1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3114 OF 2005 IN SUIT NO.6283 OF 1999 Pawankumar Pratapsingh Thakur ...Plaintiff Vs. Smt. Usha Singh & Ors. ...Defendants Mr.R.D.Sawant for the Plaintiff Mr.R.R. Mishra for the Defendants CORAM: SMT.ROSHAN DALVI, J. DATED: 17 TH OCTOBER, 2008 P.C. 1. The suit was initially between two brothers. The Defendant expired. His heirs have been brought on record. They represent the Defendant's interest. The present Defendants shall be referred to as “the Defendant”. 2. The relationship between the parties is admitted. 3. The suit premises is a building consisting of ground plus 4 floors. It is a tenanted building having 47 tenants. The parties reside in the 4th floor. Each party is in possession of ½ of the 4 th floor premises. The building has admittedly 2 been settled upon Trust under the Trust Deed dated 10th July, 1940 by the grandfather of the parties, one Jalim Singh. 4. The suit property is admitted. The execution of the Trust Deed is admitted. The relationship between the parties is admitted. Their lineage is also admitted. It is also admitted that the Plaintiff and the Defendant have an equal right in the suit premises. Both the parties have relied upon the Trust Deed for claiming rights thereunder. 5. Under clause 1(e) of the Trust Deed after the death of the settlor his widow Ratankaur and his son Pratapsingh were to use the income, profits etc of the suit property for maintenance and residence of his widow and maintenance and education of his son. Under clause 1(e) of the Trust Deed, the property was to be equally divided between the sons of Pratapsingh and transferred and conveyed in equal share to each of his sons. Pratapsingh had 2 sons, the Plaintiff and the original Defendant. 6. The Plaintiff's suit for partition is based upon the express provisions in the Trust Deed for division of the property in two equal shares. 3 7. The Defendant refuses to partition the property on the ground that the partition is prohibited in the Trust Deed itself despite the clause relating to division of trust property in equal shares between the sons of Pratapsingh. The Defendant has relied upon the last portion of clause 1(e) of the Trust Deed in this behalf. Under the said clause the Trustees are bound to convert all the trust properties into money at the time of division amongst the beneficiaries, if the beneficiaries so require. It is only thereupon that the beneficiaries would not be entitled to insist upon the partition of the trust property by metes and bounds. This would apply only if the trust property is valued (converted into money) and the share of the beneficiaries is paid off. Hence the Defendant must value the suit property and pay off the Plaintiff's share based upon his own interpretation of the Trust Deed. If the Plaintiff is not paid off his share upon valuation the trust property, the suit property can be divided into two equal shares. The Defendant offers to pay off the Plaintiff's half share. The Defendant has offered Rs.6.50 lakhs to the Plaintiff as his ½ share. That valuation is seen to be ridiculously low. 8. The Plaintiff has made out a valuation of the suit property considering the prices mentioned in the ready 4 reckoner issued by the Stamp Office to be accepted as a reasonable base value with further deductions as per the rules therein. The valuation tendered by the Plaintiff, a copy of which is given to the Defendant's Advocate, is required to be considered. 9. The ground floor as well as the first 3 floors are tenanted. The ground floor and the 1st floor is used as commercial premises. The 2nd and the 3 rd floor are used as residential premises. The 4th floor is equally occupied by the family of the Plaintiff and the Defendant. The valuation of the entire property is required to be done. Each floor is 194.05 sq.mtrs in area. 10. For the valuation of the suit property the value shown in the ready reckoner is considered. 11. The valuation of the 4th floor, which is for residential use, is shown to be Rs.84,400/- per sq. mtr. The Plaintiff has considered 80% of this value as the building is not having a lift. The Plaintiff has further allowed depreciation of 30% as the building is old. These allowances have also been in terms of the rules mentioned in the ready- reckoner. The Plaintiff has arrived at the present total market value of the 4 th floor of the suit premises at Rs.90,71,580 /- . The 5 Plaintiff's 1/2 share in the 4th floor is Rs.45,35,790 /- . 12. The value of the each of the 2nd and 3 rd floors would the same. Since these floors are tenanted, 2/3 rd of the above value would be deducted. Hence these floors would be valued at Rs.30,23,860/- each i.e., a total of Rs.60,47,720/- . The Plaintiff's half share in the 3 rd and 4 th floors would be Rs.30,23,860 /- . 13. The value of the ground and 1st floors would be at commercial rate mentioned in Ready Reckoner. The Commercial premises is valued at Rs.1,84,700 /- per sq. mtr. There is no deduction required to be made for want of a lift in case of commercial premises on the ground floor. Depreciation of 30% is to be allowed as the building is old. On the value of Rs.61,566/- per sq.mtr., the ground floor would be valued at Rs.2,39,07,196 /- . The Plaintiff's half share in the ground floor would be Rs.1,19,53,598/- . 