Rajinder Kaur (Deceased) through Legal Heir Usha vs Gurbhajan Kaur (Deceased) through LRs Upinder Kaur and Others

2024 INSC 552 REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. ……………. OF 2024 (Arising out of S.L.P.(C) Nos. 12198-12199 of 2018)

RAJINDER KAUR (DECEASED) THROUGH LEGAL HEIR USHA … Appellant (s)

VERSUS

GURBHAJAN KAUR (DECEASED) THROUGH LRS UPINDER KAUR AND OTHERS … Respondent(s)

JUDGMENT

Rajesh Bindal, J.

1. Leave granted.

2. The present appeals arise out of a suit for partition 1

filed by the appellant for partition of the property jointly owned Signature Not Verified

at that time by the appellant-plaintiff and respondents- Digitally signed by Jayant Kumar Arora Date: 2024.07.24 16:55:35 IST Reason:

defendant Nos.1 to 9. Defendant Nos.10 to 14 were impleaded 1 Civil Suit No. 4406 of 2005 Page 1 of 25 in the suit as they were stated to be tenants on the part of the

property. During the pendency of the suit before the Trial

Court2 respondent-defendant No.3, Bhupinder Singh, having

sold his share to S.C. Bhalla, he was impleaded as defendant

No.3(a). Further, defendant Nos.6 to 9 having sold their shares

to the subsequent buyers, who were impleaded as defendant

Nos.15 to 19.

3. After the amendments were carried out in the plaint,

considering the subsequent events and impleadment of

subsequent buyers, the final prayer was for partition of the suit

property by metes and bounds and in case not possible, sale

thereof by open auction and distribution of the sale proceeds

amongst the co-sharers. Prayer was also made for directing the

defendant Nos.3 to 9 to furnish accounts of rent collected by

them from tenants and a direction to the tenants (defendant

Nos.10 to 14) to deposit the rent in the court. Further, the

plaintiff sought direction against defendant No.3-Bhupinder

Singh to pay mesne profit at the rate of ₹150/- per square ft.

per month for the area under his occupation. The present

litigation is at the stage of passing of preliminary decree. The

percentage of shares of the plaintiff and the defendants 2 Civil Judge (Junior Division), U.T. Chandigarh

Page 2 of 25 originally impleaded in the suit, to which no dispute has been

raised by the parties before this Court, have been noticed by

the High Court3 in the impugned judgment dated 05.04.20184.

The same is extracted below:

S. NO. NAME OF OWNER SHAREHOLDING 1. Rajinder Kaur (Plaintiff) 25% 2. Gurbhajan Kaur (Defendant No. 12.5% 1) 3. Prabhasharan Singh Sandhu 12.5% (Defendant No. 2) 4. Bhupinder Singh (Defendant No. 1% 3) 5. Ajay Aggarwal (Defendant No. 4) 17% 6. Neelam Aggarwal (Defendant No. 17% 5) 7. Amarnath Singla (Defendant No. 3.75% 6) 8. Laxmi Devi (Defendant No. 7) 3.75% 9. Meena Singla (Defendant No. 8) 3.75% 10. Seema Rani (Defendant No. 9) 3.75%

4. The aforesaid position was before the sale of their

respective shares by defendant No.3-Bhupinder Singh to

defendant No.3(a)-S.C. Bhalla and by defendant Nos.6 to 9 to

defendant Nos.15 to 19. Preliminary decree for partition of the

suit property to the extent of 25% share was passed by the Trial

Court on 10.10.2012 in favour of the plaintiff. As the property

could not be partitioned on account of legal bar under the

3 High Court of Punjab and Haryana at Chandigarh 4 Passed in RSA No. 6076 of 2015 Page 3 of 25 Chandigarh (Sale of Sites and Buildings) Rules, 1960 5, the same

was directed to be auctioned. The preliminary decree was also

passed for rendition of accounts against the defendants

wherein all the co-sharers of the suit property were directed to

render accounts. Defendant Nos.4 & 5 having inducted tenants

in some portion of the suit property in their possession were

directed to submit the accounts of rent collected by them. The

market rate of the rent of the portions in possession of

defendant no.3(a)-S.C. Bhalla and defendant Nos.15 to 19 were

to be determined while passing the final decree. Defendant

No.3(a) having stepped into the shoes of defendant No.3,

defendant Nos.4 & 5, and defendant Nos.15 to 19, having

stepped into the shoes of defendant Nos.6 to 9, were restrained

from creating charge or encumbrances on the suit property.

