Judgment:
IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction ORIGINAL SIDE BEFORE : The Hon’ble JUSTICE SOUMEN SEN C.S.No.2 of 1996 Kedar Nath Sen versus Smt.
Sulekha Sen & ORS.For the plaintiff : Mr.Tapan Coomar Dey, Mr.Debsoumya Basak.
For the Defendant s : Mr.Arindam Banerjee.
Heard On : 09.10.2015, 27.11.2015, 04.12.2015, 18.12.2015, 21.12.2015.
Judgment On : 26th February, 2016 Soumen Sen, J.
:- The suit has now come up for acceptance of the report filed by the Advocate Commissioner and pass a final decree for partition on consideration of the report.
The Advocate Commissioner was appointed for dividing the suit property by metes and bounds in accordance with the shares declared under the preliminary decree.
The plaintiff has accepted the report filed by the Commissioner of Partition.
The defendants, however, raised objection with regard to the acceptance of the said report.
The defendant Nos.1,2 and 3 have stated that the Commissioner of Partition has incorrectly recorded in the report that the defendants had agreed to accept Lot “B”.
The Commissioner of Partition during his cross-examination was unable to refer to any agreement between the parties accepting the proposed allotment.
The defendants contend that the said premises being Premises No.16, Sankar Halder Lane, P.S.Jorabagan, Kolkata-700005 be either horizontally partitioned or the plaintiffs share could be bought out by the defendants at a reasonable price.
The dispute relates to partition of Premises No.16, Sankar Halder Lane, P.S.Jorabagan, Kolkata-700005.
The property originally belonged to Mr.Haradhan Sen.
The suit is for partition of the estate left behind by Late Haradhan Sen.
The said Haradhan Sen had two sons and one daughter, namely, Kedarnath Sen, the plaintiff, Late Pashupati Sen and Late Mira Dutta.
The defendant No.1 Smt.
Sulekha Sen is the widow of Pashupati Sen who predeceased Haradhan Sen.
Pradip Kumar Sen and Prabir Kumar Sen respectively, the defendant Nos.2 and 3 are the two sons of Pashupati Sen and grandson of Haradhan Sen.
The estate of Haradhan Sen comprises of two immovable properties, one being Premises No.16, Sankar Halder Lane, P.S.Jorabagan, Kolkata – 700005 and the other is Premises No.20B, Sankar Halder Lane, P.S.Jorabagan, Kolkata – 700005.
The Premises No.16, Sankar Halder Lane is the dwelling house of the defendant nos.1, 2 and 3.
On 22nd February, 2010, a preliminary decree was passed by consent of the parties.
The advocate commissioner was appointed to frame a scheme for partition in three lots by metes and bounds for allotment amongst the parties in respect of the said two premises.
The Commissioner of Partition was directed to take the assistance of Mr.P.K.Chowdhury, an empanelled Engineer and Valuer of this Court in framing the scheme for partition and for valuation of the said two premises.
Pursuant to the said preliminary decree, the learned Advocate Commissioner of Partition framed a scheme for partition in consultation with Mr.P.K.Chowdhury, chartered engineer and valuer by metes and bounds for allotment amongst the parties in two lots as indicated below:- (i) Premises No.20B, Sankar Halder Lane, Kolkata-700005 being fully tenanted exclusively allotted to the uncontested defendant Nos.4(a),(b).(c) and (d) and there exists no dispute about the said allotment.
(ii) Premises No.16, Sankar Halder Lane, Kolkata – 700005 is the residential house of the plaintiff and the contesting defendant nos.1, 2 and 3.
The Learned Commissioner of Partition in compliance with the report and as suggested by Mr.P.K.Chowdhury, Chartered Engineer and Valuer divided the said premises no.16, Sankar Halder Lane, Kolkata-700005 in two lots by metes and bounds in terms of the preliminary Decree dated 22nd February, 2010 being front portion identified as Lot-A and rear portion as Lot-B with clear stipulation that 4’ ft.
wide passage open to sky would be provided to Lot-B from Sankar Halder Lane for ingress and egress to Lot-B, since the site of the said premises is perpendicular in shape and size for which it would not be possible to give wide frontage to both the lots.
