I.As. 7829/2019, 7830/2019, 8004/2019 in CS(OS) 3171/2014
1. The present suit for partition has been filed by M/s. Brijwasi Infratech Pvt. Ltd. (hereinafter ‘Plaintiff’) against Shri Vikas Jain (hereinafter ‘Defendant’). Most of the facts are undisputed and are as under:
2. The suit relates to property bearing No.3, Block-A1, Krishna Nagar, Delhi admeasuring 593.20 sq. yards (hereinafter ‘suit property’) in which 1/4th share belonged to Shri Tej Kumar Jain, who is the father of Shri Vikas Jain – Defendant. The devolution of 1/4th share in favour of Shri Tej Kumar Jain is not in dispute. As on date, the Plaintiff is undisputedly the owner of 3/4th share of the property having purchased it from the various owners who trace back their title to Shri Chunni Lal Sethi - who was the absolute owner of the property. The detailed facts have been captured in the preliminary decree dated 18th April, 2017 as also the judgment dated 31st October, 2018.
3. Insofar as the 1/4th share of Shri Tej Kumar Jain is concerned, the same was sold by him to his wife Smt. Shakuntala Jain vide sale deed dated 2nd January, 1991. Smt. Shakuntala Jain passed away on 30th October, 2000 leaving behind four sons and one daughter. One of the sons is Mr. Vikas Jain, the Defendant herein. The Defendant is, thus, one of the four sons of Shri Tej Kumar Jain, who owns 1/16th share of the property. All the remaining heirs of Shri Tej Kumar Jain have sold their respective shares to the Plaintiff.
4. The preliminary decree was passed in this matter on 18th April, 2017 in the following terms.
“A preliminary decree of partition is passed in favour of the plaintiff holding that in terms of the sale deed dated 23.04.2010, he is the owner of 3/4th share in property No.3, Block-A-1, Krishna Nagar, Delhi. Qua the balance 1/4th share in the property which is the subject matter of sale deed dated 29.10.2010, defendant is declared to be the owner of 1/16th share in the aforenoted 1/4th share. Decree-sheet be drawn accordingly.”
5. The Court had, after passing the preliminary decree, appointed a Local Commissioner to suggest the mode of partition of the suit property. The proceedings before the Local Commissioner did not result in any final understanding on the mode of partition.
6. The Defendant, thereafter, moved an application being I.A. 11528/2018 seeking rights of pre-emption under Section 4 of The Partition Act, 1893. This application was decided vide order dated 31st October, 2018 wherein it was held that the suit property is no longer a dwelling house. The application was disposed of in the following terms.
“12. Irrespective of the fact as to whether the shops exist separately from the suit property or not, the dwelling house and the character of dwelling house in effect means that members of the family ought to be residing in the same. A perusal of the respective shares of the parties itself proves that majority of the Defendant's family does not live in the suit property any longer. The same has been sold to the Plaintiff. A part of the property also having been tenanted, it loses its character of a dwelling house.
13. Insofar as the date when the valuation ought to be taken is concerned, Learned counsel for the Defendant relies upon Brahm Dev Narang v. Satyajeet Narang (supra) passed by a learned Single Judge of this Court. In the said judgment, it was held that the date of institution of the suit would be the relevant date for determining the market value. However, the judgment of the Supreme Court in Ghantesher (supra) has also been followed by a Division Bench and a Single Judge of the Calcutta High Court, which all hold that the date of the filing of the application under Section 4 is the relevant date.
14. Considering that a Learned Single Judge of this Court has recently opined that the judgment in Brahm Dev Narang (supra) does not lay down the correct law insofar as the dwelling house is concerned, the Learned Single Judge in Brahm Dev Narang having also relied upon a view of the Orissa High Court, there is a clear diversity in the view taken by various Courts. The Supreme Court, in Ghantesher Ghosh, (supra), however has considered that the filing of Section 4 application could be one of the relevant dates that can be considered for determining the market value of the property.
