Disposed

Dr. Mukesh Kesarwani and Another v. Devi Shankar Shukla

Allahabad HC18 Nov 2025A227/6609/2025

Case brief

AI extract

What is this about?

In an Article 227 petition, the Allahabad High Court held that the trial court did not lose jurisdiction due to a brief delay in issuing the order, as the respondent-পurchaser had shown willingness to pay. The Court directed that the High Court's order in the second appeal be treated as a decree and executed under Order XXI Rule 34 CPC within six months.

What did the court decide?

The petition was disposed of with directions to appear before the trial court to execute the sale deed under Order XXI Rule 34 CPC within six months, treating the High Court's order as a decree.

Dr. Mukesh Kesarwani and Another vs Devi Shankar Shukla — Partition | Allahabad HC (2025)

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HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW

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MATTERS UNDER ARTICLE 227 No. - 6609 of 2025

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Dr. Mukesh Kesarwani And Another

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.....Petitioner(s)

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	Versus
Devi Shankar Shukla	.....Responde
Counsel for Petitioner(s) Counsel for Respondent(s)	: Virendra Mishra, Shradha Mishra : Shreyash Shukla, Utkarsh Srivastava

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.....Respondent(s)

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Court No. - 19

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HON'BLE RAM MANOHAR NARAYAN MISHRA, J.

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The supplementary affidavit filed by the petitioner is taken on record.

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Heard Sri Virendra Mishra, learned counsel for the petitioner and Sri Pratish Kumar Senior Advocate assisted by Sri Utkarsh Srivastava, learned counsel for the respondents.

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By way of this petition under section 227 of the Constitution of India, the petitioner seeks the following relief:-

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(i) To set aside the impugned order dated 17.09.2025 passed by the learned Rivisional Court in Revision No. 192 of 2024 and the order dated 12/09/2024 passed by the learned trial court in Regular Suit No. 436 of 2009.

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(ii) To issue such other order or direction, which this honorable court deems fit and proper in the circumstances of the case.

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Learned counsel for the petitioner submits that the original suit number 1733 of 2003 (old number Original Suit No. 436 of 2009) and Original Suit No. 4 of 2007 were consolidated by the learned Civil Judge Senior Division, Malihabad, Lucknow, whereby the original Suit no. 4 of 2007 filed by Devi Shankar Shukla against Vijay Shankar Shukla and others, where the present petitioners were also co-defendant, was partly decreed and the plaintiffs were declared as owner of the House number, old number 19 and 50/8 ( New No. 50/110) situated at Jai Narayan Road, P.S. Husainganj, Kaiserbagh, Lucknow of its 1/4 legal share in respect of the house. The suit was dismissed. The other Suit No. 436 of 2009 was decreed which was filed by the present petitioners and they were declared as owners of 3/4th portion of the said house. Defendants were found to be entitled to get their 3/4 share partitioned in the said house, The counter-claim set up by Devi Shankar Shukla was dismissed and the order was passed to prepare a preliminary decree in respect of Original Suit number 436 of 2009. The plaintiffs of Original Suit No. 192 of 2004, who were defendants in

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Original Suit No.436 of 2009 which was decreed filed two regular Civil Appeals, as Civil Appeal Nos. 62/2016 and 63/2016 against the judgment and order passed by the learned Civil Judge (S.D.) Malihabad, Lucknow. The Civil Appeal No. 63 of 2016 (Devi Shankar Shukla versus Mukesh Kesharwani and others) was allowed by the judgment and order dated 14.02.2017 and judgment and order passed by the Civil Judge (S.D.) Malihabad, Lucknow in Original Suit No. 436 of 2007 was set aside. The respondents- Mukesh Kesharwani and others, were directed to receive Rs. 9,00,000/-from the appellants and to execute a sale deed in respect of of 3/4 share of the house in question in favor of the appellant, Devi Shankar Shukla, in three months. The Regular Civil Appeal No. 62 of 2016 was dismissed as not pressed, therefore, the judgment and order passed by the Learned Civil Judge was affirmed in respect of Civil Suit No. 4 of 2007.Resultantly counter claimed filed by the respondent was decreed.

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Feeling aggrieved by the impugned appellate judgments, the present petitioner filed Second appeal before this court, bearing Second Appeal No. 202 of 2017 (Yogesh Kesharwani and Others versus Devi Shankar Shukla).

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This court decided the second appeal by judgment and order dated 17.02.2022, wherein it is stated that the issue involved in the instant second appeal involved the scope and ambit of Section 4 of the Partition Act 1893.

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He next submitted that this court while deciding the second appeal, observed in paragraphs 89 as under:-

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"89. The Trial Court considering the evidence as well as the valuation report submitted by the valuer so appointed by it shall give his finding on the valuation also factoring for reasonable variation in the rise/fall in the prices of the property in light of the evidence on record in this regard. The entire exercise shall be completed within a period of six months from the date a certified copy of the judgment is placed before the Court concerned. Upon the valuation so determined, the respondent herein (the co-sharer) be first allowed to purchase the share of the plaintiffs within a reasonable period of four months thereafter and in case if he fails to do so, the parties shall be free to move the Court for getting their shares separated as per law provided there is no other legal impediment in doing so. Thus the substantial questions of law as framed at Serial No. (i) stands answered.

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He next submitted that the learned court of first instance ( Additional JCC Court No. 19) acting in compliance of the order passed by this court in the second appeal, passed an order on application A-500 on a valuer report on 07.05.2024, whereby the valuer's report was accepted. In it, the valuer had quantified the value of the property proposed to be purchased by the present respondents as Rs. 9,18,000/- and on objection of the plaintiff- Mukesh Kesharwani and another in Original Suit number 436 of 2009, (New No. 1773 of 2023), this valuation was done in terms of the value of

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the property as existed in December 2009 i.e. at the time of filing of the suit.

