Disposed

Savitridevi C. Tiwari and Ors. v. Amravati Budhiraj Tiwari and Ors.

Bombay HC2 Aug 2011S/2683/2000

Case brief

AI extract

What is this about?

Court passed final decree in partition suit accepting Commissioner's report and valuer's valuation. Plaintiffs entitled to Rs. 52,30,500 representing their one-third share in suit properties. Defendants ordered to deposit unpaid valuation fees.

What did the court decide?

Final decree passed for net value of Rs. 52,30,500 representing plaintiffs' one-third share; Defendants to deposit valuation fees within two weeks.

Savitridevi C. Tiwari and Ors. Vs Amravati Budhiraj Tiwari and Ors. — Partition | Bombay HC (2011)

s-2683-00

mmj

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.2683 OF 2000 Savitridevi C. Tiwari & Ors. ..Plaintiffs Vs

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..Plaintiffs

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..Defendants

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Amravati Budhiraj Tiwari & Ors.

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Ms Mamta Omle i/b Mr. R.R.Mishra for the Plaintiffs Mr. N.R. Pandey i/b Mr. D.V. Shirsat for Defendant No.1(b) Mr. A.P. Vanarse i/b Mr. Satyajeet Mirajkar for Defendant No.1(c) and 2 Mr. A.C.Ghone Assistant to Commissioner for taking account, present Mr. Kishore H. Parkar Valuer present

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CORAM : SMT. ROSHAN DALVI, J. DATED : 2^nd August, 2011

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P.C. :

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The preliminary decree has already been passed in the above suit. The valuation of the suit properties by the Commissioner for taking Accounts has been directed. The Commissioner has made his report. The Commissioner has relied upon a report of the valuer on his panel to value the properties which belong jointly to the parties and for which the preliminary decree is passed. The Plaintiffs are entitled to their 1/3^rd share claimed by them and admitted by the Defendants.

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The valuation has been done upon the ready reckoner issued by the Stamp office in 2010. The valuation report of the valuer is dated 24-8-2010. The valuer has rightly taken the valuation in the ready reckoner as a base. Thereafter for some of the properties in prime area he has increased the valuation by 10 to 20% and for some other properties which are not in prime localities, he has decreased the valuation to the same extent. The valuer, who is present in Court, states that the valuation set out in the ready reckoner would apply in a radius of about 1.5 k.m and hence little adjustment would be

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required to arrive at fair valuation.

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The Plaintiffs accept the valuation.

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The Defendants object to the valuation under item No.5 and 7 of the valuation report. The Advocate on behalf of the Defendants states that there is an ota outside the shop. The ota is a common passage. The valuer has valued only the shop showing the carpet area as well as the built up area. The ota is not valued at all.

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Further objection is taken to what is called “covered terrace portion” in Tiwari Sadan at item No.7 of the valuer’s report. The terrace portion is stated to be belonging to the co-operative society. The Advocate on behalf of the Defendants states that the society owns the terrace. No documents are produced in that behalf. Hence the claim at this late stage cannot be accepted.

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The Advocates on behalf of the Defendants stated that the rooms in Kisan Nagar, Thane which are valued at item No.4 and 6 would show incorrect valuation because out of 8 rooms 5 rooms have been sold in 1992 and 1995. That was precisely the grievance of the Plaintiffs. All those 5 rooms have been sold by the Defendants. The 1/3^rd share of the Plaintiffs have not been paid by the Defendants. The Defendants have appropriated the entire amount constraining the Plaintiffs to sue. The Plaintiffs had sued in the year 2000. The valuation of all the properties has to be taken. The properties remaining as on date of sale can not alone be valued. That would be mockery of law. The final decree must represent the valuation of all the joint properties of the parties. The preliminary decree was passed upon the admission of the Defendants of the Plaintiffs’ 1/3^rd share in the suit properties. Hence the valuation of all the 8 rooms have to be made. That valuation would be as on date of the final decree. The

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valuation is, therefore, correct.

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The Commissioner for taking accounts has considered the valuation report with regard to the valuation of the properties of the parties. He has also taken into account the provident fund, gratuity and the amount paid on voluntary retirement of the parties. He had adjusted that amount whilst considering the final valuation. This takes into account the Defendants’ plea in the suit relating to the retiral benefits of the parties.

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Consequently the Commissioner’s report including the valuer’s report is accepted. The final decree is passed in terms of the Commissioner's report and the valuation report in a sum of Rs.52,30,500/- which is the net value of the 1/3^rd share of the Plaintiffs in the suit properties.

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It may be mentioned that an appeal has been filed from the order of preliminary decree. No stay of this suit is granted by the Appeal Court. The Advocate on behalf of the Defendants stated that the Appeal Court has not refused the stay from the proceedings and the advocate on behalf of the Plaintiffs stated, that was specifically refused. The Defendants have only produced an order of the Appeal Court allowing certain amendments. Consequently this Court has proceeded with the final decree as earlier directed in the suit. The suit is now stands ultimately disposed of

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10.The Defendants have also failed to pay 2/3^rd part of the valuation fees. Hence the Defendants shall deposit the valuation fees within two weeks from today, failing which, those fees also shall be recovered when the decree is ultimately executed.

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(SMT. ROSHAN DALVI, J.)

Savitridevi C. Tiwari and Ors. v. Amravati Budhiraj Tiwari and Ors.

Case brief

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Savitridevi C. Tiwari and Ors. v. Amravati Budhiraj Tiwari and Ors.

Case brief

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What did the court decide?

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