BRAHM DEV NARANG Vs. SATYAJEET NARANG

JUDGEMENT

(1.) This is a suit for partition and for permission to purchase the share of defendant No. 2.

(2.) Brief facts which gave rise to the present suit are as under: that late Shri S.L. Narang purchased plot No. 112, `K' Block, Hauz Khas, New Delhi,(`the disputed property' for short) measuring 500 sq. yards from DLF Housing and Construction Pvt. Ltd. on November 12, 1956 vide sale deed dated April 16, 1959. Later on the deceased Shri S.L. Narang gifted away the said plot of land to Shri Brahm Dev Narang i.e., the plaintiff, and to the grand son Shri Satyajeet Narang son of Shri S.D.Narang, defendant No. 1, to be shared by them in two equal portions, vide gift deed dated March 31, 1967. However, no demarcation of the shares of the parties to the present suit was done through the said gift deed. Shri Satyajeet Narang i.e., defendant No. 1 was a minor at the time of the gift. The plaintiff Shri Brahm Dev Narang and defendant No. 1 who was a minor at that time, through his father and natural guardian Shri S.D. Narang, executed a lease deed in favour of Shri S.L. Narang. The said lease deed was executed in order to enable Shri S.L. Narang to construct a residential house on the said plot since the plaintiff and defendant No. 1 were residents of Bombay. Shri S.L. Narang as per the terms of the said lease deed got constructed a residential house on the disputed property. After the completion of construction the disputed property was let out on a monthly rent of Rs. 1600.00 to Department of Adult Education during the period from June 1, 1970 to June 1, 1972. Thereafter the disputed property was let out to National Book Trust on a monthly rent of Rs. 1400.00 during the period from December 1972 to 1983. The disputed premises remained vacant during the period from 1984 to 1987. The disputed property was got repaired by the plaintiff as the same badly needed repairs at a cost of Rs. one lac. The plaintiff spent the said amount from his own pocket. Thereafter the suit property was given on rent to an officer of United Nations on a monthly rent of Rs. 6,000.00 with the consent of both the parties i.e., the plaintiff and defendant No.1. The said officer still continues in occupation of the disputed property. The property in suit was got mutated in the joint names of the parties to the present suit as is manifest from the letter dated May 8, 1980 from Municipal Corporation of Delhi to both the parties in the present suit. Defendant No. 1 in October 1987 wanted to sell one half share in the above said property as he was in straitened circumstances and needed some money. Having come to know with regard to the intention of defendant No.1.to sell his share the plaintiff offered Rs. 11 lacs by way of consideration for the share of defendant No.1. In fact, he filed an affidavit before the Income Tax Authorities at Bombay with regard to his willingness to purchase the share of defendant No. 1 for a consideration of Rs. 11 lacs. Defendant No. 1 on account of family differences refused to sell his share in the suit property to the plaintiff. He thus sold his share for a total consideration of Rs. 4 lacs to defendant No. 2 on January 5, 1988. The Plaintiff under Section 4 of the Partition Act has a preemptive right to purchase the share of a cosharer i.e., defendant No. 1. The disputed property is capable of partition by metes and bounds. The plaintiff repeatedly offered to buy the share of defendant No. 1 at a price higher than the price paid by defendant No. 2 to defendant No. 1. Defendant No. 2, the alleged transferee of half portion of the disputed property, is trying to secure the possession over his half share. Defendant No. 2 has got no right under law to interfere with the peaceful possession of the plaintiff. The plaintiff being a family member and joint owner of the premises in suit has got a pre-emptive right to purchase the half portion of the premises belonging to defendant No. 1 under Section 4 of the Partition Act. Defendant No. 1 is trying to induct a stranger into the dwelling house by the abovesaid illegal sale. It has thus been prayed that a decree for partition of the suit premises in two equal shares i.e., of the plaintiff and defendant No. 1 be passed. It has further been prayed that the Court may fix a value of the share of defendant No. 1 which is being sold to defendant No. 2 and the plaintiff undertakes to buy the share of defendant No. 1 at the abovesaid valuation so fixed.

(3.) Defendant No. 1 has resisted the claim of the plaintiff, inter alia, on the following grounds: that defendant No. 1 is neither a necessary nor a proper party inasmuch as he has already sold his un-divided share in the suit property to defendant No. 2 by a sale deed dated January 5, 1988. After the execution of the aforesaid sale deed by defendant No. 1 in favour of defendant No. 2 the defendant No. 2 has become owner of half portion of the disputed property. He has no interest; whatsoever, in the disputed property. Hence there is no question of partition between the plaintiff and defendant No. 1. It is wrong and false that the repairs of the disputed property were carried out by the plaintiff at his own expense. The fact is that defendant No. 2 always contributed to the amount whatever was spent by the plaintiff on repairs. The suit is false and frivolous and is liable to be dismissed.