Girdhari Lal Batra vs Krishan Lal Batra & Ors.

on 12 November, 2018

Girdhari Lal Batra vs Krishan Lal Batra & Ors. on 12 November,

2018

Author: Rajiv Sahai Endlaw

Bench: Rajiv Sahai Endlaw

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of decision: 12th November,, 2018.

+ CS(OS) 650/2008, IA No.13512/2015 (u/O XII R-6 CPC), IA

No.157/2017 (u/S 151 CPC) & IA No.7335/2017 (u/S 151 CPC)
GIRDHARI LAL BATRA ..... Plaintiff
Through: Mr. Rajesh Bansal, Mr. Vijay K.
Gupta, Mr. Arun Srivastava, Ms.
Ritu Bansal, Ms. Anupama
Srivastava, Ms. Ridhima Bansal &
Mr. Raghav Bansal, Advs.
Versus
KRISHAN LAL BATRA & ORS. ..... Defendants
Through: Mr. Akshay Makhija & Ms. Seerat
Deep Singh & Mr. Ankit Tyagi,
Advs. for LRs of D-3.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

IA No.14870/2018 (of the defendant no.3 under Section 4 of the

Partition Act, 1893)

1.

Vide order dated 10th July, 2015 in this suit, for partition of property No.43-A, Rajpur Road, Civil
Lines, New Delhi-110054, filed by Girdhari Lal Batra against his brothers Krishan Lal Batra, Bihari
Lal Batra and Anil Kumar Batra, a preliminary decree for partition of the property was passed
declaring the plaintiff Girdhari Lal Batra to be having 1/3 rd share in the property and each of the
three defendants to be having the remaining 2/9 th share each in the property and on the statement
of the counsel for the plaintiff, defendant no.1 and defendant no.2 that there was a possibility of one
of the parties buying the share of the other and / or of either of the parties bringing a buyer to
purchase the share of all the parties, giving liberty to the parties to do so, the proceedings were
adjourned to 28 th October, 2015.

2. The applicant / defendant no.3 was ex parte as on 10th July, 2015 though had been earlier
participating in the suit.

3. The plaintiff Girdhari Lal Batra and the defendants no.1 and 2 Krishan Lal Batra and Bihari Lal
Batra, vide separate sale deeds, all dated 3rd November, 2016, sold their respective shares in the

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 Girdhari Lal Batra vs Krishan Lal Batra & Ors. on 12 November, 2018

property to Ombir Creation Pvt. Ltd. and which Ombir Creation Pvt. Ltd. was substituted in place of
plaintiff, defendant no.1 and defendant no.2 vide order dated 21 st February, 2017.

4. The defendant no.3 Anil Kumar Batra died on 29th May, 2016 and vide the same order dated 21st
February, 2017, his legal heirs were substituted in his place.

5. Ombir Creation Pvt. Ltd. aforesaid filed IA No.7335/2017 seeking issuance of a commission to
demarcate the 7/9th share purchased by it in the property. The said application came up before this
Court on 6 th July, 2017 when it was the contention of the legal heirs of the defendant no.3 that they
need to invoke Section 4 of the Partition Act, 1893, to exercise right of pre- emption.

6. Vide order dated 6th July, 2017, it was held that there was no need to permit the legal heirs of
defendant no.3 to file application under Section 4 of the Partition Act because such right could have
been exercised only during the period between 10th July, 2015 till 21st February, 2017 and which
was not exercised.

7. The legal heirs of defendant no.3 preferred FAO(OS) No.216/2017 to the Division Bench of this
Court against the aforesaid order dated 6 th July, 2017 to the extent holding the legal heirs of
defendant no.3 to be not entitled to invoke Section 4 of the Partition Act and which appeal was
disposed of vide judgment dated 1st October, 2018, setting aside the conclusion in the order dated
6th July, 2017 that right of pre-emption could have been exercised till 21st February, 2017 only and
directing the parties to appear before this Court on 22nd October, 2018 for the legal heirs of
defendant no.3 to come up with an offer to purchase the share of Ombir Creation Pvt. Ltd. at market
value.

8. On 22nd October, 2018, the counsel for legal heirs of defendant no.3 stated that in terms of
judgment dated 1st October, 2018 of the Division Bench they were required to make an application
under Section 4 of the Partition Act and the said application was ready but had not been filed and
sought time therefor.