5. Challenging the aforesaid preliminary decree passed

by the Trial Court, two appeals were filed. Civil Appeal No. 857

of 2012 was filed by defendant No.3(a), and Civil Appeal No.

850 of 2012 was filed by defendant Nos.15 to 19, the

subsequent buyers from defendant Nos.6 to 9.

5 Hereinafter referred to as ‘the 1960 Rules’

Page 4 of 25 5.1 Inter alia the ground raised by defendant No.3(a)-S.C.

Bhalla regarding the mesne profit was that the assessment of

the rent by the Trial Court was not appropriate as material

evidence placed on record was not considered. Rent being

given by a tenant for a small area cannot be made the basis of

assessment of rent of the complete building. There was no

denial as such regarding his liability to pay the rent. He had

even admitted the fact that certain tenants had been inducted

by him.

5.2 The defendant Nos.15 to 19/appellants before the

First Appellate Court are in possession of part of the suit

property on the ground floor, in which they are carrying on

business. The appeal was filed primarily on two grounds,

firstly, that the property was sold to them while concealing the

fact of pendency of the civil suit regarding partition of the

property and passing of restraint order. Another objection

raised by them was for rendition of accounts claiming that they

were in possession of less than 15 % share of the suit property

and had not been collecting any rent, hence, no accounts are to

be rendered.

Page 5 of 25 5.3 The First Appellate Court6 allowed the appeal filed by

the defendant Nos.15 to 19 holding that they, being in

possession of the share of the suit property to the extent of

their ownership, were not liable to render accounts to other co-

sharers.

5.4 As far as the appeal filed by the defendant No.3(a) is

concerned, the judgment and decree of the Trial Court was

upheld and the appeal filed by him was dismissed.

6. Aggrieved against the judgment and decree of the

First Appellate Court, two appeals were preferred before the

High Court.

6.1 R.S.A. No.6076 of 2015 was filed by the plaintiff

impugning the judgment and decree passed in the appeal

preferred by the defendant Nos.15 to 19, which was allowed by

the First Appellate Court.

6.2 R.S.A. No.2761 of 2016 was filed by the defendant

No.3(a) impugning the judgment and decree of the First

Appellate Court whereby the judgment and decree of the Trial

Court qua him was upheld.

6 Additional District Judge, Chandigarh

Page 6 of 25 6.3 Both the appeals were taken up together and decided

vide judgment7 dated 05.04.2018. Second appeal8 was

disposed of by a short order in terms of judgment passed in

R.S.A. No.6076 of 2015. The appeal preferred by the plaintiff

challenging the judgment and decree in favour of the

defendant Nos.15 to 19 was dismissed, whereas appeal filed by

defendant No.3(a) was allowed. The High Court held that

defendant No.3(a) cannot be asked to render accounts. He got

the possession of the property after purchase from the earlier

co-sharer Bhupinder Singh (defendant No.3), who got the same

vacated after protracted litigation. Even if he was owner of the

1% share, he was not in wrongful possession.

6.4 As far as the appeal pertaining to defendant Nos.15

to 19 is concerned, it was opined that they being the co-sharers

in possession having no income are not liable to render any

accounts.

7. In the aforesaid factual matrix, the matter is before

this Court at the stage of preliminary decree in a partition suit.

The plaintiff has challenged the judgment of the High Court.

7 Passed in R.S.A. No. 6076 of 2015.

8 Passed in R.S.A. No. 2761 of 2016 dated 05.04.2018

Page 7 of 25

8. Learned counsel for the appellant-plaintiff submitted

that with the impugned judgment passed by the High Court an

anomalous situation has been created. In the suit property at

present there are 11 co-sharers, which was originally owned by

10 co-sharers. Judgment and decree of the Trial Court

regarding sale of the property by way of auction was not

challenged by any of the co-sharers to the extent of 84%.

Challenge was made on the issue of rendition of accounts by

the co-sharers. Dispute was sought to be raised only by co-

sharers to the extent of 16% by filing two separate appeals.

One by a co-sharer who owns only 1% share and another by a

set of five co-sharers who own 15% shares.

8.1 The party which owned 1% share in the suit property

has in his possession half portion of the ground floor in a three-

story building. Whereas another set of persons who were

owners to the extent of 15% of shares are in possession of

another half on the ground floor. The first and second floors of

the building were under the control of the defendant Nos.4 & 5

which were let out to the tenants. They have no objection to

render accounts of the rent collected.