The front portion being Lot-A is allotted to the plaintiff on consideration that the plaintiff is 74 years old and a practicing Advocate of this Court and the garage is indispensable for the plaintiff.
Moreover, the plaintiff has a chamber in the front portion of the said premises at the ground floor.
In the scheme of partition, the plaintiff would get the existing garage and one room on the ground floor to be used by the plaintiff as his chamber and library.
Besides the plaintiff would also get two rooms on the fiRs.floor.
The commissioner of partition proposed to allot rear portion being Lot-B to the contesting defendants upon consideration that the defendant No.2 is in service.
The defendant No.3 is practically unemployed having no tangible income.
Moreover, no portion of Lot-B would be required to be demolished to implement the scheme of partition as suggested by the Commissioner of Partition based on the report of the Chartered Valuer.
The learned Counsel for the plaintiff submits that the apprehension of the defendant No.2 that the building might collapse while hammering in order to make a 4’ft wide passage is misplaced.
There is no possibility of any damage being caused to any wall in any portion of Lot-B in implementing the scheme of partition in terms of the preliminary decree.
It is submitted that upon implementation of the scheme, the defendant Nos.1, 2 and 3 being the allottee of Lot-B would get four rooms on the ground floor and four rooms on the fiRs.floor for exclusive use and enjoyment.
The learned Counsel has referred to the plan annexed to the report of the Chartered Valuer and Engineer.
The plaintiff in Lot-A would get one garage and one room of the ground floor and two rooms on the fiRs.floor.
The plaintiff simultaneously would be required to vacate two rooms on the ground floor and two rooms on the fiRs.floor.
Similarly, the defendant Nos.1, 2 and 3 would have to vacate one small room on the ground floor which would have to be break open to make a 4’ ft.
wide passage open to sky for ingress and egress to Lot-B from Premises No.16, Sankar Halder Lane, P.S.Jorabagan, Kolkata – 700005.
The said dependants would also get two rooms on the fiRs.floor.
The defendant No.2 during cross- examination has expressed apprehension that in the event defendant Nos.1, 2 and 3 have to vacate the said premises for any reason then they would have no other alternative accommodation.
It is submitted that the said assertion is incorrect since the said defendants have an accommodation at 3, Gangadhar Sen Lane, Baranagar, Kolkata-700036 the ancestral house of the defendants and the said defendants are occupying a portion of the said premises at Baranagar in the capacity of Trustee and shebaits of Sree Sree Iswar Gadhadar Jew, the family deity established by late Gangadhar Sen after whose name the road earns the distinction.
The defendants during cross-examination also suggested that the partition of the Premises No.16, Sankar Halder Lane, be made horizontally which is practically impossible and contrary to the preliminary decree.
It is submitted that the valuer has valued the said property on the basis of land and building method of valuation.
The 4’ ft.
passage was not taken into consideration for the purpose of valuation.
The learned Counsel has relied upon internal page 4 of the said report which reads:- (1) Area of the premises = 2 cottahs and 8 chittacks equivalent to 1800 sq.
ft.
(2) Area of lot “A” =681.31 sq.
ft.
valuation of land is made @ Rs.8,00,000/- per cottahs or Rs.1111.11 per sq.
ft.
=Rs.7,57,010-00 Valuation of Build up area Rs.8,57,667/- Less: depreciation 70% On Rs.8,57,667.- Rs.6,06,376/- =2,57,300-00 Total: Rs.10,14,310/- It is submitted that area of 4’ ft.
passage measuring about 246.32 sq.ft.
is not included for valuation purpose.
It is, thus, submitted there exists no impediment to accept the report of the commissioner of partition as well as the report of Mr.P.K.Chowdhury and a final decree may be passed for partition by confirming of the said report and the report may form part of the final decree.