9. It was on 22nd October, 2018 enquired from the counsel for the legal heirs of defendant no.3, (i)
whether not the best mode for making valuation, even as per Section 4 of the Partition Act, is by
inter se bidding; and, (ii) whether not before invoking Section 4, it will also have to be determined
whether it applies. Though the counsel for legal heirs of defendant no.3 on that date contended that
the Division Bench in judgment dated 1st October, 2018 has found the legal heirs of defendant no.3
to be having such right but it was prima facie observed that the Division Bench was not concerned
with the question of applicability of Section 4 and was concerned only with the question of time for
invoking Section 4 and had merely granted liberty to the legal heirs of defendant no.3 to make an
offer. Be that as it may, on request, the proceedings were adjourned to today.

10. The legal heirs of defendant no.3 have filed an application under Section 4 of the Partition Act
and to which a reply has been filed by Ombir Creation Pvt. Ltd.

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 Girdhari Lal Batra vs Krishan Lal Batra & Ors. on 12 November, 2018

11. The counsel for the legal heirs of defendant no.3 and the counsel for Ombir Creation Pvt. Ltd.
have been heard.

12. Section 4 of the Partition Act is as under:

"4. Partition suit by transferee of share in dwelling-house. - (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 behalf. (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 last foregoing section."

(emphasis added)

13. Two questions, as aforesaid, for adjudication are, whether Section 4 of the Partition Act is
applicable and if so, what has to be the mode of valuation.

14. The counsel for the legal heirs of defendant no.3 has today again taken me through the order
dated 1st October, 2018 of the Division Bench to contend that the legal heirs of defendant no.3 have
been held to be entitled to such right. Attention has also been invited to Ghantesher Ghosh Vs.
Madan Mohan Ghosh (1996) 11 SCC 446 referred to by the Division Bench itself and in addition to
Dorab Cawasji Warden Vs. Coomi Sorab Warden (1990) 2 SCC 117.

15. The admitted position is, that in an arbitral proceeding between the four Batra brothers
aforesaid culminating in a consent award, partition was effected of the properties and businesses
hitherto before jointly owned by the said brothers. However, as far as the subject property was
concerned, though the four Batra brothers, who were parties to this suit, were held to have shares as
aforesaid in the property, but partition by metes and bound was not awarded.

16. It has thus been enquired from the counsel for the legal heirs of defendant no.3, whether not in
view of partition of shares vide the earlier arbitral award which was made rule of the Court, the
property ceased to be a dwelling house belonging to an undivided family within the meaning of
Section 4 of the Partition Act.

17. The contention of the counsel for the legal heirs of defendant no.3 is that it has been held in
Ghantesher Ghosh and Dorab Cawasji Warden supra that till the property is divided by metes and
bounds, a dwelling house remains the property of an undivided family, even after a decree for
partition.

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 Girdhari Lal Batra vs Krishan Lal Batra & Ors. on 12 November, 2018

18. In Ghantesher Ghosh supra it has been held that a Section 4 application could be filed even in
proceeding for execution of a partition decree.

19. I have enquired from the counsel for legal heirs of defendant no.3, whether not the factual
position in Ghantesher Ghosh supra was different, inasmuch as the proceedings for execution of the
decree for partition were pending. On the contrary, here there is a division of the family under the
earlier arbitral award made rule of the Court and which proceedings have attained finality. Merely
because the parties at that stage, while dividing by metes and bounds and / or otherwise of their
assets and thereby ceasing to be an undivided family, though divided the subject property also
between themselves and specified which of them will have a share and how much in the property,
did not do it by metes and bounds, would not in my opinion take away from the fact that the family
was no longer undivided and which is the phrase used in Section 4 supra.

20. Mention in this regard may be made of:-

(i) Malik Harkishan Singh Vs. Malik Partap Singh AIR 1938 PC 189 where, though
not in the context of Section 4 of the Partition Act but otherwise in the context of
partition, it was held that (i) it is by no means a rare thing that a person makes a
statement that he is a member of a joint family with his relative, but has reasons of
his own for making that statement;

(ii) it is not his statement, but his actings and dealings with the estate, which furnish
a true guide to the determination of the question of the jointness or otherwise; (iii)
even in the absence of proof of actual partition of the joint estate at any time, there
can be a partition of the joint property without an actual division of the property by
metes and bounds; (iv) partition consists in defining shares of the coparceners in the
joint property, and a physical division of the property is not necessary; (v) once the
shares are defined, there is a severance of the joint status; the parties may then make
a physical division of the property or they may decide to live together and enjoy the
property in common; but the property ceases to be joint immediately when the shares
are defined, and thenceforth the parties hold it as tenants in common; and, (vi) even
an agreement between the members of a joint family, whereby they appoint
arbitrators for dividing the joint family property among them, amounts to a
severance of the joint status of the family from the date of the agreement.