14. Either way, this Court is of the opinion that taking a date which is four years prior to the present time, when the property is to be sold, would not be beneficial for either side inasmuch as property prices in the last four years have changed drastically in Delhi. Each party is entitled his or her fair share of the market value as on date. In view of this, it is declared that the property shall be valued as on the date when the family members seeks the right of pre-emption i.e., date of application which is 12th July, 2018. An earlier date when the family member has not even exercised the right of preemption ought not to be considered, as the same would be disadvantageous to one party.
16. It is held that the Defendant would be entitled to either pay to the Plaintiff the value of the Plaintiff share or be paid the value of 1/16th of the suit property. In order to determine the market value of the property as on 12th July, 2018, Mr. Kameshwar Prasad Singh:(M:9953391925) is appointed as an Independent Valuer, who will take into consideration the circle rate and the prevalent market rates as also lease deeds that may have been executed in the neighbouring areas during this period and submit a valuation to this Court. The fee of the Valuer shall be Rs.25,000/- to be equally shared by both parties.
17. Accordingly, the suit is decreed in the following terms:
(i) The Plaintiff is held entitled to a sum equivalent of 3/4th + 3/4th of 1/4th share i.e. 15/16th share of the suit property and the Defendant is held to be entitled for 1/16th share of the suit property.
(ii) Upon the valuation being submitted by the Independent Valuer, either party can purchase the share of the other on the said valuation.
18. List on 20th December, 2018 for receiving the report of the valuer.
19. Decree sheet be drawn. Suit is disposed of. I.A. 11528/2018 is also disposed of in these terms.”
7. From the above order it is clear that this Court had after considering that the market value of the property would have to be ascertained, appointed a Court Valuer for valuing the suit property. This order was challenged by the Defendant. Vide order dated 10th April, 2019, the ld. Division Bench disposed of the appeal in the following terms.
“1. Challenge in this appeal is to the order dated 31st October, 2018 passed by a learned Single Judge of this Court on an application filed by the appellant/defendant under Section 4 of the Partition Act. The learned Single Judge has reached to a conclusion that Section 4 of the Partition Act would not apply as the property in question is not a dwelling unit.
2. After some hearing in the matter, learned counsel for the appellant submits that the appellant will approach the single Judge as he has already filed a valuation report and he wishes to buy the share of the respondent at the market price. Ms. Kapoor submits that in case the market price is offered, the respondent will have no objection to sell their share in the property to the appellant herein.
3. Heard. Having regard to the submission made by counsel for the appellant the appeal is dismissed as not pressed.
4. It would be open for the appellant to approach the Single Judge and make such proposal which may be considered by the Single Judge in accordance with law.
5. The appeal is not pressed and disposed of in the above terms.”
8. Pursuant to the order of the Division Bench further applications have been filed by the parties. On 26th March, 2019, this Court had noticed that there were enormous divergence in the valuations given by the Court Appointed Valuer and the Defendant. The Court Appointed Valuer was directed to file further documents to support his valuation, pursuant to which an additional valuation report dated 26th May, 2019 was filed by the Valuer. Arguments were heard thereafter in the I.As.
9. The following applications have been moved by the parties being –
i. I.A. No.7829/2019 seeking to place on record the market value of the suit property along with a valuation report;
ii. I.A.7830/2019 for placing on record the proposal for purchase of the property by the Defendant;
iii. I.A.8004/2019 by the Plaintiff seeking to place on record valuations for the suit property.
10. The submission of ld. counsel for the Plaintiff - Ms. Shalini Kapoor is that the valuation of the suit property must be on the basis of the market rate prevalent today. She submits on the basis of the printouts from various websites such as www.99acres.com, www.magicbricks.com etc., that the current market value of the suit property is more than Rs.3 lakhs per sq. yard. She also relies upon the valuation report filed by the Court Appointed Valuer. On the basis of various neighbouring properties and the values available online of various real estate websites, she submits that the market value of the suit property is more than Rs.17 crores. She further submits that the valuation given by the Defendant is not the proper market value and is much below the market rates for these properties. She further relies upon the valuation reports placed on record by Shri N.K. Lather and Mr. B.P. Singh. As per Mr. N. K. Lather, the total value of the suit property including the land value and the cost of construction is Rs.18.07 crores. As per Mr. B.P. Singh, the value of the property is approximately Rs.16.59 crores including the value of the land and the cost of construction. She thus, prays that her client be allowed to purchase the Defendant’s 1/16th share in the suit property as the Plaintiff is already the owner of 15/16th share in the suit property.
