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Kashi Nath Bhatt and ors. Vs. Atma Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. Nos. 510 and 616 of 1971
Judge
Reported inAIR1973All548
ActsPartition Act, 1893 - Sections 4
AppellantKashi Nath Bhatt and ors.
RespondentAtma Ram and ors.
Appellant AdvocateSidheshwari Pd., Adv.
Respondent AdvocateR.B. Singh, Adv.
DispositionRevision dismissed
Excerpt:
.....on all the four sides had an area of one and a half bighas and had a building and pucca well over one biswa land. the emphasis clearly is on the overall circumstances which in the judicial discretion of the court, have to be kept in view while fixing the valuation. suppose lust after receiving summons of a suit for partition of a house which, is admittedly a dwelling house to which the provisions of section 4 are attracted, the defendant deposits in cash the price representing the plaintiff's share, accepting the valuation made by the plaintiff himself of his share in the plaint and prays for the benefit of section 4. a decree is passed but the plaintiff does not abide by it and prolongs the litigation by filing unsuccessful appeals or taking recourse to frivolous proceedings.ordern.d. ojha, j. 1. atma ram filed a suit for partition of a dwelling house and land appurtenant thereto on november 1, 1950. he claimed one third share being a purchaser from the co-sharer of that share. the suit was contested, inter alia on the ground that the defendants were the owners of the remaining two third share and were entitled to the benefit of section 4 of the partition act, 1893 (act 4 of 1893). the suit was decreed in june 1959. it appears that the benefit of section 4 of the partition act was not given to the defendants. on appeal filed by them that benefit was given by the appellate court on april 16, 1960. the decree passed on april 16, 1960 contained a direction to the effect that the valuation of the plaintiff's share which is one third in the property in suit be.....
Judgment:
ORDER

N.D. Ojha, J.

1. Atma Ram filed a suit for partition of a dwelling house and land appurtenant thereto on November 1, 1950. He claimed one third share being a purchaser from the co-sharer of that share. The suit was contested, inter alia on the ground that the defendants were the owners of the remaining two third share and were entitled to the benefit of Section 4 of the Partition Act, 1893 (Act 4 of 1893). The suit was decreed in June 1959. It appears that the benefit of Section 4 of the Partition Act was not given to the defendants. On appeal filed by them that benefit was given by the appellate Court on April 16, 1960. The decree passed on April 16, 1960 contained a direction to the effect that the valuation of the plaintiff's share which is one third in the property in suit be determined while preparing such final decree. Atma Ram filed a second appeal in this Court which was dismissed on October 17, 1966. A review petition filed by him was dismissed on August 22, 1968. Thereafter, in proceeding which were initiated for prepartion of the final decree an application was made by the plaintiff Atma Ram wherein it was stated that in view of the fact that the defendants had subsequent to the passing of the preliminary decree sold away portions of the land appurtenant to the house to strangers they were consequently not entitled to the benefit of Section 4 of the Partition Act. It was also asserted in the said application that in case the defendants were still held entitled to the benefit of Section 4 aforesaid the value of the plaintiff's share should be determined in accordance with the market value of the property sought to be partitioned as it existed on the date of the preparation of the final decree inasmuch as the prices had considerably gone up during the last about 20 years, that is since the institution of the suit. The trial Court decided this application by its judgment dated April 5, 1971. It repelled the contention of the plaintiff that the defendants were not entitled to the benefit of Section 4 on account of their having sold portions of the land appurtenant to the dwelling house. It, however, upheld the plaintiff's claim that the value of his share should be determined on the basis of the market value of the property in dispute as it existed on the date of the preparation of thefinal decree. Both the parties have attacked the said judgment the defendants by filing Civil Revision No. 510 of 1971 and the plaintiff by filing Civil Revision No. 616 of 1971. Both these revisions have been heard together.

2. Section 4 of the Partition Act reads:

'4. Partition suit by transferee of share in dwelling house:--

Where a share of a dwelling house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition, the Court shall, if any member of the family being a share-holder shall undertake to buy the share of such transferee make the valuation of such share in such manner as it thinks fit and direct the sale of such share to such share-holder, and may give all necessary and proper directions in that behalf. (2) If in any case described in Sub-section (1) two or more members of the family being such share-holders severally undertake to buy such share, the Court shall follow the procedure prescribed by Sub-section (21 of the last foregoing section.'

Sub-section (2) of the last foregoing section, namely, of Section 3 reads:

'2- If two or more share-holders severally apply for leave to buy as provided in Sub-section (1). the Court shall order a sale of the share or shares to the share-holder who offers to pay the highest price above the valuation made by the Court'.

