WORK R/AT KOLHAPUR. 20. SRI SUDHIR LAXMANRAO KULKARNI AGED ABOUT 46 YEARS OCC: PRIVATE WORK

12 R/O. KOLHAPUR. 21. SMT MANDAKINI W/O. SHAMRAO HIREKARUR AGED ABOUT 54 YEARS OCC: INCOME TAX PRACTITIONER R/O. SHOLAPUR. ... RESPONDENTS (BY SRI. D.RAVIKUMAR GOKAKAKAR, ADV FOR R.10 NOTICE TO R.1, 3 TO 9, 12 TO 15 AND 17 TO 21 DISPENSED WITH V/C/O DT:28.05.2008 R2, 11 & 16 ARE DISPENSED WITH V/C/O DT: 16.2.2009) THIS WRIT PETITION FILED PRAYING TO QUASH THE IMPUNGED ORDER AT ANN-N DT.26.2.2008, PASSED IN FDP NO.2/04, ON THE FILE OF THE PRL. CIVIL JUDGE (SR.DN), BIJAPUR AT BIJAPUR AND ETC. THESE WRIT PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING: ORDER These two writ petitions arise out of the very same order passed in the Final Decree Proceedings. They are taken up for consideration together and disposed of by this common order. 2. The deceased Nabisab Husensab Patel the original plaintiff filed a suit in O.S.No.40/1979 for declaration that he is entitled to half share and he wanted shares to

13 be divided by partition and separate possession by metes and bounds. 3. It is the specific case of the plaintiff that the defendant No.1 from whom he purchased the property represented that there was a division of the schedule property, i.e., the house property and he is selling his separate share. But he later came to know that real partition by metes and bounds has not been effected. Therefore, he filed a suit for partition and separate possession of half share which represents share of first defendant in the schedule property. The defendant No.1 contested the suit denying the same. Other defendants who were the other members of the family also contested the suit contending that first defendant Ambabai has no right to sell any portion of the property in favour of plaintiff. The Trial Court framed as many as 10 issues. After contest the suit came to be decreed holding that the documents produced by the parties to the case would show that the family continued to be

14 joint after the death of Laxman Rao S/o Venkatesh. Names of defendants 3 to 10 came to entered in the CTS record along the defendant No.1 as their uncle. Therefore the contentions raised by other defendants that the suit property was ancestral property of the grand father, the branch of defendant No.1, has no right was not accepted and therefore plaintiffs’ suit came to be decreed granting him half share in the suit property. 4. Aggrieved by the said judgment and decree of the Trial Court, the defendants preferred a Regular Appeal No.96/1990. In the said appeal plaintiff preferred cross appeal claiming half share. The appeal preferred by the appellant was dismissed. Cross appeal was allowed and plaintiff was granted half share in the property. Aggrieved by the said judgment and decree, the defendants preferred second appeal in RSA No.259/1999 and 392/1999 both of which came to be dismissed. Thus the plaintiff was declared to be entitled to half share in the schedule property. In the mean

15 while, plaintiff died, the present petitioners are his legal heirs. They have filed an application for drawing of the final decree in FDP No.2/2004. In the said final decree proceedings, defendant No.10 filed an application under Section 4 of the Partition Act 1893 undertaking to purchase the property. He also filed an application for appointment of a civil engineer to value the property. First defendant in the suit filed an objection for appointment of civil engineer for valuing the property I.A.10. The application filed for appointment of Civil Engineer was allowed by the Final Decree Court on 26.02.2008. Aggrieved by the said orders the petitioner herein preferred W.P. No.12/2008. The rule was issued order dated 26.02.2008 was stayed. However liberty was given to the Final Decree Court to proceed in the matter in accordance with law. Thereafter the trial Court recorded the evidence of the parties to determine the market value of the property as on the date of the suit. The defendant No.10 adduced evidence such as

16 registered sale deeds showing the value of the property on the date of the suit. Petitioners did not adduce any evidence as they were insisting on a share in the property. They contended that the properties are partable and therefore they should be put in possession of half share in the property. The trial Court after recording the evidence and after considering rival contentions passed order on IA.VII on 20.07.2008 permitting the defendant No.10 to purchase half share of the plaintiffs/petitioners herein for a sum of Rs.2,01,600/-. Aggrieved by the said order petitioners have preferred the W.P.No.12912/2008. 5. Learned counsel appearing for the petitioners contended that the total measurement of the property is 8064 sq.ft. Half of this property will come to 4032 sq.ft. Therefore the property is partiable. The question of permitting defendant No.10 to purchase half share would not arise. Section.4 of the partition Act is not applicable. Because the petitioners/plaintiffs have

