1. Upon the question of valuation of the suit house, the parties are concluded by the concurrent findings of the courts below that it is worth Rupees 20,000 and that the plaintiff should pay the defendant a sum of Rs. 10,000 representing a moiety of the market value. I do not think that these findings are vitiated by any error of law or by any misappreciation of the evidence on record. The only question of law raised by the appellant is that the market value of the house should have been ascertained, not as on the date when the half share was ordered to be sold, but as on the date on which the defendant offered to purchase the plaintiff's half share in 1963. Section 3 of the Partition Act prescribes that if, in any case in which the court is requested under Section 2 to direct a sale, any other shareholder applies for leave to buy at a valuation the share or shares of the party or parties asking for a sale, the court shall order a valuation of the share or shares in such manner as it may think fit and offer to sell the same to such shareholder, at the price as ascertained, and may give all necessary and proper directions in that behalf. There is nothing in the language of Section 3 to denote that the price shall be ascertained as on the date of the offer on the contrary, the section contemplates ascertainment of the price as on the date of the order for sale under Cl,. (2) of Section 3.
About 7 years have elapsed since the date of the offer and the date of the order for sale and it is true that during this period the market value of the house has shop up considerably. But, that is no reason why the defendant should exclude the plaintiff from the benefit of the rise in price during the seven years in question. The plaintiff continues to be the co-owner of the suit house along with the defendant upto the date of sale and it is but proper and just that the price of the property payable to hi should be ascertained on the date the plaintiff's title passes to the defendant and not as on any earlier date. It may also be observed that the defendant, when he made the offer, did not deposit the plaintiff's half share of the market value of the suit house into court. In these circumstances, it would work a great hardship indeed upon the plaintiff is he is compelled by the court to sell his share for less than the actual market value thereof as on the date of sale. As for the defendant, no hardship will be caused to him by this direction.
Reliance was placed by learned counsel for the appellant upon a ruling in Bhikari Behara v. Dharmananda Natia, : AIR1963Ori40 but that ruling was concerned with the interpretation of Section 4 of the Partition Act and has no bearing upon the facts of the present case. In the result, I confirm the finding of the courts below, which have ascertained the market value with reference to the right date. Consequently, both the appeal and the Memorandum of cross-objection fail and will stand dismissed. There will be no order as to costs. No leave, One month's time is granted to the defendant to deposit into court the sale price as fixed by the courts below.
2. I do not see any reason for clarification of the order which I passed on 7th July 1971. If the appellant fails to pay the amount within the time prescribed, the law will take its course.
3. Appeal dismissed.