Page 8 of 25

9. As far as defendant No.3(a)-S.C. Bhalla, who is owner

to the extent of 1% share and in possession of half portion of

the ground floor, is concerned even if he had not let out the

property, still he is liable to make good the loss suffered by the

other co-sharers. The reasoning given by the High Court to

absolve him from rendering accounts cannot be legally

sustained as he had purchased the property from the erstwhile

owner defendant No.3-Bhupinder Singh and got the vacant

physical possession. There is nothing on record to suggest that

after purchasing the property, he litigated and got the

possession from the tenants.

9.1 Insofar as another set of co-sharers to the extent of

15% shares is concerned, they are using half portion of the

ground floor for their business, hence liable to pay for use and

occupation of the property. They cannot, of their own, claim

that the portion in their possession is to the extent of their

ownership in the suit property. This is to be determined by the

Court. In case they are found to be in possession of the

property to the extent of their share and they do not contribute

to the common kitty for use and occupation of the premises,

they will not be entitled to any share out of the amount

Page 9 of 25 collected from the balance 85%. This exercise can very well be

done at the time of passing of final decree.

10. Learned counsel for the respondents-defendant

nos.15 to 19, set of co-sharers having 15% share in the

property, submitted that they are in possession of only 9.48%

of the property, on the ground floor. It was purchased during

the pendency of litigation. There was no relief claimed for

rendition of accounts qua them in the suit. There was no

prayer made in the suit for a direction to the defendant Nos.15

to 19 to render accounts. They may be liable to render

accounts if they are in possession of area more than their

share. In fact, they are in possession of area less than their

share. In the alternative, regarding the rate of rent to be

calculated in such circumstances, it was submitted that in case

the said defendants are required to render accounts, the rent

should not be calculated at the market rate. In fact, the

defendant No.3(a)-S.C. Bhalla is in possession of the area of the

property more than his share.

11. Insofar as the co-sharer, defendant No.3(a)-S.C.

Bhalla, to the extent of 1% share is concerned, the argument is

that issue no.3 framed by the Trial Court was regarding

Page 10 of 25 direction to furnish the accounts of rent collected from the

tenants. In the case in hand, the portion in possession of the

present co-sharer was never let out. Rendition of accounts and

mesne profits are two different concepts. It was further argued

that when the matter was pending before the High Court,

defendant No.3(a) offered to give possession of the suit

property with him to other co-sharers. An application 9 in the

paper book at page no.343 was referred to. The same is dated

27.09.2017. The argument raised is that he having offered

possession cannot now be made liable to render accounts or

mesne profits. He had purchased the property from defendant

No.3-Bhupinder Singh. Whatever possession was available with

him was given to defendant No.3(a)-S.C. Bhalla. Issue of

mesne profits will come in only if the defendant No.3(a) is found

to be in wrongful possession and the same was not given to

other owners when asked for.

12. As far as the respondents-defendant Nos.4 & 5 are

concerned, the arguments raised by the learned counsel are

that when partition of an immovable property is to take place,

Order XX Rule 18(2) of C.P.C. will be applicable. Sub-rule (2)

clearly provides that at the time of passing of preliminary 9 CM-12168-C-2017 in RSA-2761-2016 (O&M)

Page 11 of 25 decree declaring the rights of several parties interested in the

property, the Court may give such further directions as may be

required. The Trial Court had rightly directed all the parties to

render accounts either for the rent collected by them or for the

portion in their possession for which the rent was assessed at

the rate of ₹107/- per square ft. per month. It was pertaining to

the defendant No.3(a) and the defendants Nos.15 to 19. For

the portion under the control of the defendant Nos.4 & 5, which

was let out, they have already furnished the accounts. It is only

the defendant No.3(a) and defendant Nos.15 to 19 who are

reluctant to do the same. A simple suit for partition is pending

for about two decades despite the direction issued by this

Court, when the matter came at the stage of interim direction,

on 10.01.201210 to decide the suit within nine months.