17 purchased the property belonging to the defendant No.1 at partition. It is not a joint family property and therefore contends the order passed by the trial Court requires to be set aside. He further contended that the trial Court ought not to have valued the market value of the property and that should have been left to the competent person Civil Engineer who would have given valuation. Therefore that portion of order requires to be set aside. Lastly, it was contended that even the Court were to evaluate the market value of the property it should have taken in to consideration the market value on the date of final decree and not the market value as on the date of the suit for partition. For the aforesaid reasons, he submits the impugned order requires to be set aside. 6. Per contra learned counsel appearing for defendant No.10 submitted that the property in question is undivided joint Hindu family property. Therefore Section 4 is attracted. The application of

18 defendant No.10 before trial Court is rightly allowed under Section 4 of the Act. When an attempt was made for appointment of Civil Engineer, which application was allowed by the trial Court, the petitioner challenged the said order. The matter was stayed. Therefore it is not open to them no contend that the property is to be evaluated by Civil Engineer. Though the date of the market value is on the date of final decree is to be taken into consideration i.e. the criteria, if the property is to be sold between co-sharers that has no application. In this case as on the date of the suit the trial Court rightly determined the market value as on the date of the suit. 7. In the light of the aforesaid facts and rival contentions the point that arises for consideration is as under: 1) Whether Section.4 of the Partition Act is attracted to the facts of this case? 2) Whether the valuation made by the trial Court is just and proper?

19 8. Point No.1: Section.4 of the Partition Act reads as under: 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 belief. 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 foregoing section.

20 The condition precedent for application of this provision is, a transferee has filed a suit for partition and separate possession of the share of his vender in a undivided family. Secondly either sharers undertake to purchase his share. This Court is under an obligation to value the property and direct to pay. In the instant case as set out about the plaintiff has specifically averred in the plaint he is seeking the partition of half share which belongs to the first defendant who is vendor, in the joint family. Dwelling house, which is not yet partitioned. Therefore it is undisputed that the schedule property is a dwelling house. It is the property belonging to undivided family. First defendant even if he has half share, as no partition has taken place and he has purchased undivided half share and he is filing the suit for partition and separate possession of his undivided share and the conditions prescribed under Section 4 of the Act are satisfied. The other sharer, namely defendant No.10 has filed an application under

21 Section 4 undertaking to purchase the share of the plaintiff. Therefore the provisions of Section.4 is attracted. The Court passed an order for appointment of Civil Engineer to value the property and submit the report to the Court. The very petitioners challenged the said order and got orders stayed. In other words they did not want Civil Engineer to evaluate the market value of the property. Therefore now it is not open them to contend that the Civil Engineer has to evaluate the property.

Secondly Section.4 provides absolute discretion to the Court in the matter of valuation of the share in such manner as it deems fit evaluation by the Civil Engineer is only one such mode. If the Court choose to hold an enquiry, the portion can lead evidence regarding market value of the property. If the Court undertakes that enquiry it cannot found fault. In fact a reference Court which is a Civil Court determines the market value of the property on the basis of the evidence to be adduced by the parties and in particular

22 taking note of the sale deeds executed which are in proximity to preliminary notification. 9. In the instant case defendant No.10 produced sale deeds which shows the market value of the property as on the date of the suit. On the contrary the plaintiff/petitioner did not produce any evidence in this regard. Therefore the trial court on appreciation of the said documentary evidence produced on record, recorded the finding that the value of the property as on the date of the suit is Rs.3.60 paise per Sq.ft. and for 4032 sq.ft, the value will come to Rs.2,01,600/-. In fact the plaintiff purchased this property in the year 1974 for Rs.20,000/-. The Court was valuing the property on the date of the suit i.e., in the year 1979. Therefore the said valuation cannot be found fault. 10. It was next contended that the market value of the property is to be evaluated as on the date of the final decree proceedings and not on the date of this suit. In