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Learned counsel for the petitioner next submits that Additional JCC passed the impugned order dated 12.09.2014 on application 15-C filed by the respondents wherein it was contended by the plaintiff petitioner vehemently that as there is no decree in existence, no execution related to execution can be called for. However, the court below has observed that this fact would not create an impediment in compliance of the order of this court. Defendants have stated before the court that they are ready to pay sale-consideration and get the deed executed in their favor, which is obvious in the order of the High Court itself.

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The learned court below has directed the plaintiffs/petitioners to appear before the Registry office on 18.9.2009 at 12:00 hrs. in the day, and after receiving Rs.9,18, 800/- from the defendants, execute the sale deed in favor of the defendants (present respondents). It also stated in the said order that a four months' period has been prescribed by this court for the execution of the sale deed, but in this period, the plaintiffs has not executed the sale deed for which he himself is responsible.

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Learned counsel for the petitioners further submitted that the petitioner had filed Regular suit no. 439 of 2009 for the portion of the aforesaid house by metes and bounds against the respondent/defendants. In the aforesaid the defendants/respondents appeared and filed a written statement with counter-claim and an application under Section 4 of the Partition Act, inter alia, stating therein that as the house is a dwelling house and as per law if a stranger purchases the house and files a suit for partition, he has a right to purchase the shares in the house of the petitioner by paying sale- consideration of Rs.9,00,000/- only and not more, as determined by the court.

¶29

The learned trial court, after appreciating the pleadings of the parties, including the counter-claim and evidence, decreed the suit filed by the petitioners/plaintiffs on 20.01.2016 holding that they are lawful owners of 3/4 share in the house and are entitled to get the same by decree of partition. As the defendants declined to purchase their share by a sale-consideration of Rs. 80,00,000/- determined by the court. The learned first appellate court, without legally applying its mind to the facts of the case, set aside the decree passed by the learned trial court.

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He has next submitted that as directed by this court, after remand, the learned trial court, appointed Sri Sanjay Saxena (an architect) as valuer and required him to submit a report regarding the valuation of the 3/4 share of the house. The said valuer did not visit the spot and submitted that valuation of 3/4 share of the petitioners has come to Rs. 9,18,800 in December 2009.

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The petitioners have filed an objection against the valuation report and stated that it was not correct, but the learned trial court accepted the report, ignoring the objection

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filed by the petitioners. The respondents had time to purchase 3/4 share of the house upto 06.09.2024, but he failed to do so with oblique motive and mala fide intention, just to overcome the period fixed by this Court and after expiry of the said period, the respondents moved an application C- 57 before the court below, seeking a direction to the petitioner to execute the sale deed of 3/4 share of the property in question. However, the respondent neither submitted demand draft of the proposed sale deed nor disclosed the manner and mode of payment of consideration. Further, the respondent had neither tendered the sale consideration payable to the petitioner nor provided proof of his ability to pay the sale consideration. The petitioner had submitted an oral objection against the application C-57, wherein he contended that the decree had already been set aside in the Second Appeal number 202 of 2017, thus, without decree passed in lawful manner, execution was not possible. However, the court below, without considering the objection filed by the petitioners in a proper perspective, overruled the same and passed the impugned order dated 12.09.2024. He next submitted that the petitioners filed Civil Appeal No. 192 of 2024 against the impugned order dated 18.09.2024 passed by the learned trial court on various grounds but the same was dismissed on 17.09.2025 in a cursory manner.

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The present petition has been filed wherein orders of both the courts below orders are assailed and challenged.

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The learned trial court illegally put the blame on the petitioner wherein the respondents have never approached them to accept the sale consideration of Rs.9,18,800/- and to execute the sale deed in his favor, which is a condition precedent. This itself vitiates the orders under challenge in view of the expiry of four months' period fixed by this Court in the order dated 17.02.2022. Learned trial court in absence of extension of time by this court, became functus officio and lost jurisdiction to pass the impugned order dated 12.09.2024. Both the courts below, while passing the orders under challenge, failed to appreciate the settled principles of law that once the period of limitation running it cannot be stopped by filing an application and representation. Both the courts below, while passing the order under challenge, have failed to appreciate that in absence of a valid decree, no direction for execution of the sale deed can be issued to the petitioners after the expiry of four months. Moreover, equity lies in favor of the petitioners and both the orders under challenge are liable to be set aside. A decree of execution of the deed can only be executed in terms of the Order 21 Rule 34 C.P.C. and for that reason a preliminary decree ought to have been drawn in terms of the orders of this Court in second appeal and only thereafter execution of sale-deed could be carried out.

¶37

Learned counsel for the petitioners has placed reliance on judgements of Hon'ble Apex Court in the case of Rajbir Vs. Suraj Bhan and another reported in (2022) 14 SCC 609 and C.S. Venkatesh Vs. A.S.C. Murthy reported in (2020) 3 SCC 280.

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Per contra, learned counsel for the respondents submits that there is no lapse on

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the part of the respondents in payment of the sale-consideration of Rupees 9,18,000/to the petitioners as directed by the trial court inasmuch as a demand draft in this regard has been filed before the trial court on 01.03.2025. The respondents are still ready to pay the self-consideration to the petitioners in the manner received the same. This is wrong to contend that the period of four months expired. The learned trial court has issued a direction to the petitioners after the expiry of four-month period as stipulated in the order of this court.

