IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR 1

BEFORE

HON'BLE SHRI JUSTICE VIVEK AGARWAL

ON THE 21 st OF AUGUST, 2023

MISC. PETITION No. 3523 of 2023

BETWEEN:-

• 1. D EVEN D R A KUMAR JAIN S/O LATESHRI JINENDRA KUMAR JAIN, AGED ABOUT 57 YEARS, OCCUPATION: BUSINESS R/O H NO 100RAMKRISHNAGANJ WARD NO 62 VITTHAL MANDIR ROAD KHANDWA TEHSIL AND DISTRICT KHANDWA (MADHYA PRADESH)
• 2. SURENDRA KUMAR JAIN S/O LATE SHRI JINENDRA KUMAR JAIN, AGED ABOUT 55 YEARS, OCCUPATION: BUSINESS R/O H.NO. 100 RAMKRISHNAGANJ ROAD KHANDWA TEHSIL AND DISTRICT (MADHYA PRADESH)

.....PETITIONERS

(BY SHRI DEEPAK RAGHUWANSHI - ADVOCATE)

AND

VIPINCHANDRA JAIN S/O SHRI LATENATTHUSA JAIN, AGED ABOUT 53 YEARS, OCCUPATION: THROUGH POWER OF ATTORNERY HOLDER KISHORE KUMAR J E S WA N I S/OJETHANAND JESWANI R/OSINDHI MOHALLA GALI NO 3 TEHSILAND DISTRICT KHANDWA (MADHYA PRADESH)

.....RESPONDENT

(BY SHRI AVINASH ZARGAR - ADVOCATE)

MISC. PETITION No. 3520 of 2023

BETWEEN:-

1. DEVENDRA KUMAR JAIN S/O LATE SHRI JINENDRA KUMAR JAIN, AGED ABOUT 57 YEARS, OCCUPATION: BUSINESS R/O H NO 100 RAMKRISHNAGANJ WARD NO 62 VITTALMANDIR ROAD KHANDWA TEHSIL AND DISTRICT KHANDWAL (MADHYA PRADESH)

2. SURENDRA KUMAR JAIN S/O LATE SHRI JINENDRA KUMAR JAIN, AGED ABOUT 55 YEARS, R/O H NO 100 RAMKRISHNAGANJ WARD NO 62 VITTALMANDIR ROAD KHANDWA TEHSIL AND DISTRICT KHANDWA (MADHYA PRADESH)

.....PETITIONERS

(BY SHRI DEEPAK RAGHUWANSHI - ADVOCATE)

AND

• 1. SMT SULOCHANA JAIN W/O LATE SHRI KAWARCHAND JAIN, AGED ABOUT 83 YEARS, R/O NEAR NILKANTH COLONY 64 -A RADHA NAGAR INDORE TEHSIL AND DISTRICT INDORE (MADHYA PRADESH)
• 2. GIRISH KUMAR JAIN S/O SHRI LATE KAWARCHAND JAIN, AGED ABOUT 61 YEARS, OCCUPATION: THROUGH POWER OF ATTORNEY HOLDER SMT. RESHMA JESWANI W/O KISHORE JESWANI AGE ABOUT 51 YEARS R/O SINDHI MOHALLA, GALI NO 3, TEHSIL AND DISTRICT KHANDWA R/O NEAR NILKANTH COLONY 64 -A RADHA NAGAR INDORE TEHSIL AND DISTRICT INDORE (MADHYA PRADESH)
• 3. SATISH KUMAR JAIN S/O SHRI LATE KAWARCHAND JAIN, AGED ABOUT 61 YEARS, R/O NEAR NILKANTH COLONY 64 -A RADHA NAGAR INDORE TEHSIL AND DISTRICT INDORE (MADHYA PRADESH)
• 4. VIPINCHANDRA JAIN S/O SHRI LATE NATTHUSA JAIN, AGED ABOUT 73 YEARS, R/O H. NO. 109, SCHEME NO 71, SECTOR B, INDORE TEHSIL AND DISTRICT (MADHYA PRADESH)

.....RESPONDENTS

(BY SHRI AVINASH ZARGAR - ADVOCATE ON CAVEAT)

This petition coming on for admission this day, the court passed the

following:

ORDER

These petitions originate from order dated 12.05.2023, passed by learned

First District Judge, Khandwa (M.P.), refusing to entertain objections to the

execution of decree dated 11.04.2014.

2. Petitioners' case is that petitioners are legal heirs of Jitendra Jain. The suit property was undivided Hindu Family Property between three brothers, namely, Kavarchand, Jinendra and Vipin. Vipin Jain is surviving, whereas, legal heirs of Kavarchand and Jinendra are available on record.

3. It is an admitted fact that Kavarchand had moved an application for partition of undivided Hindu family, in which a preliminary decree was passed and then final decree was passed on 11.04.2014.

4. After passing of the final decree, legal heirs of Kavarchand gave a power of attorney in favour of certain persons for their share.

5. It is submitted that in terms of the provisions contained in Section 4 of the Partition Act, 1893, petitioners being a co-share holder have a peremptory right to purchase share of a co-owner and to that extent any alienation of the share of Shri Kavarchand or his legal heirs is contrary to law. Petitioners had moved an application seeking to exercise his peremptory right to purchase share of the legal heirs of Shri Kavarchand, but that has been rejected. Hence, these Misc. Petitions.

6. Reliance is placed on the judgment of Supreme Court in Ghantesher Ghosh Vs. Madan Mohan Ghosh and other [(1996) 11 SCC 446]. Reading from the said judgment, it is submitted that the Executing Court does not become functus of icio after passing of the final decree, but on the contrary, its role remains effective till the decree passed by it gets fully executed and implemented.

7. Taking this Court through this judgment, it is submitted that right of peremptory rights could have been exercised not only at the stage of passing of the final decree as suggested by Shri Avinash Zargar, but even thereafter, before

3

the decree is fully executed and satisfied.

8. In view of such facts, both the parties are in agreement that these petitions can be disposed of with a direction that the petitioners herein shall given their offer before the Executing Court within some reasonable time and the Executing Court after passing on that offer to the other co-sharers or the power of attorney holder of one of the co-sharers shall decide the rights of the petitioners in terms of the judgment of Hon'ble Supreme Court in Ghantesher Ghosh (supra), within some reasonable time.

9. In view of such agreement, Shri Raghuwanshi, admits that he will not be pressing other grounds taken by him before the Executing Court. He shall furnish his offer within fifteen days from today. Concerned Executing Court shall get the offer evaluated and will determine the market value of the suit property. If offer given by petitioners is found to be lower than the market value of the property, then they will be given one chance to revise his offer equivalent to or above the market value. If petitioners revise their offer equivalent to or above the market value, then orders will be passed in accordance with law and, if, it is found that petitioners are not willing to revise their offer upto the market value or more than the market value, then respondents will be free to exercise their right of alienating the property in favour of strangers. Let this exercise be completed within a period of three months.

10 In above terms, Misc. Petitions are disposed of.

(VIVEK AGARWAL) JUDGE

A.Praj.