(ii) Nani Bai Vs. Gita Bai Kom Rama Gunge AIR 1958 SC 706 also holding that
partition in the Mitakshara sense may be only a severance of the joint status of the
members of the co-

parcenary, that is to say, what was once a joint title, has become a divided title though there has
been no division of any properties by metes and bounds; partition may also mean what ordinarily is
understood by partition amongst co-sharers who may not be members of a Hindu coparcenary.

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 Girdhari Lal Batra vs Krishan Lal Batra & Ors. on 12 November, 2018

(iii) Girijanandini Devi Vs. Bijendra Narain Choudhary AIR 1967 SC 1124 again holding (i) though in
an undivided family governed by the Mitakshara law, no individual member of the family, while it
remains undivided, can predicate that he has a certain definite share in the property of the family;
(ii) the rights of the coparceners are defined when there is partition;

(iii) partition consists in defining the shares of the coparceners in the joint property; actual division
of the property by metes and bounds is not necessary to constitute partition; once the shares are
defined, whether by agreement between the parties or otherwise, partition is complete; (iv) the
parties may thereafter choose to divide the property by metes and bounds, or may continue to live
together and enjoy the property in common as before; and, (v) if they live together, the mode of
enjoyment alone remains joint, but not the tenure of the property.

(iv) Kalyani Vs. Narayanan 1980 Supp SCC 298, reiterating (i) partition is a word of technical
import in Hindu law; (ii) partition in one sense is a severance of joint status and coparcener of a
coparcenary is entitled to claim it as a matter of his individual volition; (iii) a definite and
unequivocal indication of intention to separate from the family and enjoy his share in severalty
constitutes partition; (iv) such an unequivocal intention to separate brings about a disruption of
joint family status and such a separated member holds, from the time of disruption of joint family,
as a tenant-in-common;

(v) such partition has an impact on devolution of shares of such members; and, (vi) it is immaterial
whether it is accompanied or followed by division of properties by metes and bounds.

(v) Sushil Kumar Gupta Vs. Anil Kumar Gupta 2007 (98) DRJ 493 where this Court was concerned
with maintainability of a suit for permanent injunction restraining the defendants from selling their
share in the property. Finding, that the property was of HUF; that the HUF status was disrupted in
the year 1957 and in 1988 an Arbitral Award was published which directed the sale of the property
and further finding that different parties were in occupation of different portions of the property
though there was no sub-division by metes and bounds, it was held (i) that the maintainability of the
suit has to be considered with reference to Section 44 of the Transfer of Property Act, 1882 and
Section 4 of the Partition Act; (ii) that the joint character of the dwelling house no more remained
intact so as to invite the provisions of Section 44 of the Transfer of Property Act or Section 4 of the
Partition Act; (iii) that the object of these provisions is to protect a house from being invaded by
outsiders; ;(iv) though there was no division by metes and bounds, but the parties were in
possession of respective portions of the house and enjoying the same and it had already been held
that the property was incapable of partition by metes and bounds, in these circumstances the
provision of Section 44 of the Transfer of Property Act and Section 4 of the Partition Act have no
application; and, (v) that the suit was not maintainable. An appeal to the Division Bench against the
dicta aforesaid of this Court was dismissed vide judgment reported in MANU/DE/1444/2008,
expressly affirming the reasoning given by the Single Judge. SLP(C) No.22642/2008 preferred
against the dicta of the Division Bench was dismissed on 29th September, 2008.

(vi) Sunil Gupta Vs. Nargis Khanna 2011 (126) DRJ 97 noticing that though basic foundation of the
provisions of Section 44 of the Transfer of Property Act and Section 4 of the Partition Act still

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 Girdhari Lal Batra vs Krishan Lal Batra & Ors. on 12 November, 2018

continues to protect a dwelling-house of an undivided family, however, one cannot be oblivious to

the fact that the society has moved on; today in metropolitan cities and megapolises, such as the
capital of this country, traditions and conservative attitude of the ladies not coming into contact
with strangers is more or less a thing of the past; a family dwelling house is mostly non-existent
because people live in flats in high rises or in small buildings having three or four or about these
many number of flats.