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Learned counsel further submitted that the judgment of this court in second appeal, it is clear that the period of four months will have to be calculated not from the date of the judgment but from the date of the determination of the valuation of share of the plaintiff. In this way, the order is well within the limitation prescribed in the impugned judgment of this Court. He also submitted that there was no occasion for the learned trial court to prepare a preliminary decree as direction in this regard given in the judgment in the second appeal by this court on 17.02.2022 is unambiguous despite the fact that the judgment and order passed by the both courts below were set aside in the second appeal. This court has clarified that so far as the finding regarding the share of the respective parties as well as the house in question being a family dwelling house is concerned, they have not been disturbed. The only direction that was issued to the trial court by this court that the court shall consider the issue regarding the valuation of the share of the appellants in light of the observations made in this judgment. He next submitted that the trial court could not travel beyond the scope of the direction issued by this Court. This Court has not interfered so far as findings recorded the share of respective parties as well as the house in question being a dwelling house is concerned.

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Learned counsel for the respondents has placed reliance of the Hon'ble Apex Court in the case of Kattu Kandi Edathil Krishnan and another Vs. Kattukandi Edathil Valsan and others reported in (2022) 16 SCC 71 and S.Sai Reddy Vs. S. Narayana Reddy and others reported in (1991) 3 SCC 647.

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I have gone through the said judicial precedents in the light and facts and circumstances of the case and the submission made by learned counsel for the parties.

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From the perusal of judgment of this Court in Second Appeal No. 202 of 2017, the facts pertinent to the present matter may be summarized as under:-

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"5 Devi Shankar Shukla (the respondent herein and referred to as the co-sharer) instituted a suit bearing No. 4 of 2007 before the Court of Civil Judge, Senior Division, Lucknow, seeking a decree of declaration against the following defendants namely Vijay Shankar Shukla, Ravi Shankar Shukla, Smt. Pratibha Shukla, Dr. Kripa Shankar Shukla and subsequently by amendment Sri Satya Prakash Nigam (transferee) was also impleaded as a defendant.

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6. It was the case of the respondent herein that one Smt. Sadhu Devi wife of late Sri Sarjudeen Shukla was the exclusive owner in possession of the house bearing old house No. 19 and 15/8 and New Nagar Nigam House No. 50/110 situate at Jai Narayan Road, Hussainganj, Lucknow having purchased the said house by means of registered sale deed dated 13.10.1917.

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7. It was also pleaded that Sarju Deen Shukla had two sons from his first wife namely Shyam Sunder Shukla and Shyam Manohar Shukla while from his second wife namely Smt. Sadhu Devi, he had a son namely Gaya Shankar Shukla.

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8. Sri Shyam Manohar Shukla died during the lifetime of Sri Shyam Sunder Shukla. The wife of Shyam Manohar Shukla namely Smt. Tulsa Devi and Shyam Sunder Shukla both in their lifetime, on 14.11.1931, had relinquished their shares in favour of Smt. Sadhu Devi in respect of the property in question.

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9. Thus, Smt. Sadhu Devi was the exclusive owner in possession of the property in question and after her death, the father of the respondent herein namely Gaya Shanker Shukla became its exclusive owner. The respondent herein was born in the said property and continued to live therein with his parents. His father expired on 15.11.1992 and his mother too expired on 16.10.2005, leaving behind the respondent and three other siblings and thus the respondent claimed 1/4th share in the property in question.

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10. It was also pleaded that one of the brothers of the respondent namely Sri Anoop Shankar Shukla expired on 11.05.2004 and his share devolved on his wife namely Smt. Pratibha Shukla. It was also pleaded that though by means of the registered deed dated 14.11.1931. Smt. Tulsa Devi and Shyam Chandra Shukla had relinquished their shares in favour of Smt. Sadhu Devi but later it came to light (through a sale deed executed by the defendants nos. 1, 2 and 3 of Suit No. 4 of 2007 in favour of the defendant no. 5) that Smt. Sadhu Devi had executed a gift deed in favour of the defendant no. 4 Dr. Kripa Shankar Shukla and thus, the respondent herein who was the plaintiff of the Regular Suit No. 4 of 2007 sought a declaration that the gift deed dated 14.11.1931 be declared as null and void.

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11. During the pendency of the aforesaid suit, the original defendants nos. 1, 2 and 3 sold their share in favour of Satya Prakash Nigam. Thus, the respondent herein moved an application under Order 1 Rule 10 C.P.C. and impleaded Sri Satya Prakash Nigam as the defendant no. 5. During the pendency of the suit, the defendant no. 5 namely Satya Prakash Nigam further transferred the property in favour of Sri Yogesh Kesarwani and Dr. Mukesh Kesarwani (hereinafter referred to as appellants/ the stranger purchasers).

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12. Dr. Mukesh Kesarwani and Sri Yogesh Kesarwani (plaintiffs of Regular Suit No. 436 of 2009 instituted a suit for partition seeking separation of their 3/4th share in

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House No. 50/8, Jai Narayan Road, Hussainganj, Lucknow.

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13. Both the suits related to the property in question between the same parties and their successors in interest, hence, they were consolidated by the Court of Civil Judge, Senior Division, Lucknow and R.S. No. 4 of 2007 was made the leading case.

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14. In the suit for partition instituted by the stranger purchasers numbered as R.S. No. 436 of 2009, the defendant Devi Shankar Shukla (respondent herein) while filing his written statement also set up a counter claim wherein he raised the plea that since he was the co-sharer, hence, in exercise of his right conferred under Section 4 of the Partition Act, 1893 he sought to purchase the 3/4th share of the stranger purchasers at the price at which the stranger purchasers had purchased the property from Sri Satya Prakash Nigam or at such price to be determined by the Court.