13. Heard learned counsel for the parties and perused

the relevant referred record. As far as the percentage of shares

of different co-sharers in the property in-question is concerned,

though partly sold during the pendency of the suit, there is no

dispute. As on today it stands as under:

10 Passed in S.L.P. (C) No. 33302 of 2011

Page 12 of 25 S. NAME OF SHARE TRIAL COURT SUPREME COURT NO. PARTIES

1. Rajinder Plaintiff  Appellant (Thr. LR Kaur 25% Usha) in SLP (C) No. (Died on 12198 of 2018.

01.12.2006  Appellant (Thr. LR ) Usha) in SLP (C) No. 12199 of 2018. 2. Gurbhajan Defendant No. 1  R. No. 1 in SLP (C) Kaur 12.5% No. 12198 of 2018.  R. No. 5 in SLP (C) No. 12199 of 2018. 3. Prabhshara Defendant No. 2  Respondent No. 2 n Singh 12.5% (Thr. LRs) in SLP (C) Sandhu No. 12198.  Respondent No. 6 (Thr. LRs) in SLP (C) No. 12199 of 2018. 4. SC Bhalla Defendant No.  Respondent No. 3(a) (impleaded 1% 3(a) (Thr. LRs] in SLP (C) on No. 12198 of 2018. 01.11.2008  Respondent No. 1 ) (Thr. LRs] in SLP (C) No. 12199 of 2018. 5. Ajay Defendant No. 4  Respondent No. 4 in Aggarwal 17% SLP (C) No. 12198 of 2018.  Respondent No. 8 in SLP (C) No. 12199 of 2018. 6. Neelam Defendant No. 5  Respondent No. 5 in Agarwal 17% SLP (C) No. 12198 of 2018.  Respondent No. 9 in SLP (C) No. 12199 of 2018. 7. Kailash Defendant No. 15  Respondent No. 15 in Chand 3% SLP (C) No. 12198 of Gupta 2018.  Respondent No. 19 in SLP (C) No. 12199 of 2018. 8. Indu Bala Defendant No. 16  Respondent No. 16 in 3% SLP (C) No. 12198 of 2018.  Respondent No. 20 in SLP (C) No. 12199 of 2018. 9. Sahil Gupta Defendant No. 17  Respondent No. 17 in 3% SLP (C) No. 12198 of 2018.  Respondent No. 21 in

Page 13 of 25 SLP (C) No. 12199 of 2018. 10. Pratik Defendant No. 18  Respondent No. 18 in Gupta 3% SLP (C) No. 12198 of 2018.  Respondent No. 22 in SLP (C) No. 12199 of 2018 11. Ankita Defendant No. 19  Respondent No. 19 in Gupta 3% SLP (C) No. 12198 of 2018.  Respondent No. 23 in SLP (C) No. 12199 of 2018.

14. No dispute has been raised regarding partition of the

property by the Trial Court by any of the co-sharers. It is not a

matter of dispute that in terms of law laid down by this Court in

Resident’s Welfare Association and Another vs Union

Territory of Chandigarh and Others11 interpreting the 1960

Rules, there cannot be partition of property by metes and

bounds at Chandigarh. Hence, the only solution was for sale of

property by way of auction. This was the decree passed by the

Trial Court, which was not challenged by any of the co-sharers

on this issue.

15. It has now come on record that defendant No.3(a),

who purchased 1% share from the defendant No.3, is in

possession of half portion of the ground floor which according

to him has not been let out. Another half portion of the ground

11 (2023) 8 SCC 643: 2023 INSC 22: (2023) 1 SCR 601

Page 14 of 25 floor is stated to be in possession of the respondents-defendant

Nos.15 to 19, who purchased 15% shares from the defendant

Nos.6 to 9 during the pendency of the civil suit and are utilizing

the same for their own business. Defendant Nos.4 & 5 are

stated to be in control of the first and second floor of the

property which are under the tenancy of different tenants. They

do not have any grievance against the direction issued by the

Trial Court regarding rendition of accounts of the rent collected

by them. In fact, they have already rendered the accounts.

16. The effect of the judgment of the High Court is that

the co-sharers in the property to the extent of 16% are not

liable to render accounts.

17. Firstly, we deal with the issue regarding rendering of

accounts by the defendant No.3(a), who had stepped into the

shoes of defendant No.3 as he had purchased his share during

the pendency of this suit. It is not in dispute that the defendant

No.3 was owing only 1% of the share in the property in

question, whereas he had possession of a substantial part

thereof and handed over the possession of the same to the

defendant No.3(a).