21. I may in this context notice, that in the present case also, vide order dated 10th July, 2015
passing a preliminary decree of partition, it was held that the property was not divisible by metes
and bounds but there was possibility of one of the parties buying the share of the other or either of
the parties bringing buyer to purchase the share of the others and wherefor the suit was adjourned.
The said order dated 10 th July, 2015 has not been challenged by the defendant no.3 or his legal
heirs and has attained finality.

The severance of jointness is thus evident from the said order as well.

22. However, the need to adjudicate the said question is not felt as the counsel for Ombir Creation
Pvt. Ltd. states that vide order dated 10th July, 2015 passing a preliminary decree for partition,
benefit of Section 4 of the Partition Act was granted to the parties. Upon being unequivocally asked
whether according to Ombir Creation Pvt. Ltd., Section 4 of the Partition Act is applicable or not, the
counsel for Ombir Creation Pvt. Ltd. categorically states that it is applicable.

23. The next question is qua valuation.

24. The counsel for legal heirs of defendant no.3 states that the legal heirs of defendant no.3, along
with the application have filed a report of a Government Valuer valuing the property at
Rs.19,61,79,820/-. On enquiry, whether the said valuation is as per circle rates, the answer is in the
affirmative.

25. The counsel for the legal heirs of defendant no.3 further states that Ombir Creation Pvt. Ltd.
also, in November, 2016 purchased the shares of plaintiff, defendant no.1 and defendant no.2 at the
same rate.

26. It is yet further stated that the said valuation is supported also by sale deeds of January, 2018
and March, 2018 of other properties in the vicinity.

27. The counsel for Ombir Creation Pvt. Ltd. per contra states that the total value of the entire
property, ad-measuring 1400 sq. yds. at the rate of Rs.3.25 lacs per sq. mtr., is of Rs. 50.75 crores.

28. The counsel for Ombir Creation Pvt. Ltd. has today in Court also handed over a valuation report
dated 31st October, 2018, also of a Government Valuer, in support of the said valuation. The said
valuation report is taken on record.

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29. The counsel for Ombir Creation Pvt. Ltd. states that it is willing to buy the 2/9th share of the
legal heirs of the defendant no.3 at Rs.10.75 crores. It is yet further stated that if the legal heirs of
defendant no.3 want to buy the 7/9th share of the Ombir Creation Pvt. Ltd., Ombir Creation Pvt.
Ltd. is willing to sell the same for pro rata consideration.

30. While Ombir Creation Pvt. Ltd. is putting the value of 2/9th share of the legal heirs of defendant
no.3 at Rs.10.75 crores, the counsel for legal heirs of defendant no.3 puts the valuation of the 7/9 th
share of Ombir Creation Pvt. Ltd. at Rs.15,46,02,240/-.

31. Though the counsels, while addressing, have given the figures aforesaid but while correcting the
order it has been found (i) that the valuation report filed by the legal heirs of the defendant no.3
puts the value of the 7/9th share at Rs.15,46,02,240/- and as per my computation the total value of
the property at Rs.19,61,79,820/- and the value of the 2/9th share of the legal heirs of the defendant
no.3 would be Rs.4,15,77,580/-; and, (ii) the valuation report of Ombir Creation Pvt. Ltd. puts the
valuation of 7/9th share at Rs.30,22,29,815/- and the value of the 2/9th share of the legal heirs of
defendant no.3 at Rs.8,63,55,783/-. It is not understandable on what basis the counsels stated the
figures recorded above.

32. Though Ombir Creation Pvt. Ltd. is putting the value of the 2/9th share of the legal heirs of
defendant no.3 at Rs.8,63,55,789/- as against Rs.4,15,77,580/- put by the said legal heirs of the
defendant no.3 themselves but the counsel for legal heirs of defendant no.3 has rebutted the offer
aforesaid of the counsel for Ombir Creation Pvt. Ltd. by raising two arguments. Firstly, it is
contended that while the legal heirs of defendant no.3 have a right to buy the share of Ombir
Creation Pvt. Ltd. under Section 4 of the Partition Act, Ombir Creation Pvt. Ltd. has no such right to
buy the share of legal heirs of defendant no.3.

33. However, the counsel for the legal heirs of defendant no.3 agrees, that merely because they have
such a right, does not entitle them to buy the share at less than the market value. Once it is so, the
said factor is of no relevance in determination of price, which Section 4 of the Partition Act permits
to be determined by the Court "in such manner as it thinks fit". Moreover, Section 4 does not confer
an absolute right to buy. It only confers a right to buy at a valuation determined by the Court.

34. The next contention of the counsel for legal heirs of defendant no.3 is, that there is no basis of
valuation made by Ombir Creation Pvt. Ltd. It is argued that even the valuer€s report is based
merely on enquiries made from property dealers in the locality.