Per contra, it is submitted on behalf of the defendants that the plaintiff had one point of time was residing at the said premises but is presently residing elsewhere.
The plaintiff, however, has kept the portion of the said premises which was under his occupation at the time when the plaintiff used to reside at the said premises under lock and key.
The plaintiff being a lawyer has a chamber at the ground floor of the said premises which, however, is sparingly used at present due to his age.
The only garage at the said premises is under the occupation of the plaintiff.
The plaintiff, however, does not park his car there probably because he does not own any car at present.
The other premises being 20B, Sankar Halder Lane is fully tenanted and the official receiver was collecting rent pursuant to the direction passed by this Court in the suit but had stopped doing so on the allegation that the said premises has been declared as dangerous premises by the Kolkata Municipal Corporation.
The proposal of the Commission of Partition based on the Engineer/Valuer’s report is, however, not acceptable to the defendants, inter alia, for the following reasons:- a) The Engineer/Valuer has proposed demolition of the structure at the ground floor and 1st floor level to curve out 4 feet wide passage to serve as ingress and egress for the rear portion (lot B).The Engineer/Valuer during cross-examination has admitted that the demolition is likely to cause damage to the structure at the premises no.16, Sankar Halder Lane as also that to the adjacent building which shares a common wall and the said premises shares joined roof at the ground floor level that is to say the roof of the ground floor of the 16, Sankar Halder Lane is joined and/or in continuity with the roof of the ground floor of the adjacent premises.
The learned Counsel has referred to Question Nos.6, 22, 23, 24, 25, 26, 27, 28, 29 and 30 in cross-examination of the Valuer Prabir Kumar Choudhury and answer to question Nos.17, 27, 33, 41 of defendant’s witness.
b) The Engineer/Valuer is himself not sure as to the extent of damage is likely to cause to the existing structure by the demolition and has left the same to the structural Engineer who would supervise the demolition work.
The proposal to make out passage by demolishing the structure is therefore uncertain and dependent on contingencies.
The Engineer/Valuer has also not ruled out the damage that might be caused to the adjacent premises which belongs to the third parties for the proposed demolition to pave out the passage for the lot B (rear portion).c) The defendant nos.1, 2 and 3 have reasons to apprehend that the owners of the adjacent premises would not allow such demolition once they realize or come to know that such demolition might cause harm to their property which is also an old structure.
There is also every likelihood that the other portions of the said premises no.16, Sankar Halder Lane might collapse since the condition of the same admittedly is in bad shape which is also apparent from the Engineer’s report.
The roof being made of wooden beam and barga, it is doubtful that the same would withstand the hammering and chiseling likely to take place at the time of demolition.
The plaintiff’s intention is to demolish the 150 years old dilapidated building and to enter into agreement with promoter by dispossessing the defendant Nos.1, 2 and 3 from the suit premises, which is the ancestral property of the defendants and the only place of residence of the defendants.
The plaintiff is well aware of the condition of the building and with a malafide intention trying to take steps for partition of the building by the process of hammering the same in order to get it demolished.
d) The lot B (rear portion) may have larger covered portion from that lot A, but major portion of the same is virtually not habitable.
Rooms at the rear portion (Lot B) as will be evident from the evidence of the defendants’ witness Pradip Kumar Sen are mostly dampy and the doors and windows thereat are insufficient.
The rooms are not airy, suffocating and insufficient natural light.
The construction is such that there is inadequate ventilation and cannot be occupied without making major structural addition and alteration which is neither permissible under the Municipal law nor practicably possible in view of the existing condition of the structure.
Moreover, if permissible or possible the structural addition and alteration would require huge expenses which has to be borne by the allottee of lot B (rear portion) being the defendant nos.1, 2 and 3 and has not been taken into consideration by the Engineer/Valuer.
In this context, the learned Counsel has referred to question Nos.26, 28, 29, 30, 39, 41-45 during cross-examination of Defendant No.2.
e) The Engineer/Valuer while dividing the said premises into two lots have allotted the only staircase which leads from the ground level to the ultimate roof of lot A and lot B to Lot A.
