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Lala Dwarka Das Vs. Godhana and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1939All313
AppellantLala Dwarka Das
RespondentGodhana and ors.
Excerpt:
- - it farther directed that if the defendants failed to make the payment within the time fixed, the plaintiff would be entitled to recover possession of the share allotted to him by the amin and subject to the conditions laid down in the report of the amin. he contends that in this case a preliminary decree having been passed, not only by the trial court but also in appeal, the defendants were no longer entitled to make an application under section 4. having heard learned counsel at length, we have come to the conclusion that this contention is not well-founded......both these contentions and has dismissed the appeal.2. so far as the price of the plaintiff's share fixed by the courts below is concerned, the finding is one of fact and cannot be challenged in second appeal. the learned counsel appearing for the plaintiff-appellant has however urged that an application under section 4, partition act, can be made only before a decree in a suit has been passed, and not later. he contends that in this case a preliminary decree having been passed, not only by the trial court but also in appeal, the defendants were no longer entitled to make an application under section 4. having heard learned counsel at length, we have come to the conclusion that this contention is not well-founded. the section itself fixes no stage up to which alone the application.....
Judgment:

Verma, J.

1. The appellant before us was the plaintiff in the suit which was for partition of his share in certain buildings. The plaintiff has purchased the share of one of the members of the family which owned this house. A preliminary decree for partition was passed on 30th January 1933. There was an appeal against that decree by the plaintiff and the Appellate Court made (certain modifications in the preliminary decree. On the record going back to the trial Court for the preparation of a final decree, the amin was appointed as a commissioner for partition and he submitted a report on 14th February 1934. In this report he valued the entire property at a certain figure and made suggestions as to the) manner in which the partition should be carried out. The plaintiff objected to this report. The defendants however put in an application at this stage under Section 4, Partition Act (4 of 1893) undertaking to buy the share of the plaintiff. The defendants accepted the valuation made by the amin and submitted that they were prepared to buy the plaintiff's share in accordance with that valuation. The trial Court, holding that the valuation made by the amin was correct, granted this application and passed a decree in favour of the plaintiff for the recovery of the amount fixed as the price of his share and fixed a date by which the payment had to be made by the defendants. It farther directed that if the defendants failed to make the payment within the time fixed, the plaintiff would be entitled to recover possession of the share allotted to him by the amin and subject to the conditions laid down in the report of the amin. The plaintiff appealed against this decree and raised two points, (1) that the application of the defendants under Section 4, Partition Act, should not have been entertained at the late stage at which it was made, and (2) that, in any case, the price fixed by the trial Court was inadequate. The lower Appellate Court has repelled both these contentions and has dismissed the appeal.

2. So far as the price of the plaintiff's share fixed by the Courts below is concerned, the finding is one of fact and cannot be challenged in second appeal. The learned Counsel appearing for the plaintiff-appellant has however urged that an application under Section 4, Partition Act, can be made only before a decree in a suit has been passed, and not later. He contends that in this case a preliminary decree having been passed, not only by the trial Court but also in appeal, the defendants were no longer entitled to make an application under Section 4. Having heard learned Counsel at length, we have come to the conclusion that this contention is not well-founded. The Section itself fixes no stage up to which alone the application can be made. On the contrary, the language of the Section shows that it can be made at any stage. Bearing in mind the principle underlying the provisions of Section 4, namely that the members of the family to which the house belonged should have an opportunity of buying out the stranger who has become a co-sharer in the house, there seems no valid reason for putting the limitation contended for by the learned Counsel on the right of the defendants as to the time when they should make the application. There is no case of this Court on the point. The High Court of Calcutta has however consistently held that the application can be made at any stage, even after a decree has been passed : vide Khirode v. Saroda (1910) 7 I.C. 436 and Pran Krishna v. Keshab Chandra (1919) 6 A.I.R. Cal. 1055. The same view has been taken in the Bombay High Court : vide Khanderao Dattatraya v. Balkrishna Mahadao (1922)9 A.I.R. Bom. 121. We see no reason to differ from the view taken in these cases. The decision of a learned single Judge of this Court in Abdul Hag. v. Moti Lal (1923) 10 A.I.R. All. 393 has been brought to our notice. It is not necessary to express my opinion as to the soundness of the decision in that case as the point involved there was different from the one which arises before us. For the reasons given above, we dismiss this appeal. We make no order as to the costs of this appeal as the respondents have not appeared.


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