35. In my view, there could be no better basis of valuation than the price in the market which the
property fetches.

36. The counsel for the legal heirs of defendant no.3 has in this regard referred to Dr. Kishore Chand
Kapoor Vs. Dharam Pal Kapoor (1986) 4 SCC 505, stating that the Court in that case preferred the
valuation on the basis of sale deed rather than the value offered by one of the parties but has
clarified that finally a settlement was arrived at between the parties. The same thus does not
constitute a precedent.

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37. The right of the member of the family, being a shareholder, to buy the share of a transferee,
under Section 4 of the Partition Act is in the nature of right of pre-emption. Pre-emption has always
been held to be a very weak right. Supreme Court, in Bishan Singh Vs. Khazan Singh AIR 1958 SC
838 explained (i) that the courts have not looked upon a right of pre- emption with great favour,
presumably for the reason that it operates as a clog on the right of the owner to alienate his property
and the vendor and the vendee are therefore permitted to avoid accrual of the right of pre- emption
by all lawful means; (ii) that the right of pre-emption is not a right to the thing sold but a right to the
offer of a thing about to be sold; this right is called the primary or inherent right; the pre-emptor has
a secondary right or a remedial right to follow the thing sold; (iii) it is a right of substitution but not
of re-purchase; (iv) it is a right to acquire the whole of the property sold; and, (v) the right being a
very weak right, it can be defeated by all legitimate methods. It was so reiterated by a Five Judge
Bench of the Supreme Court in Radhakishan Laxminarayan Toshniwal Vs. Shridhar Ramchandra
Alshi AIR 1960 SC 1368, where it was further held that the Court should not go out of their way to
help the pre-emptor. Subsequently, in Atam Prakash Vs. State of Haryana (1986) 2 SCC 249 it was
held that the right of pre-emption based on consanguinity is a relic of the feudal past and is totally
inconsistent with the Constitutional scheme and with modern ideas. It was yet further held that the
reasons which justified its recognition, more than quarter of a century ago (now another half a
century has passed) namely, the preservation of the integrity of rural society, unity of family life and
the agnatic theory of succession are today totally irrelevant. In Mohd. Noor Vs. Mohd. Ibrahim
(1994) 5 SCC 562 yet again it was held that right of pre-emption acts as a clog on the right of the
owner to alienate his property and a person claiming pre-emption, therefore, has to squarely fall
within the four corners of the provisions contained therein.

38. The Legislature, as well as State Legislatures, in consonance with the above thoughts have
repealed various statutes/statutory provisions conferring the right of pre-emption. Mention in this
respect may also be made of repeal w.e.f. 9th September, 2005 of Section 23 of the Hindu
Succession Act,1956 preventing a female heir of a dwelling house from seeking partition thereof.

39. Seen in this light, Section 4 of the Partition Act is a vestige of the past which has remained on
statute books but is otherwise violative of the Constitutional right to property. It cannot be lost sight
of that the Partition Act itself is of a vintage nearly half a century prior to coming into force of the
Constitution of India. This Court, exercising ordinary original civil jurisdiction , is bound thereby,
but is however not bound to apply the same in a manner which amounts to compulsory acquisition
of property, of Ombir Creation Pvt. Ltd., by the legal heir of defendant no.3, at a price below the
market value thereof, in this era when even the Land Acquisition Act, 1894 has given way to Right to
Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act,
2013.

40. Judicial notice can be taken of the fact that there generally is a cash component in transactions
of real estate. Though ordinarily this Court is not to premise its findings on illegalities, even if
rampant but since Section 4 of the Partition Act permits valuation " in such manner" as this Court
thinks, I am of the view that I would be justified in considering the said aspect for the purpose of
valuation. For this reason, merely because Ombir Creation Pvt. Ltd. purchased the share of plaintiff,
defendant no.1 and defendant no.2 at the valuation as suggested by the counsel for legal heirs of

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 Girdhari Lal Batra vs Krishan Lal Batra & Ors. on 12 November, 2018

defendant no.3, does not prevent them from showing the market value to be more. In fact, if legal
heirs of defendant no.3 do not opt to purchase the 7/9th share of Ombir Creation Pvt. Ltd. at the
valuation proposed by Ombir Creation Pvt. Ltd., they will, at the appropriate stage have an option of
bring a buyer to buy the property for more and would not be bound by the said valuation.