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15. After the exchange of pleadings, the Trial Court framed the following issues which emerged from the pleadings of R.S. No. 4 of 2007 which read as under:-

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"(i) Whether in light of the averments made in the plaint, the plaintiff is entitled to 1/4th share in the ancestral house bearing 50/8 (old number) and 50/110 (new number) situate at Jai Narayan Road, Hussainganj, Lucknow, the boundaries of which are mentioned in paragraph 2 of the plaint? if yes, its effect.

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(ii) Whether the plaintiff is entitled to get the gift deed dated 14.11.1931 executed in favour of the defendant no. 4 declared as null and void? if yes, its effect.

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(iii) Whether in light of the pleadings, the plaintiff is entitled to get the sale deed dated 10.01.2007 executed in favour of the defendant no.5 declared as void, if yes, its effect.

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(iv) Whether the defendants are illegally interfering in the peaceful possession of the plaintiff, if yes, its effect.

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(v) Whether the plaintiff is entitled to any relief."

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16. In light of the pleadings exchanged in Regular Suit No. 436 of 2009, the following issues were framed.

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(vi) Whether the plaintiffs are entitled to get their 3/4th share separated from the defendant, if yes, its effect.

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(vii) Whether the defendant is entiled to the relief claimed in his counter claim to buy the share of the stranger purchasers at Rs. 9,00,000/-and if so, its effect.

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(viii) Whether the defendant is entitled to purchase the share of the stranger purchasers in terms of Section 4 of the Partition Act, 1893, if so, its effect.

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(ix) Whether the plaintiffs and the defendants are entitled to any relief in terms of the prayer made in the plaint and the written statement containing counter claim ?

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17. Since Regular Suit No. 4 of 2007 was made the leading case, accordingly, the evidence was led in the said suit. Sri Devi Shankar Shukla examined himself as P.W. 1 while he examined Sri Shailendra Kumar Mishra as P.W. 2 and filed documentary evidence.

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18. The defendants examined Sri Yogesh Kesarwani as D.W. 1 and Priyank Shukla as D.W. 2 and also filed documentary evidence in support of their contentions.

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19. The Trial Court held that the gift deed executed in favour of Kripa Shankar Shukla could not be declared as null and void as Sri Kripa Shankar Shukla died during the pendency of the Suit and the respondent herein admitted in his cross-examination that Kripa Shankar Shukla was survived by his legal heirs but they were not brought on record, hence, the suit abated. Accordingly, issue no. (ii) was decided in the negative against the respondent herein. However, while dealing with issue no. (i), it held that Devi Shankar Shukla (respondent herein) had 1/4the share in House No. 19, 50/8 (old) and 50/110 (new number) situate at Jai Narayan Road, Hussainganj, Lucknow.

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20. While dealing with issues nos. (vii) and (viii) which emerged from the suit for partition instituted by the stranger purchaser, the Trial Court found that the co-sharer did not give any un-conditional offer to purchase the share of the stranger purchasers at the market value, consequently, the said issues were decided against the respondent herein.

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21. While dealing with issue no. (vi), the Trial Court concluded that since the stranger purchasers had purchased the 3/4th share from the other co-sharers after paying a valuable sale consideration and the said sale deed was duly registered, also, as the respondent herein had not given an unconditional offer to purchase the share of the earlier transferee Sri , Satya Prakash Nigam, hence, could not claim the benefit of Section 4 of the Partition Act, hence, the stranger purchasers were entitled to get their 3/4th share partitioned, accordingly, deciding the said issue in favour of the stranger purchasers/the appellant herein.

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22. In light of the aforesaid findings, the issues nos. (iii) (iv) and (v) were decided against the respondent herein.

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23. The Trial Court by means of judgment and decree dated 20.01.2016 held the suit bearing No. 4 of 2007 to have abated but declared the respondent herein/the cosharer having 1/4th share in the property bearing 19, 50/8 (old) and 50/110 (new number) situate at Jai Narayan Road, Hussainganj, Lucknow. The suit of the stranger purchasers bearing No. 436 of 2009 was decreed declaring them to be owner of 3/4th share in the said property and entitled to get their share partitioned. The counter claim filed by Devi Shankar Shukla, the respondent herein was dismissed.

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24. The respondent herein, being aggrieved against the said judgment and decree dated 20.01.2016 passed by the Trial Court preferred two Regular Civil Appeals

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under Section 96 C.P.C. The Regular Civil Appeal No. 62 of 2017 emerged from Regular Suit No. 4 of 2007 whereas Regular Civil Appeal No. 63 of 2016 arose from Regular Suit No. 436 of 2009. The Lower Appellate Court noticed that the respondent herein did not press the Regular Civil Appeal No. 62 of 2017 emerging out of Regular Suit No. 4 of 2007 and dismissed the said appeal as not pressed.

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25. While dealing with Regular Civil Appeal No. 63 of 2016, the Lower Appellate Court framed the following points for determination:-

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"(i) Whether the respondent herein (the appellant before the Lower Appellate Court was ready and willing to purchase the 3/4th share of the stranger purchasers in furtherance of Section 4 of the Partition Act.

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(ii) Whether the Trial Court while passing the impugned judgment and decree dated 20.01.2016 has misconstrued the scope and ambit of Section 4 of the Partition Act, 1893."

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26. Upon hearing the learned counsel for the parties, the Lower Appellate Court allowed the appeal and held that the house in question was a family dwelling house and in terms thereof the respondent herein was entitled to exercise his right under Section 4 of the Partition Act, 1893 and was entitled to purchase the share of the stranger purchasers for a sum of Rs. 9,00,000/-. It also recorded a finding that the date on which the respondent herein exercised his right of purchase was the material date on which the valuation was to be considered and directed the stranger purchasers to receive a sum of Rs. 9,00,000/- from the respondent herein and execute a sale deed in his favour within a period of 3 months on expenses and stamp duty to be payable by the respondent herein"

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27. The stranger purchasers (the appellant herein) have assailed the said judgment and decree dated 14.02.2017 passed by the Special Judge (Prevention of Corruption Act), Court No. 2/ADJ, Lucknow by means of the second appeal on the questions of law as enumerated hereinabove first".