The other staircase at the said premises leads to only a part of the 1st Floor has been allotted to Lot B.
The rest portion of lot B is inaccessible through the said 2nd staircase allotted to it.
The 2nd staircase therefore has to be further erected to make the same upto the ultimate roof of Lot B which under the existing set up and the prevailing Municipal law is impermissible.
f) The Engineer/Valuer has also not taken into consideration the construction cost for such staircase and the cost of addition and alteration required to be made to make the rear portion of lot B habitable.
g) The Commissioner of Partition has mechanically adopted the report of the Engineer/Valuer without applying his own independent mind.
Neither the Commissioner of Partition nor the Engineer/Valuer has considered the shifting from the existing occupancy by the proposed division into Lot A and Lot B.
The defendant Nos.1, 2 and 3 are presently in occupation of portion of lot A which is habitable.
The defendant nos.1, 2 and 3 has to shift from those portions to lot B proposed to be allotted to the said defendants which is not only inconvenient but also impracticable unless lot B is remodeled to make it habitable.
h) The Engineer/Valuer has also not taken into consideration the feasibility of constructing underground water reservoir as also overhead tank and the possibility of the Municipal Authorities allowing separate water supply at the lot B.
The Engineer/Valuer has also not taken into consideration the cost of having such separate water connection if at all allowed by the Municipal Authorities by allottee of lot B and the infrastructure required to avail the same.
The Engineer/Valuer has also not taken into account the separate drainage system and its cost if at all permissible from lot B to the main Municipal outlet without the same being shared with the allottee of lot A.
i) The Engineer/Valuer has also not given any reasonable basis to assign the land comprised in lot B as 2/3rd of the value of lot A.
Admittedly, lot B is being the rear portion and carries much less value and in the instant case the condition of lot B with the existing advantages and disadvantages commands the same to be valued much less.
j) The Engineer/Valuer has also not taken into account that lot B can never be developed in future as the same has no frontage to the main accessible road which for all times to come will be with lot A will have.
This will also not allow the allottee of Lot B to have more covered area to meet the future increased requirement of the allottee of Lot B.
The land locked condition of Lot B being a special feature has also not been taken into consideration by the Engineer/Valuer.
The Engineer/Valuer proceeded on the basis that the plaintiff will bear the cost of demolition and other charges for making out the 4 feet wide passage being the entrance for lot B, but has not taken into consideration the additional expenses that are required to make lot B habitable as stated hereinabove.
k) The valuation arrived at for the two lots by the Engineer/Valuer is absurd and does not reflect true and fair valuation.
The allottee of lot B cannot be compensated at all by giving owelty money as the disadvantages attached to such portion cannot be compensated in terms of money.
The comparative advantage and disadvantage in Lot “A” and Lot “B” according to the learned Counsel respectively are: Advantages in Lot A (a) Widely open large rooms (b) Airy and Sunny verandah (c) Water and Sewerage system direct connected.
(d) Hassle free entry (e) Garage (f) Chamber.
Disadvantage of Lot A (a) No proper size of privy and bathroom Advantage of Lot B (a) Number of rooms more than that of Lot A Disadvantage of Lot B (a) Lack of sunlight and ventilation in eastern part (b) Damp and unhealthy condition (c) No stair case for roof.
(d) Eastern wall is dilapidated.
I have considered the objection of the defendants with regard to the acceptance of the report by the Commissioner of Partition.
The Premises no.16, Sankar Halder Lane comprises of land measuring 2 Cottahs and 8 Chittaks along with two storied residential building thereon.
The building at the said premises is admittedly a very old building of 150 years and is in a dilapidated condition as would be evident from the report of the Engineering/Valuer.
The construction is of lime with Shurki and plastering was done with lime and sand mortar.
The roofing of the ground floor as well as the 1st floor rests on timber beams and bargas.
