Partition Of Property By Metes & Bounds Not Permissible In Chandigarh; Only Solution Sale By Way Of Auction : Supreme Court

The Bench of Justices CT Ravikumar and Rajesh Bindal reasoned that even though the co-sharer owned only 1%, he had possession of a substantial part of the concerned property.

“Since it is the admitted case of the defendant No.3(a) himself that he had rented out a portion of the property and collected rent therefrom, there was no good reason for the High Court to have absolved him from rendition of accounts.,” the Bench added.

With respect to another set of five co-sharers who claimed to have 15% shares in the property, the Court noted that even though they had not let out the property on rent, they were still carrying business. Had their business been carried on in rented premises, they would have certainly paid some rent., the Court added.

However, the Court observed that their case was contingent on the extent of land they possessed. This means that if they possess the extent of their share, they may not have to contribute any amount to the common funds. Conversely, if they possess more than their share, then they will have to either contribute for the entire possession or just for the one that is beyond their share. Accordingly, they can claim their share from the common funds.

“However, such an option will have to be exercised by the defendant Nos.15 to 19 before assessment of the rent, to be paid by the aforesaid defendants and not after the rent has been assessed by the Trial Court.,” the Court said.

The genesis of the present dispute stemmed from a suit seeking partition of the concerned property. However, considering that there cannot be a partition of property by metes and bounds as per Chandigarh (Sale of Sites and Buildings) Rules, 1960, the Trial Court directed for the auction. The Trial Court passed a preliminary decree, asking all the co-sharers of the suit property to render accounts.

This was challenged before the High Court, and it absolved the co-sharers in the property having a 16% share (who had challenged the Trial Court's order) from rendering their accounts. Against this backdrop, the matter reached the Top Court.

It may be noted that the co-sharer claimed to receive only ₹5,800/—per month as rent. The Court noted that the appointed receiver had also informed that there were no tenants as claimed.

“It was also noticed that the plaintiff was ready to pay ₹1,50,000/- per month as rent for the portion in possession of defendant No.3(a)-S.C. Bhalla. Hence, it would not be possible that he would rent out the same @ ₹5,800/- per month. Be that as it may, this matter will require examination by the Trial Court in the course of passing the final decree.,” the Court marked.

As far as other co-sharers are concerned, the Court noted that they were relieved from rendering accounts on the ground that they are in possession of the suit property to the extent of their ownership. However, the Court opined that this fact is still need to be examined by an authority.

“The fact remains that the defendant Nos.15 to 19 are carrying on their own business in the property in question in their possession and earning therefrom. Had their business been carried on in a rented premises, they would have certainly paid some rent.,” the Court said.

In view of this, the Court directed the defendant to render accounts and added:

“It also clarified that It is further clarified that after the sale of the property if any of the co-sharers fail to contribute any amount to the common kitty for distribution amongst all the co-sharers as determined by the Trial Court, the distribution of the amount so collected after the sale of the property shall be reduced to that extent from the share of that co-sharer.”

Given that the suit of partition is pending before the Court since 2005 and the suit is still pending at the stage of passing of preliminary decree, the Court directed the Trial Court to dispose of the matter within nine months.

Case Details: RAJINDER KAUR v. GURBHAJAN KAUR., Arising out of S.L.P.(C) Nos. 12198-12199 of 2018

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