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This court has observed in paragraph 37 of the judgment dated 7-2-2022 that the two courts below have proceeded on the premise that the house in question is a family dwelling house. Hence, this Court is not inclined to interfere with the said premise Accordingly, the submission of the learned counsel for the appellants that the property in question is not a dwelling house and thus the respondent is not entitled for the benefit of Section 4 of the Partition Act is turned down. As regards the undertaking given by the respondent (Devishankar Shukla) to buy out the share of the appellant, the submission of the appellant is that the undertaking must be un-equivocal and and unconditional and only then can it be relied upon.

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This court has observed in paragraphs 52 to 56 as under :--

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"52. The perusal of Section 44 of the Transfer of Property Act, would indicate that a stranger to a family who becomes the transferee of an undivided share of one of the co-owners in a dwelling house belonging to an undivided family can not claim a right of joint possession of the house with the other co-owners of the dwelling house. It clearly manifests the intention of the legislature that a stranger is to be kept out from the common dwelling house occupied by the co-sharer to ensure peaceful living, enjoyment of the dwelling house by the remaining co-owners being the members of the same family.

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53. Now, in the aforesaid backdrop, the statements of objects and reasons for enacting the Partition Act, 1893, would indicate that the legislature proposed to give the Court the power of compelling a stranger who has acquired by purchasing a share in the family dwelling house, when he seeks for partition, to sell his share to the members of the family who are the owners of the rest of the house at a valuation to be determined by the Court.

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54. The statement of objects and reasons for enacting the Partition Act, 1893, is quoted hereinafter for ready reference:-

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"It is also proposed in the Bill to give the Court the power of compelling a stranger who has acquired by purchase a share in a family dwelling house when he seeks for a partition, to sell his share to the members of the family who are the owners of the rest of the house at a valuation to be determined by the Court. This provision is only an extension of the privilege given to such shareholders by Section 4, paragraph 2 of the Transfer of Property Act, and is an application of a well-known rule which obtains among Muhammadans everywhere and by customs also among Hindus in some parts of the country."

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55. Thus, from the above, it can clearly be deciphered that the Act of 1893 intended to extend the privilege which was already available to a co-sharer in the family dwelling house in terms of Section 44 of the Transfer of Property Act.

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56. It is in this backdrop, whenever an issue crops up before a Court regarding Section 4 of the Partition Act, it would be incumbent upon the Court to see that certain conditions as enumerated hereinafter are fulfilled before an an order can be passed enforcing the right of a person in terms of the said Section 4 of the Partition Act, 1893.

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(i) It is sine-qua-non that the disputed property must be a family dwelling house where the co-owners have undivided share and one or more of such co-owners have affected a transfer of their undivided share.

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(ii) For invoking Section 4 of the Partition Act the transferee of an undivided share of the co-owner should be a stranger/outsider to the family.

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(iii) Such a stranger purchaser must institute proceedings for partition and separate possession of his undivided share transferred to him by the co-owners in question.

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(iv) When such a claim is instituted by the stranger purchaser then any member of the family who still has an undivided share in the dwelling house must come forward to press his claim of preemption by undertaking to buy out the share of the stranger purchaser.

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(v) At the time of accepting the claim for preemption made by the existing co-owners of the dwelling house in respect of the share of the stranger purchaser, it is the Court that should make a valuation of the share of the stranger purchaser and must make the existing co-sharer of the dwelling house to pay the value of the share of the stranger purchaser so that the existing co-owner is able to purchase by preemption the share of stranger purchaser in the dwelling house in its entirety so that the rights of the parties are completely satisfied and the stranger purchaser is left with no other right or share in the dwelling house and consequently, the stranger purchaser can be effectively denied entry in any part of the dwelling house"

¶107

This court has placed reliance on a judgment of the Apex Court in the case of Malati Ramchandra Raut and Others Vs. Mahadevo Vasudeo Joshi and others reported in 1991 Supp (1) SCC 321 held that the decision is only the decision which has been brought to the notice of the court wherein it has clearly been held that valuation had to be made with reference to the time at which the right arose. Neither the legislation has put any fetters in discretion of the court in determining the valuation, nor has legislature put any restrictions regarding the date on which valuation is to be reckoned. It is also to be kept in mind that, in a suit for partition where each of the parties is a plaintiff and the defendant and while making partition of the property, the court has to keep an balance the equities between the parties. Another crucial aspect is that the co-sharer who exercises the right of presumption actually compels the purchaser to make a forced sale.In other words, a valid transaction of sale in favor of a stranger purchaser is sought to be disturbed by the intervention of the court at the behest of co-sharer.

¶108

In the instant case, as the facts would indicate that a suit for partition was instituted on 22/6/2009. The plaintiff appellant, herein (Stranger purchase) had purchased the share by means of a registered sale- deed dated 22/7/2008 and they have pleaded their rights having 3/4 share in their plaint while stating that the dependent/respondent had 1/4 share and that their three-fourths share be separated.

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They had valued their share at Rs.9,00,000/- for the purpose of court fee. The defendents, in their written statement did not deny the fact that the plaintiff had purchased a three-fourths share and the dependent had a one-fourth share, as is evident from paras 22 and 25 of the written statement. In suit number 436 of 2009, the dependents, in paragraph 20 had clearly made an averments that he undertakes to

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purchase the share of the plaintiff. Moreover, in the counter-claim in paras 32 and 33 has sought a decree of mandatory injunction, requiring the plaintiff to sell their share in furtherance to section 4 of the Partition Act The the defendents had also made a separate application bearing Paper number C-17 dated 18/12/2009, wherein specifically required the court to pass orders regarding purchasing the share of the plaintiff.