The condition of the wooden doors and windows, the timber beams and bargas are not in good condition due to lack of maintenance and wear and tear over the years as also have been observed by the Engineering/Valuer.
There is no dispute as to the share of three branches i.e.branch of Kedarnath Sen, Late Pashupati Sen and Late Mira Dutta in the estate of Late Haradhan Sen.
Each group i.e.the plaintiff, the defendant nos.1, 2 and 3 and the substituted defendants 4(a) to 4(d) has 1/3rd share each.
Neither the daughter of Haradhan Sen nor her group after her death has ever contested the suit though according to the plaintiff prior to passing of the preliminary decree they were served.
On perusal of the report of the Engineer/Valuer as also the Commissioner of Partition, it would appear that the premises no.16, Sankar Halder Lane has been sought to be divided vertically into two lots, one lot A and the other lot B.
Lot A is the front portion whereas lot B is the rear portion.
The Commissioner of Partition has proposed to allot lot A being the front portion to the plaintiff while lot B to the defendants.
The description of lot A and Lot B will appear from the report of the Engineer/Valuer.
Lot A has an area of 681.31 square feet with covered area of 585 square feet whereas lot B has an area of 872.37 square feet with covered are of 663.68 square feet.
By computing the percentage of covered area of each lot in compass on the aggregate area, it would appear that lot A has covered area of 85.86% whereas lot B has covered area of 76.07%.
The Engineer/Valuer in order to partition the said premises by metes and bounds has proposed to make being Lot A and Lot B two separate vertical units and suggested construction of an open to sky passage from Sankar Halder Lane to the rear portion being lot B for being used as ingress and egress to the said portion.
The area of the said passage is about 246.32 sqaure feet which the Engineer/Valuer has proposed to be part of lot B.
The Engineer/ Valuer on local enquiry has arrived at a valuation of per Cottah land to be Rs.8,00,000/- equivalent to Rs.1111.11 per square feet.
The total value of the land measuring about 2 Cottahs and 8 Chittaks on such way has been arrived at Rs.20,000,20.
The Valuer has arrived at Rs.8,57,667/- to be the total replacement value for lot A whereas that for lot B at Rs.9,80,818/-.
The valuation of the built up portions allotted to lot A after providing 70% depreciation has been arrived at Rs.2,57,300/-.
By adding Rs.7,57,010/- (the value of land) and Rs.2,57,300/-, the value of lot A has been arrived at Rs.10,14,000/-.
On a similar basis, the value of lot B has been arrived at Rs.9,40,444/- by adding Rs.6,46,199/- being the value of the land with Rs.2,94,245/- being the depreciated value of the structure.
The Engineer/Valuer while computing the land value for lot B being the rear portion has taken the same to be 2/3rd of the value of the land comprised in lot A being the front portion.
The valuer has thereafter, proposed payment of Rs.36,800/- as owelty money to the allottee of lot B by allottee of lot A.
Mr.Arindam Banerjee, the learned Counsel appearing on behalf of the defendants has referred to a decision of the Bombay High Court in Janardan Mahadev Dhuru & ORS.versus Vijaynath Moreshwar Dhuru & ORS.reported at AIR1982Bombay 274 and submitted that the Court has no inherent power to order the sale, dehors the provisions of the Partition Act.
In Janardan Mahadev (supra) after considering the averments made in the plaint it was observed that the said suit is not a suit for partition and on that basis directions were given for valuation of one-third share of the plaintiff in the suit property and payment thereof by the defendants to the plaintiff.
The Hon’ble Supreme Court in Ramamurthi v.V.Rajeswararao reported at AIR1973SC643considered Sections 2 and 3 of the Partition Act and in Paragraph 8 of the judgment made the following observation:- "..................It would appeal from the Objects and Reasons for the enactment of the Partition Act that as the las stood the court was bound to give a share to each of the parties and could not direct a sale of division of the proceeds.
The could be, instances where there were insuperable practical difficulties in the way of making and equal division and the court has either powerless to give effect to its decree or was driven to all kinds of shifts and expedients in order to do so.