11. On the other hand, Mr. Thakur, ld. counsel on behalf of the Defendant has vehemently urged that in view of the Division Bench’s order, this Court would have to first determine the market price of the suit property and thereafter, the Defendant ought to be permitted to be given a chance to purchase the Plaintiff’s share. In his two applications, the Defendant has placed on record two valuation reports given by one Mr. S. N. Bansal and M.L. Agrawal, who are both Government approved Valuers. As per Mr. Bansal, the circle rate value of the property is Rs. 3.91 crores and the fair market value of the suit property is Rs. 4.22 crores. He submits that this valuation has been arrived at on the basis of comparative sale deeds of the properties in the neighbourhood. The Defendant further relies on a report of Shri M.L. Agrawal, according to which, the value of the suit property by comparable rate method is Rs. 3.91 crores and the fair market value is about Rs. 3.99 crores.
Analysis & Findings
12. The Court in this case has to determine the fair market value of the suit property as both the parties have given extremely disparate valuations. The valuation being given by the Defendant is almost 1/4th of what the Plaintiff is ascribing to the suit property. Under these circumstances, the Court has to analyse all the valuation reports which have been placed on record. The valuation given by the Defendant is of Shri S. N. Bansal and Mr. M. L. Aggarwal. Both of them claim to be Government approved Valuers.
Valuation Reports relied upon by the Defendant – By Dr. S. N. Bansal
13. The said report classifies the property as middle-class property in a residential area. It is described as a built-up residential property. The date of valuation is March, 2019 and the plot area is 593.20 sq. yards (496 sq. meters) i.e. approximately 600 sq. yards. It notes that there are four shops on the ground floor and the construction dates back to 1971-72. The property has a ground floor, first floor and second floor and servant quarters. The circle rate in this area is taken as Rs. 70,080/- per sq. meter. Thus, the total land value has been given as Rs. 3,47,75,097/-. The cost of construction is taken as Rs. 43,62,649/- and thus the total value as per the circle rate method is given as Rs. 3,91,37,746/-. The Valuer has then taken the comparative sale method wherein four other properties have been considered. On the basis of the sale value of these four properties, the market rate is taken to be 8% above the circle rate and accordingly, by comparative sale method. the fair market value that has been arrived at is Rs. 4,22,68,800/-.
Analysis of Mr. Bansal’s report:
14. Insofar as the circle rate is concerned, the same would not govern the fair market value of a property. For establishing the market value, Dr. Bansal has cited four sale deeds. A perusal of these sale deeds shows that they relate to small properties of which the biggest is of 38 sq. meters and the smallest is of 6.68 sq. meters of land. The sale consideration is between Rs. 5.70 lakhs to Rs. 40 lakhs. The first sale deed is for a residential property. The second sale deed relates to one shop. The third sale deed is for a third floor with roof rights. These properties, cannot be considered to be comparable properties as they are extremely small properties. None of these properties can be compared to the property in question, which is a commercial property having four shops on the ground floor admeasuring 500 sq. meters. The fundamental error that Dr. Bansal has made is to consider the property as a residential property whereas in fact, the report itself shows that the property has four shops on the ground floor.
Valuation report by Mr. M. L. Agrawal
15. This report also considers the property as one for residential use. This Valuer has observed that the property is in a dilapidated condition. As per the circle rate method, the Valuer has taken the value of the land and the construction as Rs. 3,91,37,747/-. As per the fair market value, the Valuer has given an approximate value of Rs. 4 crores. In order to arrive at this valuation, the Valuer has considered five sale deeds, to submit that the average rate per sq. meter is Rs. 70,613/-. The sale deeds relate to properties which range from 70 sq. meters to 163 sq. meters and are dated between 2018 to 2019.