¶113

28 In this backdrop,there was no dispute between the parties regarding the extent of share in the disputed property. In the said circumstances, the only relevant issue before the Trial Court was whether in terms of Section 4, the defendant respondent was entitled to purchase the share of the stranger purchaser and if so its valuation and on what terms.

¶114

The respondent defendant (Devi Shanker) also filed regular suit no. 4 of 2007 wherein he had challenged the gift deed of 1931. Admittedly, in the aforesaid suit, Kripa Shankar Shukla was impleaded as defendant no. 4 and the gift deed in favour of Dr. Shukla of 1931 was under challenge. It is also an admitted fact that Dr. Shukla expired and his legal heirs were not brought on record. Thus, by operation of law, the suit against Dr. Shukla stands abated.

¶115

The Trial Court upheld the shares of the parties but declined to grant the benefit of Section 4 to the respondents herein on the premise that in the suit instituted by him bearing No. 4 of 2007, he had not made any offer to Sri Nigam, hence, he was not entitled to the benefit of Section-4. These findings were reversed by the First Appellate Court and it held that the respondent was entitled to purchase the share of the appellants for a sum of Rs. 9,00,000/-

¶116

This Court in light of the discussion made in the preceding paragraphs finds that actually in terms of Section 4, the duty is cast upon the Court to determine the valuation of the share of the stranger purchaser. The valuation of the suit property in the plaint is for the limited purpose of ascertaining the court fee in terms of the Court Fees Act 1970. However, whenever the issue regarding valuation arises, the same has to be decided by the court after permitting the parties to lead evidence in respect of their contentions.

¶117

The whole idea regarding valuation is that the share must be valued, as far as possible, at such price which can be fairly fixed in free market, without being influenced by any distressing circumstances which may suppressed the value of the property in question.

¶118

The court has to be extremely conscious in determining the value and while adopting a reasonable and well-accepting mode, balance the equity and rights of the respective parties.This Court finally observed and passed directions while deciding the second appeal which is as under :-

¶119

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"88. In absence of any exercise undertaken by the court to determine the actual valuation and neither the parties provided any evidence regarding the mode of valuation, accordingly, this Court finds that the judgment and decree passed by the two Courts is not sustainable and this Court would not venture into the exercise of determining the valuation as the same would require evidence, hence, it would be most appropriate that the matter be remitted to the Trial Court with the direction that it shall appoint a Government approved property valuer who would visit the property and determine the valuation of the property in question prevailing in December, 2009 i.e. the date when the defendant respondent herein made an application seeking enforcement of his rights to purchase the share of the stranger purchaser. The parties would also be entitled to lead their evidence in respect of the valuation and also indicate the natural/reasonable escalation/stagnation/fall in the prices of the property in question, as the case may be.

¶122

89. The Trial Court considering the evidence as well as the valuation report submitted by the valuer so appointed by it shall give his finding on the valuation also factoring for reasonable variation in the rise/fall in the prices of the property in light of the evidence on record in this regard. The entire exercise shall be completed within a period of six months from the date a certified copy of the judgment is placed before the Court concerned. Upon the valuation so determined, the respondent herein (the co-sharer) be first allowed to purchase the share of the plaintiffs within a reasonable period of four months thereafter and in case if he fails to do so, the parties shall be free to move the Court for getting their shares separated as per law provided there is no other legal impediment in doing so. Thus the substantial questions of law as framed at Serial No. (i) stands answered.

¶123

90. Now, in so far as the submission regarding the application moved by the appellant under Section 152 read with Section 153 of C.P.C. is concerned, since this Court has allowed the appeal and remanded the matter to the Trial Court, no further order in respect of the application under Section 152 and read with Section 153 C.P.C. bearing C.M.A. No. 154367 of 2021 is required. The application shall also stands disposed of, however, the parties shall be at liberty to approach the Trial Court in this regard if any need arises.

¶124

91. In light of the detailed discussions hereinabove, the instant second appeal deserves to be allowed and the judgment and decree dated 14.02.2017 passed by the First Appellate Court as well as judgment and decree dated 20.01.2016 passed by the Civil Judge (Senior Division), Luckow in R.S. No. 436 of 2009 is set aside. The matter be remanded to the Trial Court before whom the parties shall appear on 07.03.2022 and who shall consider the issue regarding the valuation of the share of the appellants in light of the observations made in this judgment. It is made clear that in so far as the findings regarding the share of the respective parties as well as the house in question being a family dwelling house is concerned they have not been disturbed".

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¶127

Thus, from perusal of directions issued in paragraphs 89 and 91, this court while deciding the second appeal hold two issues; firstly, the trial court considered the evidence as well as the valuation report submitted by the valuer so appointed by it, shall give his findings on the valuation. The entire exercise shall be completed within a period of six months from the date the certified copy of the judgment is placed before the court concerned ; secondly, upon the valuation so determined, the respondent (co-purchaser) be first allowed to purchase the share of the plaintiff within a reasonable period of four months. This court has further clarified that in case the respondent (co-purchaser) fails to do so, the parties shall be free to move the court for getting their shares separated as per law provided there is no other legal impediment in doing so.