14. The valuation of the commercial premises on the 1st floor would be further deducted by 20% as the building has no lift. Hence the valuation of the 1st floor would be Rs.47,81,438 /- . The Plaintiff's half share in the 1st floor would be Rs.23,90,719 /- . 6 15. The total value of the entire suit property is Rs.4,38,07,934 /- . Therefore, the equal half share of the Plaintiff in the entire suit property is Rs.2,19,03,967 /- . Either party can purchase the half share of the other brother and his family by payment, whereupon the suit property would not be partitioned by metes and bounds. If such payment is not made, the property shall have to be divided in 2 equal parts as per the admitted shares of the parties. That share is to be ascertained and divided as a half equal share for both the Plaintiff and the Defendants. 16. The Plaintiff has also calculated the value of the ground plus 3 upper storeys which are tenanted upon the rents paid by the tenants in respect thereof. The said mode of valuation of tenanted properties is for the purpose of payment of Court fees as per the judgment in the case of Shri krishna Bhau Parab & Ors. Vs. Dr. M.S. Roshan S. Boyce, 1995(1) BCR, 429 , which is followed and considered by the Full Bench of the Bombay High Court in the case of Prem Ratan Vs. Lalit Kumar, AIR, 1988 Bom. 264 . Such is not the correct mode of valuation of the equal half share of the Plaintiff in his grandfather's property settled upon Trust. The market value of premises is alone to be determined. The valuation of tenanted premises is usually taken to be 2/3 rd of the valuation of ownership premises. This is a fact of which 7 judicial notice is required to be taken. If the half equal value of the suit property is not paid to the Plaintiff, the suit property shall have to be divided by metes and bounds. Such division shall be made by dividing the property vertically in two equal parts. 17. The Plaintiff has produced the plan of the entire building. The plan shows the tenements on all the floors of the building. The Plaintiff has produced the list of all the tenants. There are admittedly 47 tenants on the 1st, 2 nd and 3 rd floors of the suit building. The 4th floor is equally divided and in possession of the Plaintiff and the Defendant. Since the ground and the 1st floor are commercial premises and the 2 nd and 3 rd floor are residential premises tenanted to 47 tenants, the Plaintiff shall be entitled to 23 of those tenements (½ the number of tenaments on each floor less one) aside from the 1/2 share in the 4th floor, which is in his occupation. 18. In a suit for partition once these material facts are admitted a preliminary decree of partition is required to be passed as under provisions of Order XX Rule 18 of the C.P.C r.w. Section 4 of the Partition Act declaring the rights/of the parties and passing directions in respect of the shares. In fact, as the shares of the Plaintiffs and the Defendants are 8 admitted, a judgment on admission would also be required to be forthwith passed under the provision of Order XII Rule 6 of the C.P.C. 19. The 1/2 share of the Plaintiff is required to be ascertained and determined. Accordingly preliminary decree with regard to the 1/2 share of the Plaintiff is required to be passed. Hence the following order:- (a) The preliminary decree for partition of the suit property is passed as follows: 1. The Defendant shall pay off the Plaintiff his equal ½ share in the suit property valued at Rs.2,19,03,967/- , within 6 months from today, failing which the suit property shall be divided vertically in two equal parts dividing the tenements (tenancies) between the Plaintiff and the Defendant as aforesaid. 2. One part of the suit property shall be partitioned and given to the Defendant. The other part of the property shall be partitioned and given to the Plaintiff. 3. The Plaintiff shall have the property records 9 altered accordingly. 4. The parties shall also be assessed equally upon division of the property under separate assessment bills issued by the Municipality. 5. The Commissioner for Taking Accounts shall divide the property in terms of the above. 6. Court Receiver has already been appointed Receiver in respect of the suit property. Court Receiver shall continue pending the actual division of the suit property or payment to the Plaintiff of his ½ equal share in the suit property. 7. The Defendants shall not create any third party rights, or transfer any tenancies or otherwise sell, encumber or part with possession of any part of the suit property until the actual division of the suit property is made by the Commissioner for taking accounts or until the Plaintiff is paid is ½ equal share in the suit property. 8. Parties shall be at liberty to place the suit on 10 board for final decree after the property is partitioned as directed above. 9. This order is stayed till 31 st Jan. 2009. (SMT. ROSHAN DALVI, J.)