Page 15 of 25

18. Defendant No.3(a), when appeared as a witness

before the Trial Court for his examination-in-chief, filed affidavit

dated 01.06.2012. He admitted that he had stepped into the

shoes of defendant No.3, having purchased his share by way of

a registered sale deed dated 02.06.2006. In paragraph 8 of the

affidavit, he stated that he had inducted five tenants in the

property, namely Sushma Kanwar, Santosh Chauhan, Deepak

Sagar, Inder Pal and Gurusharan Singh. The monthly rent

received therefrom was ₹1,500/-, ₹1,000/-, ₹1,500/-, ₹1,000/-

and ₹800/-, respectively was also mentioned. This information

was furnished by the defendant No.3(a) in compliance with an

order passed by the Trial Court on 04.04.2006, the relevant

parts thereof as contained in paras 23 and 26 of the said order

are extracted below:

“23. ………In the eventuality of the partition, the plaintiff and the other co-owners shall be entitled to a share in the rent and profits so, it will be in the fitness of the things if the defendant No.3 is directed to keep the proper accounts of the amount so realized by him regarding the property in question. He is hereby directed accordingly.

xxx xxx xxx

Page 16 of 25 26. As a result of the above detailed

discussions, both the applications are disposed of accordingly. The application for receiver stands dismissed and the application under Order 39 rule 1 & 2 r/w 151 CPC stands disposed of with the directions to defendant No.3 and the remaining defendants to keep the proper accounts of the amount so realized by them regarding the property in dispute, like rent etc., and in case, the defendant No.3 lets out the demised premises to anyone after obtaining the possession, he will intimate the court in advance with complete particulars of the person and will also intimate such person that he will be bound by the final outcome of the partition proceedings, and defendant No.3 and the other co-owners will not create any kind of charge on the property in dispute, so as that the rights of the parties after partition can be protected.”

18.1 To put the record straight with reference to the

amount of rent claimed to have been received by the defendant

No.3(a), it is relevant to refer to the fact that the learned

Additional District Judge vide order dated 24.05.2010 had

appointed the receiver. The receiver visited the spot (property

in question) and informed that none of the tenants as pointed

by defendant No.3(a)-S.C. Bhalla was occupying the premises.

The Trial Court in its order passed on 27.02.2012 found that the

Page 17 of 25 documents (rent notes as were available in the record of the

Trial Court)12 produced by defendant No.3(a)-S.C. Bhalla

showing tenancy of the portion of the building in his possession

has doubt of genuineness thereof. 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.

19. As far as defendant Nos.15 to 19 are concerned,

admittedly they are purchasers of the property from defendant

Nos.6 to 9 during the pendency of the suit. It is claimed by

them that they are carrying on their own business in the portion

in their possession and have not let out the same to anyone.

Hence, not generating any income therefrom by way of letting

out the property. The First Appellate Court held that they are

owners to the extent of 15% share in the property and are

stated to be in possession of front half portion on the ground

12 (i) Dated 10.10.2008 executed between S.C. Bhalla [D-3(a)] and Deepak Rai

(ii) Dated 15.10.2008 executed between S.C. Bhalla [D-3(a)] and Santosh Chauhan

(iii) Dated 18.10.2008 executed between S.C. Bhalla [D-3(a)] and I.P. Sharma

(iv) Dated 24.10.2008 executed between S.C. Bhalla [D-3(a)] and Gursharan Singh

(v) Dated 24.10.2008 executed between S.C. Bhalla [D-3(a)] and Sushma Kanwar

Page 18 of 25 floor of the show-room (property in question), stated to be

about 1,050 sq. ft. The First Appellate Court had accepted their

contention, relieving them from liability to render accounts on

the ground that they are in possession of the suit property to

the extent of their ownership, a fact yet to be determined. The

value of the portion of different floors of the suit property may

be different, hence, the value of shares.

20. As noticed earlier, the issue raised by the plaintiff

seeking partition of the joint property before this Court is only

with reference to rendition of accounts by the defendant

No.3(a) and defendant Nos. 15 to 19. The opinion expressed by

the High Court in the impugned judgment, that both of them

are not liable to render any accounts, deserves to be set aside.

20.1 As far as defendant No.3(a) is concerned, as noticed

above, he, being in possession of part of the property on the

ground floor, had claimed that he had let out that to five

tenants @ ₹5,800/- per month. When the receiver was

appointed, defendant No.3(a) wanted to deposit with him the

rent collected from tenants. The receiver refused to accept the

rent. An application filed by the defendant No.3(a)-S.C. Bhalla

before the Trial Court for a direction to the receiver to receive a

Page 19 of 25 cheque dated 25.08.2011 for ₹87,000/- was disposed of with

the observation that the receiver had rightly refused to receive

the alleged rent as the alleged tenancies created by S.C. Bhalla

were found to be prima facie not genuine. He shall be bound to

render the accounts at the time of partition as observed by the

High Court in its order dated 08.08.2011. The reference can be

made to the order dated 27.02.2012 passed by the Trial Court

while disposing of the applications filed by the receiver and the

defendant No.3(a).