¶128

35 With the above directions, this court has set aside the judgment and order passed by both the courts below in regular suit number 436 of 2009. The matter was remanded to the trial court, and the parties were directed to appear before the trial court on 07/03/2022. The trial court was directed to consider the issue regarding the valuation of the share of the appellants in light of the observations made in this judgment. It is also made clear that in so far as the findings regarding the shares of the respective parties, as well as the question being a family dwelling house, is concerned, they have not been disturbed. It appears from the record that the court appointed an approved valuer, architect, namely Sanjay Saxena, for carrying out a valuation of the suit property in the light of the direction of this code, who submits his report before the trial court on 6/12/2023. Objections were invited by the court on the report of the valuer, and after considering the objections filed by the present applicant/plaintiff, the trial court accepted the same vide order dated 7/5/2024 and fix a date on 22.05.2024. The valuer had ascertained the value of the property as Rs.918,000 in December 2009 The valuer has stated that he had ascertained the value of the property in December 2009, adopting the market value method. The valuer's report was deposited by Advocate Commissioner, Phool Kumar Singh. Then the appellant/plaintiff has stated in his objection that the valuer, Sanjay Saxena, had never inspected the house instead he get the property inspected by his assistant Mayank Sachan and then he signed the valuation report produced by him which was submitted before the court by the Advocate Commissioner. Thus, the process of valuation is tainted. The property in the valuation report is shown as resident house number 50/8, situated at Jay Narain Road, Ward Husseinganj, District Lucknow. The report is signed by the valuer Sanjay Saxena. The plinth area is 120 square meters. As per the sale deed of Mukesh Kesharwani, the plinth area is 108.87 square meters. After accepting the valuation report, vide order dated 9/5/2024, the respondents moved an application before the trial court on 10/7/2024, showing their intention to purchase a share of the portion in the said house. The respondent also filed another application on 10/9/2024 before the court below, in which the defendant showed his willingness to purchase the share of the appellant in terms of the order of this court passed in the second appeal. The applicant filed an objection on an application dated 19/9/2004, on 13/12/2024,

¶129

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wherein it is stated that the trial court made up a procedure as provided under Order 21 Rule 34 CPC for getting the sale deed executed by them. The trial court vide order dated 12/9/2024 accepted the Application No. 57C, dated 10/7/2004, filed by the respondents and directed the appellant to appear on 18/9/24 at 12:00 hours in the Registry office and, after receiving the sale consideration of Rs. 918,000/- from the defendants execute the sale deed of 3/4th share. This order was assailed by the appellant before the Court of District Judge by way of filing Civil Appeal No. 192/2004, where the ground was taken that the period of limitation of four months prescribed for execution of the sale deed had lapsed. The impugned order dated 12/9/2024 was passed six days later, after the lapse of the period of four months as prescribed by this court in the second appeal. The rivisional court dismissed the civil revision against which the present petition under Article 227 has been filed.

¶132

In the present case, the report of the Valuer was accepted on 7/5/2024 and, according to the direction of this court, after determination of valuation, the respondent (co-sharer) be first allowed to purchase the share of the plaintiff within a reasonable period of four months. Subsequent to passing of the order dated 7/5/2024, the respondent filed Application No. 57-C before the trial court on 10/7/2024, expressing his willingness to purchase the share of the appellant i.e. just after two months of this order. This application was allowed by the trial court's vide order dated 12/9/2024. Thus, there is six-day delay on the part of the trial court, permitting the respondents to purchase the share of the appellant.

¶133

I find force in the observation of the revisional court that as the sale deed is being executed in terms of the direction of this court passed in the second appeal, there is no need for the preparation of any preliminary decree and thereafter, putting the same for execution. All the issues involved in the case were duly considered by this Court in the second appeal and the trial court is only directed to ensure compliance of the direction issued in paragraphs 89 and 91 of the order of this court. The respondent has moved the above application, showing his willingness to purchase the property within a reasonable time, therefore, if any delay (six days) has been caused in the matter, the same cannot be attributed to the respondent in-as-much as he had moved another application subsequent to passing of the order dated 12/9/2024, on 19/9/2024, stating that in compliance of the order dated 12/9/2024, he had appeared at the registry office, along with the demand draft of sale- consideration, but the appellant did not appear to execute the sale deed.

¶134

In view of above, the contention put forth on behalf of the petitioner that due to delay of six days in passing the order dated 12/9/2024, the sale-deed directed to be executed by the petitioners in favour of the respondent has now become inexecutable, due to delay of passing of said order and and due to the fact that that the time limit fixed by this court in second appeal has not been extended, cannot be subscribed and it has no force.

¶135

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¶136

¶137

The contention of learned counsel for the petitioners on the basis of pleadings in the present petition that due to set aside decree of both the courts below in Second Appeal no. 202 of 2017 by judgment and order dated 17/2/2022 passed by this court. There is no decree in existence and therefore, in absence of any decree, the direction issued by this court in second appeal cannot be executed by the trial court is also without any legal force. This court, while set aside the judgment and decree passed by the first appellate court as well as the judgment and decree passed by the learned Civil Judge (Senior Division) Lucknow in a regular suit has clarified that so far as the findings regarding the share of the respective parties as well as the house in question being a family dwelling house are concerned, they have not been disturbed.

¶138

This court, in second appeal, while directing the valuation of the property by the court concerned and enabling the respondents (co-sharers) be first allowed to purchase the share of the plaintiffs within a reasonable period of four months, thereafter answered the first substantial question of law formulated in the second appeal in the said manner. It also directed that if the respondents fail to do so, the parties shall be free to move the court for getting their share separated as per law, provided there is no other legal impediment in doing so. Thus, this court in second appeal gave the first option to the respondent to purchase 3/4th share of the appellant (stranger purchaser) after determination of the share value of their 3/4th share by the learned trial court within a reasonable period of four months and if they fail to do so, the parties may move the court for getting their share separated as per law.