3. The principle underlying the provisions of Section 4 is that the members of a family to which a house belonged should have an opportunity of buying off the stranger who has become a co-sharer in the house. See Lala Dwarka Das v. Godhana : AIR1939All313 and Salim Ullah v. Faqir Ullah : AIR1948All142 .

4. While interpreting the provisions of Section 4 it has to be kept in view, as has been observed by a Bench of this Court in Iliyas Ahmad v. Bulaqi Chand, (1917) 15 All LJ 677 = (AIR 1917 All 2} that even though this section was enacted for the benefit of the defendants in a partition suit it is equally true that it involved a statutory interference with the legal rights of the plaintiff end it is not unreasonable it should be strictly construed so as to limit that interference. In order to claim the benefit of Section 4 the defendants are under an obligation to pay to the plaintiff such value for his share as may be determined bv the Court. It is in this background that the respective contentions made by counsel for the parties have to be considered.

5. In so far as the plaintiff's claim that the defendants are no longer entitled to the benefit of Section 4. on account of their having sold away portions of the land appurtenant to the dwelling house is concerned. I am clearly of the opinion, that on the plaintiff's own allegations made in the affidavit filed by him on December 5, 1970, the defendants cannot be denied the said benefit. It was stated therein that the property sought to be partitioned was bounded by walls on all the four sides had an area of one and a half Bighas and had a building and pucca well over one biswa land. It is thus apparent that the dwelling house stands constructed only over one biswa of the land in dispute, the total area of which is one and a half Bighas. Keeping in view the principle of Section 4, as pointed out above, it cannot be said that the defendants have ceased to be entitled to the benefit conferred on them by the said section simply because they have transferred a portion of the land appurtenant to the dwelling house. It is not the plaintiff's case that any portion of the dwelling-house itself has been transferred to a stranger. Consequently, even though the plaintiff may be entitled to have the equities adjusted resulting from the conduct of the defendants in selling away portions of the land appurtenant to the dwelling house after the passing of the preliminary decree the defendants cannot be denied the benefit of Section 4 of the Partition Act. The revision filed by the plaintiff has. therefore, no substance.

6. Haying heard learned counsel for the parties at some length I am of the opinion that even the defendants' revision has no substance. Learned counsel for the defendants argued that on a plain reading of Section 4 it was apparent that the valuation of the share of the plaintiff was to be made on the basis of the market value of the property as it existed on the date of the institution of the suit and not on the date of the preparation of the final decree. He emphasised upon the use of the present tense in the phrase 'and such transferee sues for partition' and on the phrase 'the Court shall ..... make the valuation of such share in such manner as It thinks fit .....'

7. He also placed reliance on Bhikari Beheiri v. Dharmananda Natia : AIR1963Ori40 .

I find nothing in Section 4 from which it may be possible to draw an inference that the section restricts the direction of the Court to fix the value of the plaintiff's share with the reference to the date of the institution of the suit. In fact the section does not speak of any date which is to be taken into consideration for fixing the valuation. The emphasis, on the other hand, which has been placed in Section 4 is on the fixation of a fair value of the plaintiff's share for which the defendant is to buy out the plaintiff's interest in the property sought to be partitioned. This would be apparent from the use of the words 'in such manner as it thinks fit'. Counsel for the defendants submitted that these words refer only to the procedure of fixing the valuation. On this interpretation the aforesaid words become almost redundant for even if these words were not there and the section had only provided that the Court shall make a valuation of the plaintiff's share and direct the sale of such share to the share-holder undertaking to buy the share of the plaintiff, the Court would still have the jurisdiction to take recourse to every permissible procedure for fixing the valuation of the plaintiff's share. It is, therefore, clear that the emphasis which has been put by the Legislature is not on the procedure of fixing the value of the plaintiff's share e.g. getting the property evaluated by a Commissioner or taking evidence by way of exemplars etc. The emphasis clearly is on the overall circumstances which in the judicial discretion of the Court, have to be kept in view while fixing the valuation. The purpose of Section 4 is only to safeguard the defendants from a stranger being forced upon them into their dwelling-house, and not to provide either party with an opportunity of unjust enrichment.

8. Following may be cited as a few among various circumstances which may be. in the ends of justice and to give to the plaintiff a fair price of his share, necessary to be taken into consideration while fixing the valuation of his share:

(1) If the provisions of Section 4 do not apply the plaintiff will be given a specific portion in the dwelling-house sought to be partitioned after a final decree has been passed, and consequently if the market value of the said house has gone up between the dates of the institution of the suit and passing of thet final decree, the plaintiff on getting an actual share in the house will get the benefit of its valuation as it stands on the date of the final decree.