21. 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.

However, this is with a rider as the plea sought to be raised by

the defendant No.3(a) regarding rent notes produced by him

were prima facie found to be sham transactions, as the market

rate of the rent of the portion in control of the defendant

No.3(a) was much more at that time. Even plaintiff offered

₹1,50,000/- per month. Hence, Trial Court will have to hold an

inquiry on this aspect and fix appropriate rent to which the

Page 20 of 25 defendant No.3(a) would be liable to contribute to the common

kitty for appropriation amongst all the co-sharers.

21.1 As far as the argument raised by the learned counsel

for the defendant No.3(a)-S.C. Bhalla regarding application filed

in the High Court offering to hand over possession of the

property in his possession is concerned, as annexed in the

present paper book at page No.343, the application was traced

out from the record and the same bears No.CM-12168-C-2017

in RSA-2761-2016. It is evident from the order passed by the

High Court dated 30.01.2018 that the aforesaid application was

directed to be heard with the main case. Meaning thereby that

the defendant No.3(a) may not be serious about the prayer

made in the application. It is further evident from the fact that

at the time of the final argument of the appeal again the prayer

made in the application was not pressed as there is no

discussion on the same and the issue was not raised by

defendant No.3(a) thereafter.

21.2 The High Court misdirected itself in recording the

finding that the defendant No.3(a)-S.C. Bhalla, being in self-

occupation of the part of the property, being a co-sharer, will

not be liable to render any accounts to arrive at such a

Page 21 of 25 conclusion. Reference was made to the fact that his vendor

(defendant No.3-Bhupinder Singh) has contested litigation with

the tenant (defendant No.10-M/s. H.M. Traders) and spent huge

amount thereon. But the fact remains that the defendant

No.3(a)-S.C. Bhalla has purchased the property from defendant

no.3-Bhupinder Singh after it had already been vacated by the

tenant and he was handed over vacant physical possession

thereof.

22. As far as defendant Nos.15 to 19 are concerned,

there is no dispute that the portion in their possession has not

been rented out to any third party. But it is also a fact admitted

by them that they are carrying their own business in the portion

in their possession. They have been absolved from rendering

account on the ground that the portion in their possession is to

the extent of their share in the property. However, this issue

has not been determined by any 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. In

case, during the course of proceedings for passing of final

Page 22 of 25 decree, the Court determines that the defendant Nos.15 to 19

were in actual physical possession of the property in question

to the extent of their share, they may not be liable to contribute

any amount in the kitty and subsequently will not be entitled to

any share from the total amount in the kitty coming out of the

amount collected from other portion of the property i.e. 85%.

However, in case it was found that they are in possession of

portion more than their share, there can be two options; either

they contribute to the common kitty for the entire portion of

the property in their possession and then get share therefrom

or they may be held liable to contribute to the common kitty for

the property in their possession beyond their share and

subsequently they will not be entitled to any share from the

common kitty. 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.

23. The appeals are accordingly allowed. The impugned

judgments passed by the High Court are set aside. There shall

be no order as to costs. It is directed that the defendant

No.3(a)-S.C. Bhalla and defendant Nos.15 to 19, namely,

Page 23 of 25 Kailash Chand Gupta, Indu Bala, Sahil Gupta, Pratik Gupta and

Ankita Gupta, respectively shall be liable to render accounts

and/or liable to contribute rent as assessed by the Trial Court

during the course of passing of final decree for the portions in

their respective possession. This Court has already elaborated

the course which needs to be adopted in para ‘22’ hereinabove

insofar as defendant Nos.15 to 19 are concerned.

24. 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.

25. We may notice here that the suit for partition was

filed way back in the year 2005. The matter is pending at the

stage of passing of preliminary decree for the last about two

decades that too in a case where the share of the parties is not

in dispute. The only dispute was with reference to rendition of

accounts by two of the co-sharers. Issues regarding whom

have been dealt with in this Judgment we direct the Trial Court

Page 24 of 25 to expedite the proceedings and dispose of the same within a

period of nine months from the date of receipt of this order.

……………….

……………..J. (C.T. RAVIKUMAR)

……………….……………..J. (RAJESH BINDAL) New Delhi July 23, 2024.

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