23 support of the said contentions reliance is placed on the judgment of the Supreme Court in the case of M.L.Subbaraya Setty and others vs. M.L.Nagappa Setty and others reported in AIR 2002 Supreme Court 2066 where at para-29 as under: Another question to be determined is as to the date of valuation of the properties in a suit for partition. Ordinarily, it has to be the date of the passing of the final decree and not the date of filing of the suit for partition. In a given case, however, there may be exception of this general rule. It is a matter of common knowledge that such suits for partition take considerable time for disposal. There is a big time lag between date of filing of the suit and date of the decision thereof. There is also considerable lapse of time between passing of preliminary decree and passing of final decree. Take the present case, suit was filed in the year 1948. Preliminary decree proceedings were finalized in 1971 by decision of this Court. Thereafter more than 30 years have lapsed, the parties are still no way near the final partition. It would be absurd if it was to be held that the valuation of 1940 or 1948 should be taken. It is also possible that in a given case, the value of one property may appreciate drastically while not so in the case of some of the parties may be in possession of those properties. It has been the endeavor of the Courts in such suits to protect. Preserve and respect the possession of the parties as far as possible. While so

24 protecting there has to be equalization of shares which has been recognized in law by making a provision for payment of Owlety.”

Relying on the said judgment this Court in the case of Vasudeva Murthy, since dead by his LRS., and Others Vs. Mariyappa, since dead by his LRs and Others reported in ILR 2003 KAR 4558 held that : The value of the property has to be ascertained as on the date of the final decree proceedings and it is necessary if the parties so desire to appoint a Commissioner to ascertain market value of the property. Both the cases referred to supra are the cases where market value was to be ascertained to compensate other co-sharers. They were not dealing with the case of transferee third party stranger. In fact in the case of Sadasiba alias Sadananda Nayak and another Vs. Baban Sahoo and others reported in AIR 1994 Orissa 247 where in it is held that It cannot be said that power of Court to make a valuation of such share in such manner as it thinks fit is to be exercised judicially and as such the stranger purchaser would be entitled to receive that amount which he paid and not more.

25 If consideration paid by the stranger would have been the valuation to be paid by the shareholder allowed to repurchase, language of Section 4(1) of the Act would have clearly expressed the same. There would have been no scope for the Court to make valuation. This provision was not made with the intention to impose penalty on the stranger purchaser. Equally it was not intended that stranger purchaser would make a profit out of the transaction. Therefore, court is to make the valuation of the share on the date when the suit for partition is filed. Guidelines for determination of market value under S.23(1) of the Land Acquisition Act, 1894 should be adopted by the Court taking into account those matters which are excluded from considerations under Section 24 of that Act which, though are relevant materials were specifically excluded for the purpose of that Act. However, circumstances which led to the litigation and conduct of parties would be relevant for the purpose of determination of valuation which would normally be the market value of the land on the date of the suit for partition. Principle would be what a bonafide purchaser would be willing to pay on that date. Therefore it is clear when a person who is not a member of joint family, takes the risk of purchasing undivided share from coparcener or member of joint family, Section4 of the Partition Act mandates for if sharer undertakes to buy a share of such third party alien, such third party stranger has no right to partition and possession of his share in the property. He is only

26 entitled to market value of the share which he has purchased. Therefore there cannot be any equity in his favour. If he has purchased the property under registered sale deed and on that date if he has filed suit for partition, what he was entitled to is only market value of the share which he was trying to enforce. Merely because the partition suit took considerable time for ultimate conclusion is not a factor which could be held in his favour. Therefore the judgment of the Supreme Court and this Court referred to supra has no application to case where suit is filed by third party stranger who is seeking division of share by metes and bounds in joint family dwelling house. In that view of the matter the trial Court committed no illegality in determining the market value of the property as on the date of the suit. However if that is the amount liable to be paid by the defendant to the plaintiff, it was not paid as on the date of the suit. Therefore that money continued to be in his possession and he is also

27 enjoying the property. To that extent, the plaintiff is to be duly compensated. It is appropriate that the Court should award interest at 12% on the aforesaid amount from the date of the suit till the date of the payment of the amount. That would meet the ends of justice. It is submitted that the amount determined by the trial court is already deposited by the defendant No.10 on 30.9.2008. In which event, he has to deposit the interest till the date of discharge of his liability. For the aforesaid reasons I do not see any merit in both the petitions. They are dismissed. However, defendant No.10 shall pay interest @ 12% from the date of the suit till 20.08.2008. No costs. Sd/- JUDGE sdu