The court was, therefore, given a discretionary authority to direct a sale where a partition could not reasonably be made and the sale would, in the opinion of the court, be more beneficial to the parties.
But having regard to the strong attachment of the people in this country to their landed possessions the consent of the parties interested at least to the extent of a moiety in the property was made a condition precedent to the exercise by the court of the new power.
At the same time in order to prevent any oppressive exercise of this privilege those shareholders who did not desire a sale were given a right to buy the other out at a valuation to be determined by the Court." In Ramamurthi (supra) it was stated by the Apex Court that 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.
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.
The conditions which have to be satisfied before the Court can exercise the power are:- (i) There has to be a request by a shareholder or shareholders interested individually or collectively to the extent of at least a moiety of the property.
(ii) The Court must be of opinion that by reason of the nature of the property or the number of shareholders or some special circumstance, a division of the property cannot reasonably or conveniently be made and a sale of the property and distribution of the proceeds would be more beneficial for all the shareholdeRs.(Gadadhar Ghose versus Janaki Nath Ghosh & Ors., AIR1969Cal 59, 72 CWN299.
In the instant case, both the conditions are satisfied.
The house is more than 150 years old and not in good condition and virtually impartible.
It is doubtful that the municipality would give permission for demolition and construction of staircase and new structure to give effect to the partition.
Both the shareholders have agreed that the property can be sold to the highest bidder having regard to the impartible nature of the property, as horizontal partition is anathema to the very concept of partition.
In Badri Narain Prasad Choudhary & ORS.versus Nil Ratan Sarkar reported at AIR1978SC845it was held that in cases not covered by Sections 2 and 3 of the Partition Act, the power of the Court to partition property by any equitable method is not affected by the said Act.
In the instant case, both the parties have offered to purchase the share of the other parties.
The defendants, however, expressed its desire to buy the share of the plaintiff at the fair value and expressed their inability to leave the suit premises as they are residing in the said premises.
Partition is the process by which joint enjoyment of the property is transformed into an enjoyment severally.
It is an elementary principle that in case of partition where several persons are co-owners or co-sharers of immovable property, partition should be effected between them by giving to each his share in specie as far as practicable.
The right of each sharer is to his slice of the property, not merely its money value, and it is a matter of common experience that great importance is attached in this country to the possession of a share in specie by a co-sharer of property which has belonged to the family or which has descended from an ancestor.
The law gives effect to this sentiment as far as possible.
(Basanta Kumar Ghosh v Motilal Ghosh, 15 CWN555 However, certain properties are incapable of partition.
The primary consideration in such cases should be as to whether by partition the intrinsic value of the property would be destroyed.
While effecting a partition in respect of joint family properties it would not be possible to divide the properties by metes and bounds there being of necessity an allocation of properties of unequal value amongst the members of the joint family.
Properties of a larger value might go to one member and properties of a smaller value to another and, therefore, there would have to be an adjustment of the value by providing for the payment by the former to the latter by way of equalisation of their shares.
This position has been recognized in law and a provision for such payment is termed “a provision for owelty or equality of partition.” (T.S.Swaminatha v Official Receiver, AIR1957SC577 Freeman summarised the position in his Co-tenancy and Partition (1886 Ed., p.
676) as follows:- “Owelty – When an equal partition cannot be otherwise made, Courts of Equity may order that a certain sum be paid by the party to whom the valuable property has been assigned.
The sum thus directed to be paid to make the partition equal is called owelty.
It is a lien on the property on account of which it is granted.
The law cannot contemplate the injustice of taking property from one person and giving it another without an equivalent, or a sufficient security for it.
The lien for owelty has precedence over prior mortgages and other liens existing against the co-tenant against whom the owelty was awarded.” It is no doubt true that no order for sale can be made even if the property cannot be conveniently partitioned amongst the parties by metes and bounds, but cannot in such a case the property be allotted to one or more of the parties to whom no allotment can be made in the circumstances or be given monetary compensation?.