Analysis of Mr. M.L. Agarwal’s report
16. A perusal of the sale deeds relied upon shows that the first one is of a 83 sq. meter plot which has been sold as per the circle rate for Rs. 21,85,000/-. It is clear that this sale deed is not a sale deed based on the market value. The second property is of 81 sq. meters which has again been sold at a value of Rs. 27,50,000/-, which is computed on the basis of the circle rate of the property. The same applies to the remaining two sale deeds, out of which one property of 73 sq. meters has been sold for Rs. 66 lakhs wherein the value of the land is as per the circle rate. In the 4th sale deed also, which relates to a property of 152 sq. meters, the sale consideration has been fixed at Rs. 40 lakhs, which is again based on the circle rate. Thus, all the four sale deeds relied upon by this Valuer are based on the circle rate of the properties. The fifth sale deed relating to a plot of 163 sq. meters has been sold at a sale consideration of Rs. 36 lakhs, which is again based only on the circle rate. Thus, all the five properties that have been relied upon by Shri M. L. Agrawal to determine the fair market value have all been valued only on the circle rate as described in the sale deeds itself. The circle rate in these sale deeds is taken as Rs.70,080/- per sq. meter.
Valuation Reports relied upon by the Plaintiff - by Shri N.K. Lather and B.P. Singh
17. The report of Shri N.K. Lather considers the property to be a commercial-cum-residential property. It is mentioned to be a freehold property. The valuation report notes that the area enjoys all civic amenities such as schools, hospitals, markets, etc. and that properties are not easily available in this area. The report states that from enquiries made from property dealers and real estate agents, the per sq. yard rate is between Rs. 2.90 lakhs - Rs. 3.10 lakhs. Thus, Rs. 3 lakhs is adopted as the per sq. yard rate. On the basis of this rate, the value of the land is fixed at Rs. 17,80,47,000/- and cost of construction at Rs. 27,34,604/-. The total market value of the property is given as Rs. 18,07,81,600/-. This report does not rely upon any comparable sale deeds.
18. The second report of Shri B. P. Singh also considers the property as commercial-cum-residential property which is freehold. On the basis of enquiries made from the local area, brokers and real estate agents, this Valuer considers Rs. 2.50 lakhs - Rs. 2.75 lakhs as the rate per sq. yard. Accordingly, the value of the land is given as Rs.16,32,09,750/-, cost of construction is taken as Rs. 27,34,604/- and the total value ascribed is Rs.16,59,44,400/-.
Analysis of Plaintiff’s valuation reports
19. Both these reports do not rely upon any comparable sale deeds and they are merely based on enquiries from brokers and real estate agents. However, both the Plaintiff’s valuers give valuations which are similar in nature.
20. The Plaintiff has also placed on record website printouts and photographs of the local area along with the Government of India notification, which states that the road called as Satnam Road where properties A-1 to E-4/30, Krishna Nagar fall, has been described as a commercial street. The property in the present case is A-1/3, which would fall within the said notification as being located on a commercial street. Thus, the notification dated 15th September, 2006 is relevant in order to determine the market value of this property.
Valuation Report of Court Appointed Valuer
21. The Court Appointed Valuer has given a detailed report again considering this to be a residential area. However, the Court Appointed Valuer has done a market survey with local residents and property dealers. As per the circle rate method, the Court Appointed Valuer has valued the suit property at Rs. 3,91,38,104/-. On the basis of market value, the Court Appointed Valuer has determined the value as Rs. 13,87,96,808/-. In this report, the Valuer has, however, placed photographs of the property on record, which clearly shows that there are shops on the ground floor. All the plans of the various floors have been placed on record. The Valuer has also placed on record two sale deeds given by Shri Vikas Jain to him. This valuation report has been objected to by the Defendant on the following grounds:
1) That no market survey has been done as there is no evidence of any market survey.
2) That no documentary evidence has been placed on record for arriving at the market value.
3) That the property cannot be valued on the basis of the rent that is being fetched in the area, as only four shops have been rented.