41. It cannot be lost sight of, that the circle rates on which the report of valuation of the legal heirs of
defendant no.3 is premised, have been prescribed only for guidance of the registering officer for the
purposes of computation of stamp duty and vis-à-vis the said circle rates also it has been held by the
Division Bench of this Court in Manu Narang Vs. The Lt. Governor, Govt. of NCT of Delhi (2016)
226 DLT 1 and Amit Gupta Vs. Govt. of NCT of Delhi (2016) 229 DLT 385 that the same are only for
guidance and not determinative; if any purchaser contends that the value of the property is less than
the circle rate, then such purchaser has an opportunity to prove the same and cannot be compelled
to pay stamp duty at the circle rates even if the value shown in the deed is less and is proved to be a
genuine valuation.

42. As far as the reliance by the counsel for the legal heirs of defendant no.3 on Dr. Kishore Chand
Kapoor supra which is of 1986 vintage and pertaining to a dispute which commenced earlier is
concerned, mention may be made of Saradamani Kandappan Vs. S. Rajalakshmi (2011) 2 SCC 18
where, though in the context of „time being of an essence of a contract for specific performance of an
Agreement to Sell of immovable property€, it was held that principle that time is not of the essence
of contracts relating to immovable properties took shape in an era when market value of immovable
properties were stable and did not undergo any marked change even over a few years; as a
consequence, time for performance, stipulated in the agreement, was assumed to be not material;
the assumption was that grant of specific performance would not prejudice the vendor-defendant
financially as there would not be much difference in the market value of the property even if the
contract was performed after a few months; this principle made sense during the first half of the
twentieth century, when there was comparatively very little inflation in India; the third quarter of
the twentieth century saw a very slow but steady increase in prices; but a drastic change occurred
from the beginning of the last quarter of the twentieth century; there has been a galloping inflation
and prices of immovable properties have increased steeply, by leaps and bounds; market values of
properties are no longer stable or steady; the reality arising from this economic change cannot
continue to be ignored in deciding cases relating to specific performance; the steep increase in prices
is a circumstance which makes it inequitable to grant the relief of specific performance where the
purchaser does not take steps to complete the sale within the agreed period and the vendor has not
been responsible for any delay or non-performance; a purchaser can no longer take shelter under
the principle that time is not of essence in performance of contracts relating to immovable property,
to cover his delays, laches, breaches and non- readiness. It was held that the precedents from an era,
when high inflation was unknown, holding that time is not of the essence of the contract in regard to
immovable properties, may no longer apply, not because the principle laid down therein is unsound
or erroneous, but the circumstances that existed when the said principle was evolved, no longer
exist. Similarly, judgments determining valuation under Section 4 of the Partition Act on the basis of
contemporaneous sale deeds, of an era when such sale deed reflected the market price of the
property, cannot apply to the present when sale deeds, more often than not, do not reflect the
market price of the property and reflect only the circle rates of the property, to avoid paying higher

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 Girdhari Lal Batra vs Krishan Lal Batra & Ors. on 12 November, 2018

stamp duty.

43. The last contention of the counsel for the legal heirs of defendant no.3 is, that Ombir Creation
Pvt. Ltd. has inflated the valuation taking advantage of the fact that it has to buy only 2/9 th share of
legal heirs of defendant no.3 and on the contrary the legal heirs of defendant no.3 if exercise option
under Section 4 of the Partition Act will have to pay the price of 7/9th share.

44. That again cannot be a relevant factor for determining the valuation.

45. No other argument has been raised.

46. I therefore determine the total valuation of the property as per valuation report of Ombir
Creation Pvt. Ltd. and since applicability of Section 4 of the Partition Act has been admitted by
Ombir Creation Pvt. Ltd., the legal heirs of defendant no.3 would have option to buy 7/9 th share of
Ombir Creation Pvt. Ltd. at the said valuation.

47. The application is disposed of.

CS(OS) 650/2008

48. The counsel for legal heirs of defendant no.3 seeks adjournment of ten days to consider whether
the legal heirs of defendant no.3 are willing to buy the 7/9th share of Ombir Creation Pvt. Ltd. at the
said valuation and if so on what terms as to time and forfeiture of earnest money etc.

49. The counsel for Ombir Creation Pvt. Ltd. states that Ombir Creation Pvt. Ltd., if required to buy
the 2/9th share of the legal heirs of defendant no.3 at the aforesaid valuation, will pay the entire
consideration within ten days.

50. List on 28th November, 2018.

RAJIV SAHAI ENDLAW, J NOVEMBER 12, 2018 „gsr€/pp..

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