Mallick, J.
of Calcutta High Court passed this question in Pravat v Rammohan, AIR1958Cal 177 and said: “It seems to me that this court in the various cases cited (ILR3Cal
514) was inclined to think that this can be done.
The method that appealed to Rampini, J.
(15 CWN555 is to allot it to the co-sharer in possession, giving compensation to otheRs.The method which appealed to Sir Ashutosh Mukherjee, J.
is to allot to the highest bidder amongst the co-sharers and compensation to the rest, thereby ensuring the highest compensation to those to whom no allotment could be made.” The preliminary decree provides that the property has to be divided by metes and bounds.
The said partition has to be effected vertically and not horizontally.
There is lot of ill-feeling and bad blood between the parties and horizontal division of the property amongst the co-owners would result in further acrimony.
The Engineer has admitted that the proposed demolition, if given effect to, would likely to cause damage to the existing structure and might affect structural stability.
On consideration of the report it appears that the said property is impartible as it cannot be partitioned by metes and bounds.
Vertical division of the property would result in serious damage to the property.
The defendants contended that they are agreeable to buy the share of the plaintiff at a reasonable price and the plaintiff in Court has agreed to the said offer.
The plaintiff, in fact, has also agreed to buy the share of the defendants.
For the purpose of equalizing the values of the share that is to say owelty, I direct both the parties to file in Court in a sealed envelope their respective offers so as to consider the respective proposal for buying out the other co-owneRs.Pursuant to such direction both the parties in Court have filed their respective offers in a sealed envelope.
The respective offers submitted read as follows:- The offer of the plaintiff “I Kedar Nath Sen, the plaintiff abovenamed do hereby offer to purchase the undivided half share of the defendant Nos.1, 2 and 3 in premises No.16, Sankar Halder Lane, Police Station-Jorabagan, Kolkata – 700005 at a consideration of Rs.1,10,00,000/- (Rupees one crore ten lacs ) only.” The offer of the defendants As per the valuation made by the Engineer/Valuer, the total valuation of the land at Premises No.16, Shankar Haldar Lane, Kolkata – 700 005 has been assessed @ Rs.8 lacs per cottah.
The total land measures about 2 cottahs and 8 chittaks more or less.
The tentative bid of the defendant nos.1 to 3 is for 1,20,00,000/- for the entire share of the Premises No.16, Shankar Haldar Lane, Kolkata – 700 005.
The defendants are residing in the said premises and are not in a position to leave the said premises and the defendant nos.1, 2 and 3 are willing to buy the share of the plaintiff at a fair value.” Since the offer of the plaintiff is on the higher side as the plaintiff offers to pay a sum of Rs.1.10 crore to the defendants as consideration for purchasing the share of the defendants, I direct the plaintiffs to pay an enhanced sum of Rs.1.30 crore to the defendants instead of Rs.1.10 crores as owelty towards the share of the defendants in the suit premises within a period of twelve weeks from date, failing which, it would be open for the defendants to buy the share of the plaintiff at a price offered by the defendants within four weeks thereafter.
This enhancement is made in view of inflation, the money required for alternative accommodation, the advantage the plaintiff would derive becoming an absolute owner of the property and the unemployment of the defendant No.3.
In short to safeguard the interest of the defendants I feel that Rs.1.30 Crore would be just and fair.
Upon payment of the owelty money, the defendants shall make over peaceful and vacant possession of the property in question to the plaintiff within a period of eight weeks thereafter.
The Commissioner of Partition shall supervise the entire process and shall stand discharged upon compliance.
The Commissioner of Partition shall be entitled to a final remuneration of 2000 GMs.to be paid by the plaintiff.
The application for final decree, accordingly, stands disposed of.
The department shall record passing of the final decree and shall draw up the final decree as expeditiously as possible.
Urgent xerox certified copy of this judgment, if applied for, be given to the parties on usual undertaking.
(Soumen Sen, J.)