22. The Valuer was thereafter asked to file a supplementary report. The same has been filed as an additional valuation report. In this report, the Valuer has stated that there was no sale instance found by him of Block A-1 or Block A, Krishna Nagar, Delhi in the record of the Sub-Registrar’s Office. He has also given the details of all the property dealers whom he contacted to enquire about the market value. He also states that he made enquiries with the local residents in A-1 block. He further relies upon the portals such as www.99acres.com, www.nestoria.in, www.magicbricks.com. One of the properties he relies upon is an advertisement for sale of a floor, which is 200 sq. yards, which was being offered for Rs. 5 crores. He also mentions another property of 800 sq. feet, which is a two-floor building, by which he arrived at the conclusion that the per sq. yard rate was Rs. 4.27 lakhs. Similarly, on www.99acres.com, another property of 2097 sq. feet was analysed to be having a price of Rs. 4.29 lakhs per sq. yard. Thereafter, he also analysed various rent agreements, which are registered in the area relating to floors/shops in Krishna Nagar, which were fetching a very high rental amount. On the basis of all this evidence, the Court Appointed Valuer concludes as under:
“8. By Rental Method FAIR MARKET VALUE OF PROPERTY on the basis of proven/authentic Registered Rent Agreement is As Under [Refer Annexure-2A].
Rent Per Annum of Property =Rs,13,80,000.00
By Capitalized Rent – Value of Property = 14 x Rs,13,80,000.00 – 10% out-going towards taxes and maintance of building 14 x Rs,13,80,000.00 – Rs.1,73,88,000.00
9. As per current rent Value of Ground Floor of Four Floors Building At Present Fair Market Value is Rs.1,73,88,000.00 i.e. Built-Up Rate property with Construction Cost Building & Proportionate 25% share in underneath land is Rs.6,95,520.00 / Sq. Yards.
10. Note – Registered agreement Annexure-2B, C & D not analysed.
11. Considering all above points and so many other important factors, which I am unable to mention here, I have given my valuation with justification considering practical approach for valuation of Plot/Property Bearing No-3, Block=A-1, Krishna Nagar, Delhi.
12. AT PRESENT FAIR MARKET VALUE OF PROPERTY AS ON 12-07-2018 = RS.13,87,96,808.00
13. CIRCLE RATE VALUE OF PROPERTY AS ON 12-07-2018 = Rs.3,91,38,103.75 Say = 3,91,38,104.00
14. This is my additional report which may be read and considered accordingly in continuation of my previous valuation report dated 16.12.2018.”
23. A comprehensive analysis and perusal of all these reports shows that while the Defendant appears to be deliberately undervaluing the property, the Plaintiff’s Valuers do not have any supporting documents with their reports. The Court Appointed Valuer, on the other hand, has in his initial report along with the supplementary additional report, given enough evidence on record, both on the basis of real estate websites, lease deeds, rental values and from enquiries made from the local area, that the market value of the property is quite high considering that it has enormous potential for being rented out as also the location of the area. He has based his report on the basis of market survey and enquiries made from local real estate agents.
24. While determining the market value, the Court is not bound to consider only registered sale deeds. As per the Court Appointed Valuer there are no recent registered sale deeds in the same block of Krishna Nagar. Thus, the evidence in the form of website entries from leading real estate portals is a reasonable basis for determining the fair market value of a property.
25. The Plaintiff has also placed on record the Gazette notification dated 15th September, 2006 to show that the property is actually on a commercial street. Thus, the reports, which consider the property to be a residential property, cannot be considered as credible. Though, the Court Appointed Valuer has stated that the property is located in a residential area, he is conscious of the fact that various shops exist on the property. He has also considered the rent agreements for shops in the local locality. Thus, the property would have to be considered as a property capable of being put to a commercial use. As per the application filed by the Plaintiff, who is the owner of a substantial part of the property, the value ascribed is Rs. 3 lakhs per sq. yard.