(2) The final decision in the suit for partition may have been inordinately delayed on account of the defendant's own conduct with the result that he succeeded to remain in exclusive enjoyment of the entire dwelling-house including the share of the plaintiff during the pendency of the suit and during this period there was considerable rise in the price of the house.

(3) Even if the conduct of the defendant is not blameworthy there may be other unforeseen circumstances which may have the effect of a sudden rise in the value of the dwelling-house. For example, the dwelling-house may be situated in a village on the date of the suit. Soon thereafter and long before the preparation in the said village with the result that the market value of the dwelling house goes up hundred times. If the case falls within one of the aforesaid categories, or in any other similar category it would be inequitable to fix the valuation of the plaintiff's share with reference to its market-value on the date of the suit.

9. There may be cases, however, where different considerations may arise. Suppose lust after receiving summons of a suit for partition of a house which, is admittedly a dwelling house to which the provisions of Section 4 are attracted, the defendant deposits in cash the price representing the plaintiff's share, accepting the valuation made by the plaintiff himself of his share in the plaint and prays for the benefit of Section 4. A decree is passed but the plaintiff does not abide by it and prolongs the litigation by filing unsuccessful appeals or taking recourse to frivolous proceedings. The money remains in deposit and during the pendency of the litigation the defendant has to further spend considerable amount on maintenance of the house or even makes Improvements; it may become necessary to adjust the equities without doing which it may be inequitable to the defendant to straightway force him to pay higher price, while which may be prevailing, say after 20 years. Likewise, if after the suit has been instituted and the defendant has claimed the benefit of Section 4 at the earliest opportunity the dwelling-house which may be of a very high valuation is substantially destroyed by vis major and the defendant still insists upon the benefit of Section 4 being given to him in regard to the small portion which survives the destruction it will be inequitable to the defendant to force him to pay the price of the plaintiff's share as it existed on the date of the suit. If a substantial portion of the building has been destroyed by vis major and not because of any fault of the defendant who is in possession, it is but expedient that all the co-sharers should bear the brunt of the destruction in proportion to their share.

10. As held by a Division Bench of this Court in the case of Ilias Ahmad, (19171 15 All LJ 677 = (AIR 1917 All 2) (supra) since Section 4 involves statutory interference with the legal rights of the plaintiff it is reasonable that it should be strictly construed so as to limit thatinterference. In the case of Bhikarij Behera (supra) relied upon by the counsel for the defendants the suit for partition had been filed long after the plaintiff had purchased a share in the dwelling house. The defendants were emphasising that the valuation of the plaintiff's share should be fixed on the basis of the sale deed in his favour. It was while repelling this contention that it was held that Section 4 referred to the market value as prevailing on the date of the suit and not on the date of the sale. In the said case the question as to whether the price should be fixed on the basis of the market value as prevailing on the date of the suit or on the basis of the market value as prevailing on the date of the passing of the final decree had not fallen for consideration and, therefore, the said decision is not of much assistance for deciding the controversy raised in the present case.

11. In Subal Chand v. Gostha Behari Das, (1956) 60 Cal WN 829 it was held that the sale by the stranger to the co-sharer being in the nature of a forced sale the valuation has to be fixed with great care and caution so as not to cause any hardship to the parties. This dictum was approved even in the case of Bhikari Behera : AIR1963Ori40 (supra) relied upon by the learned counsel for the defendants. In Brij Mohan Lal v. Mt. Mahbuban. : AIR1930All509 a Bench of this Court held that if a member of an undivided family who was a share-holder in the dwelling-house sought to be partitioned undertakes to pay the plaintiff's share it is necessary for a Court to value the share, the valuation to be decided in any manner that the Court thinks fit. It is one of the settled principles of law that in a suit for partition equities have to be adjusted at the time of the preparation of the final decree and in my opinion therefore the clear import of the words 'make a valuation of such share In such manner as it thinks fit' in Section 4 is that at the time of preparation of the final decree when the equities are to be adjusted, the value of the plaintiff's share has to be fixed and while fixing the valuation the Court has to take Into consideration the circumstances of each case, the conduct of the parties and other relevant factors which may be necessary in order to fix the valuation of the plaintiff's share for which he may be forced to sell his share to the defendants. Nothing has been brought to my notice which may disentitle the plaintiff to claim that the valuation of his share should be fixed with reference to the market value of the property as it existed on the date of the preparation of the final decree.

12. In the result I find no force in the defendants' revision too.

13. Both the revisions are, therefore, dismissed. The parties will bear their own costs in each revision.


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