¶139

41 The trial court is bound by the direction passed by this court in second appeal and cannot decline or refuse to execute the order passed by this court on technical grounds or on the ground that due to setting aside the decree passed by both courts in second appeal, no decree is in existence which may be executed.

¶140

It is needless to add that the direction of this court in second appeal whereby the respondent is given an opportunity to purchase 3/4th share of the appellant after paying the value of their share as determined by the trial court through an approved valuer, may be treated as a decree and may be put in for execution in terms of the direction passed in second appeal.

¶141

However, I find force in the submission made on behalf of the appellants that in the present case the decree for execution of sale-deed involves, the same will only be executed by observing the procedure laid down under Order XXI Rule 34 CPC.

¶142

"12. Order XXI Rule 34 reads as follows:

¶143

"34. Decree for execution of document, or endorsement of negotiable instrument.-

¶144

(1) Where a decree is for the execution of a document or for the endorsement for a negotiable instrument and the judgment-debtor neglects or refuses to obey the decree, the decree-holder may prepare a draft of the document or endorsement in accordance

¶145

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with the terms of the decree and deliver the same to the Court.

¶148

(2) The Court shall thereupon cause the draft to be served on the judgment-debtor together with a notice requiring his objections (if any) to be made within such time as the Court fixes in this behalf.

¶149

(3) Where the judgment-debtor object to the draft, his objections shall be stated in writing within such time, and the court shall make such order approving or altering the draft, as it thinks fit.

¶150

(4) The decree-holder shall deliver to the Court a copy of the draft with such alterations (if any) as the Court may have directed upon the proper stamp-paper if a stamp is required by the law for the time being in force; and the Judge or such officer as may be appointed in this behalf shall execute the document so delivered.

¶151

(5) The execution of a document or the endorsement of a negotiable instrument under this Rule may be in the following form, namelyC.D., Judge of the Court of (or as the case may be), for A.B. in suit by E.F. against A.B. and shall have the same effect as the execution of the document or the endorsement of the negotiable instrument by the party ordered to execute or endorse the same.

¶152

(6) (a) Where the registration of the document is required under any law for the time being in force, the Court, or such officer of the court as may be authorised in this behalf by the Court, shall cause the document to be registered in accordance with such law.

¶153

(b) Where the registration of the document is not so required, but the decree-holder desires it to be registered, the Court may make such order as it thinks fit.

¶154

(c) Where the Court makes any order for the registration of any document, it may make such order as it thinks fit as to the expenses of registration."

¶155

The present is indeed a case where the decree in question provides for the execution of the document. The document is the document of sale as contemplated under the decree. Therefore, Order XXI Rule 34 is clearly attracted. It contemplates that if the judgment debtor neglects or refuses to obey the decree, the decree-holder is to prepare a draft of the document. In this case, the draft of the document is the draft sale deed. The draft of the sale deed must further be in accordance with the terms of the decree. It is to be delivered to the court. Thereupon, it is not required that the decree holder must directly deliver it to the judgment debtor. The procedure, therefore, is that the decree holder must make it available to the Court. Under Order XXI Rule 34, it becomes the duty of the court to thereupon cause the draft to be served upon the judgment debtor. There must be a notice inviting objections and the court may fix a time within which objections are to be filed. The judgment debtor may or may not object. Order XXI Rule 34 Sub-rule (3) contemplates a situation where the judgment

¶156

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debtor objects. Thisis to be contained in writing within the time provided. The court is duty bound to make an order approving or altering the draft as it thinks fit. This is of considerable importance having regard to what may follow subsequently on the strength of the decree. It is also important from the point of view of the role of the executing court which is to act in conformity with the decree.

¶159

It is well settled that the execution court cannot go beyond the decree. The decree must be executed as it is. Though, it is indeed open to the executing court to construe the decree; it cannot go beyond the decree. Therefore, when objections are filed pointing out in a given case that the proposed draft of the sale deed is not in conformity with the decree, it becomes the duty of the executing court to apply its mind and to make alterations in the draft, if needed, to make it in conformity with the decree. It will be thereafter that the decree holder is to deliver it to the court with the alterations if any made by the court, on proper stamp paper, if required and the execution of the document is effected by the court or the officer appointed. There are other formalities contemplated in regard to registration, all of which take place only after the procedure which is contemplated in Order XXI Rule 34 Sub-rule (1) to (4) is followed.

¶160

In view of the above, I direct that the parties shall appear before the trial court within six weeks from today and a certified copy of the judgment will be placed before the court by either of the parties and the trial court shall treat the operative order passed in second appeal as a "decree" of the court and proceed to execute the same as provided under Order XXI Rule 34 CPC .i.e. the respondent will submit draft sale- deed before his appearance before the Court and certified copy thereof to the petitioners/ original plaintiffs in suit number 436 of 2009. The Court will invite objections on the draft sale-deed and will dispose of the same at the earliest.

¶161

A report will be taken from the office of the Sub-Registrar regarding payment of court fees and the same shall be paid by the respondent in the prescribed mode. The sale consideration of Rupees Rs. 9,18,000/- as fixed by the court below, will be paid to the executant of the sale deed of 3/4 share of the petitioner, either through RTGS or through a demand draft as agreed between the parties, or in case of non-compliance, as per the direction of the trial court. The entire exercise will be completed within six months.

¶162

The petition stands disposed of with the above observations and directions.

¶163

November 18, 2025 dk/

¶164

(Ram Manohar Narayan Mishra,J.)

¶165

Digitally signed by :- DEVENDRA KUMAR High Court of Judicature at Allahabad, Lucknow Bench

Dr. Mukesh Kesarwani and Another v. Devi Shankar Shukla

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Dr. Mukesh Kesarwani and Another v. Devi Shankar Shukla

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