26. Ld. Counsel for the Plaintiff relies on Punjab National Bank v. Sahujain Charitable Society and Ors., (2007) 7 SCC 83 wherein the Supreme Court has deemed it just to allow the party with a significant share in the property to purchase rights of other stakeholders with smaller shares even though they were offering a higher price for the property. The relevant portion of the said judgment reads as under:
“22. After all, our jurisdiction under Article 142 of the Constitution of India to do complete justice to the parties, in any event would enable us to make such a direction on the facts and in the circumstances of the case. We think that justice in the present litigation would be done by permitting the plaintiff, the larger shareholder in possession of a significant portion of the property, to purchase the rights of the other sharers rather than permitting an assignee from some of the sharers subsequent to the preliminary decree to purchase the property merely because it is in a position to offer a higher price and has come forward with a belated higher offer.”
On the other hand, the judgments cited on behalf of the Defendant lay down various principles for determining the valuation of the property. Especially, the principles laid down in Printers House Pvt. Ltd. v. Saiyadan and Ors., (1994) 2 SCC 133, i.e. that comparable sale method is to be favored by the Courts and factors such as the size, locality, potentiality etc. of the property in question are to be kept in mind. While comparable sale deeds could be one standard, none of the sale deeds placed on record by the Defendant can be held to be comparable. In G. Pankajakshi Amma and Ors. v. Mathai Mathew (Dead) through LRs and Anr., (2004) 12 SCC 83, the Court has held that unaccounted transactions cannot be considered for valuation of a property. There cannot be any doubt, as held in Amena Bibi & Ors. v. SK. Abdul Haque,
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AIR 1997 Cal 59, that the Court Commissioner’s report can be challenged by the parties and as held in Nilima Mishra v. Krishna Kumar Mishra, 2015 SCC OnLine Cal 560, depreciation is one of the factors that has to be considered. In Asha Rani v. NDMC & Ors., (2015) 221 DLT 730, it was held that a residential land can be put to commercial use. 27. None of these propositions can be doubted. In the present case, however, there are certain facts that need to be borne in mind: 1) That the Plaintiff is the owner of 15/16th share in the property. 2) That the Defendant owns only 1/16th share. 3) That none of the sale deeds filed by the Defendant’s Valuers are comparable. They all use only the circle rate to determine the sale consideration. 4) That the Plaintiff’s Valuers have only conducted enquiries and given the valuation. 5) The Court Appointed Valuer has used various realistic sources such as local brokers and real estate agents, leading websites as also the potential rent that can be fetched in the area on the basis of registered rent deeds. 28. On the basis of the above-mentioned facts and evidence on record, the Court determines that Rs. 3.75 lakhs per sq. yard is a fair market value of this property. The Plaintiff has suggested Rs. 3 lakhs, however, there is evidence which has been placed by the Court Appointed Valuer, which shows that the valuation could be as high as Rs. 4.29 lakhs per sq. yard. On this basis, it is held that Rs. 3.75 lakhs per sq. yard is the fair market value of the suit property. The area of the suit property is 593.20 sq. yards. Thus, the total value of the suit property is fixed at Rs. 22,24,50,000/-. In terms of the decision of the Supreme Court in PNB (supra), the Plaintiff being the owner of 1/15th share in the suit property and the Defendant clearly appearing unwilling to value the property at the fair market value, the Plaintiff would be held entitled to purchase the 1/16th share of the Defendant. The value of the 1/16th share of the Defendant in the property is determined at Rs. 1,39,03,125/-. 29. A final decree is accordingly passed, directing partition of the suit property by valuing the 1/16th share of the Defendant in the suit property at Rs.1.39 crores. The Defendant shall execute a sale deed in favour of the Plaintiff and sell his 1/16th share in the suit property for Rs.1.39 crores. All the expenses of stamp duty and other registration expenses etc. shall be borne by the Plaintiff. 30. The Defendant, at the time of execution of the sale deed, shall hand over vacant and peaceful possession of the areas in his occupation to the Plaintiff. The sale deed shall be executed within a period of 3 months from today. The suit and the applications are disposed of. Decree sheet be drawn up in the above terms.