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PETITIONER: MRS. MALATI RAMCHANDRA RAUT AND ORS.

       Vs.

RESPONDENT: MAHADEVO VASUDEO JOSHI AND ORS.

DATE OF JUDGMENT20/12/1990

BENCH: THOMMEN, T.K. (J) BENCH: THOMMEN, T.K. (J) SAHAI, R.M. (J)

CITATION:  1991 AIR  700            1990 SCR  Supl. (3) 577  1991 SCC  Supl.  (1) 321 JT 1991 (1)    19  1990 SCALE  (2)1366

ACT:     Partition   Act,  1893:  Sections  2  and   3--Partition suit--Properties  incapable of division by metes and  bounds Plaintiffs  prayer  for  its sale and  distribution  of  the proceeds--Defendants willing to buy.     Plaintiffs’ shares--Determination of valuation of plain- tiff’s  shares --What is relevant date--Is it when  the  de- fendants sought leave of the court to buy plaintiffs’ shares or  the date of the preliminary decree declaring the  shares of the parties?

HEADNOTE:     The  respondents  filed a suit  for  partition  claiming together  2/3rd  share while admitting that  the  defendants together  held  1/3rd share in the suit properties.  It  was pleaded by the plaintiffs that the suit properties could not be  reasonably  and conveniently divided and  therefore  had made a prayer for its sale and distribution of the  proceeds amongst the shareholders. The defendants proposed to buy  at a  valuation  the 2/3rd shares held by  the  plaintiffs  and accordingly  made a request to the court under section 3  of the  Act to direct a valuation of the same.  The  plaintiffs tried  to backtrack by asking for amendment of their  plaint to  delete their averment that the properties could  not  be reasonably  and  conveniently divided and for its  sale  and distribution  of  the proceeds. This was disallowed  by  the trial court and appeal preferred against this rejection  was unsuccessful.     The learned single judge of the High Court after  notic- ing that there was no dispute between the parties as regards their  shares  nor  was there dispute any  longer  that  the properties  were incapable of division by metes  and  bounds they  had to be sold and the proceeds distributed  according to their shares. But the defendants being willing and  actu- ally having sought leave of the court to purchase the shares of  the  plaintiffs at a valuation, those shares had  to  be valued as on the date leave to purchase was sought by  them. He, therefore, directed valuation of the properties so  that shares  of the plaintiffs could be sold to  defendants.  The plaintiffs  took an appeal before the Division  Bench  which held that the present appellants who claimed to be the legal

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representatives  of  the original defendants, had  first  to obtain probate or letters of administra- 578 tion  and  thereafter  a preliminary  decree  declaring  the shares of the parties has to be passed and the valuation  of the  properties would have to be made with reference to  the date of such preliminary decree.     The  defendants  have  come in  appeal  challenging  the correctness  of this decision. Allowing the appeal,  setting aside the judgment of the Division Bench and restoring  that of the single judge, this Court,     HELD:  It is the duty of the Courts to order the  valua- tion  of  the shares of the party asking for a sale  of  the property under Section 2 and to offer to sell the shares  of such  party  to the shareholders applying for leave  to  buy them in terms of section 3 at the price determined upon such valuation. As soon as a request for sale is made by a share- holder under Section 2, any other shareholder becomes  imme- diately 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 crystallised, the  date  with reference  to which valuation of the shares in question  has to be made is the date on which the right arose. [581C-D]     The  fact  that legal representatives  representing  the estate of a deceased defendant had not yet obtained  probate or  letters  of administration did not mean that  the  right which arose in favour of that defendant during his life when he sought leave under section 3 did not accrue to the  bene- fit  of  his estate, but was postponed  till  they  obtained probate  or letter of administration. This right came to  he vested in his estate. The valuation of the shares has to  he made  as on the date of accrual of the right  and  valuation being a fact finding process must be resorted to as soon  as possible after such accrual. [581E-G]     Whenever  the shares in question in the properties  come to be sold to the persons entitled to buy them under section 3,  the price of those shares will have to be determined  on the  basis of the valuation made with reference to the  time of accrual of the right. [582C]     R.  Ramatnunhi Iyer v. Raja V. Rajeswara Rao,  [1972]  2 SCC 721 at p. 727, followed.

JUDGMENT: