1. Defendant No. 1 has filed this appeal against a decision dated the 16th May, 1959 of Sri R, C. Kar, Second Additional Subordinate Judge of Cuttack, in Title Suit No. 21/55.
2. The facts giving rise to this appeal may be stated as follows : One Madhab Behera bad three sons, Kapila, husband of Hira (D-3), Bhikari (D-1) and Durjodhan (D-2). The disputed property is admittedly a residential house situated on the main road at Ranihat, in the town of Cuttack. Madhab Behera was residing in the said premises and on his death his three sons were in possession of the same. Kapila the husband of defendant No. 3 died sometime in 1942 leaving his widow Hira Bewa (defendant 3). Dharmananda Natia the plaintiff in this case obtained a Kabala from defendant No. 3 on 15-6-44 for a consideration of Rs. 100/- in respect of one third share of the disputed dwelling house, his case being that there was a previous partition between Kapila and his two brothers and Kapila, was given the eastern block, Bhikari the, present appellant the western block and Durjodhan was given the middle block and Kapila's widow being in separate possession of the specific one-third-interest sold the same to the plaintiff for legal necessity and delivered possession thereof in usual course.
After the sale deed was executed by Hira, Durjodban instituted a suit in the Court of the Munsiff of Cuttack (O. S. No. 194/47) for setting aside the Kabala executed by Hira in favour of the plaintiff. The said suit having been dismissed both in the trial court as well as in the appellate Court, ultimately came up in Second Appeal (No. 72/50) before Mohapatra, J. who while delivering the judgment on 14-4-54 held that there was no partition by metes and bounds between Kapila and his brothers and that the plaintiff having purchased an undivided interest in the homestead, his only remedy lay in filing a suit for partition in which event defendants Nos. 1 and 2 will have an opportunity of exercising their option to purchase the share of Kapila as contemplated under Section 4 of the Partition Act.
In pursuance of the said decree in second appeal, defendant Nos. 1 and 2 started Execution Case No. 28/55 in the Court of the Munsif of Cuttack, for delivery of possession of the suit property from the present plaintiff and the plaintiff being faced with such a situation filed the present suit on 29-3-55 praying for partition by metes and bounds the one third interest purchased by him from defendant No. 3. In the said suit the plaintiff also claimed that the price of the land having sufficiently gone up, since its purchase, the present price of the land was fixed at Rs. 3000/- so far as the share of the plaintiff is concerned. He further claimed Rs. 2000/- for the improvements made by him on the old house standing previously on the suit land.
3. The defendants resisted the claim on the ground that the valuation and the improvement claimed by the plaintiff were exhorbitant and the plaintiff had not made any improvement so as to entitle him to a sum of Rs. 2000/- as claimed by him. Their further contention was that the disputed property being part of their residential house and the plaintiff-purchaser being a stranger to the family, cannot get possession of the same under Section 44 of the Transfer of Property Act; and in case the plaintiff's Kabala (Ext. 2) is held to be valid and legal, this being a residential house, under Section 4 of the Partition Act, the defendants had a right to purchase the property in suit and were ready and willing to pay such price as may be fixed by the Court under this section.
4. The learned trial court held the suit property to be a residential house and the plaintiff to be a stranger-purchaser and the defendants had every right to purchase the share and fixed a sum of Rs. 2000/- as value thereof, Rs. 1300/-, being the price of the homestead and Rs. 700/- being the valuation of the house standing thereon and directed defendant No. 1 to deposit the sum in Court within two months, so that the plaintiff will execute and register a sale deed in his favour. Failing this, the plaintiff was entitled to recover the one-third share after partition by a Civil Court Commissioner. It is against this decision of the learned Subordinate Judge the present first appeal has been filed.
5. The fact that the suit-property is a residential house standing on the main road at Ranihat, one of the business centres of the city cannot be disputed. In view of the previous decision in the Second Appeal referred to above, it is no longer open to the parties to contend nor was it ever contended that the family separated in 1944 when the sale deed Ext. 2 was executed by Hira in favour of the plaintiff. The sale in favour of the plaintiff is undoubtedly a transfer of share of a dwelling house belonging to Kapila and his brothers and as such the defendant being a member of the family and a joint holder of the property had every right to purchase the same as contemplated under Section 4 of the Partition Act. The only question for consideration therefore is whether the valuation that has been fixed by the trial court is the proper valuation which should be paid to the plaintiff before the defendant can exercise his right to purchase the property. Section 4 of the Partition Act runs as follows :
'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 a 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.'
In view of the importance of that part of the city it cannot be disputed that the valuation has gone up sufficiently high since the date of Ext. 2. As a matter of fact in almost all urban areas the prices have gone up very much high on account of residential and business demands. On the point of valuation, both sides have produced some documents in support of their respective cases, but neither of them is decisive. The learned trial Court after a careful analysis of the documents came to the conclusion that Rs. 1300/- for the homestead and Rs. 700/- for the house would be fair valuation and called upon the defendant to deposit the said amount. Nothing has been shown to us from which we could come to a different conclusion on the question o valuation. On the contrary, in my opinion the valuation made by the trial court may be taken to be comparatively lower considering the importance of the place and situation of the house-site. All the same, I have no reason to differ from the valuation made by the learned trial Court,
6. Mr. B. N. Das, learned counsel for the appellant, contended that the valuation should be on the basis of the sale-deed of 1944 whereas Mr. R. N. Das, counsel for the respondent argued that it should be on the basis of the market value as was prevailing at the time of the institution of the partition suit in 1955. There is, however, no direct authority on this point. Learned counsel for the respondent, however, relied upon a decision of the Nagpur High Court reported in Mst. Sumitra v. Dhannu, AIR 1952 Nag 193 which supports his contention to some extent. In that case the sale took place for Rs. 30/- in the year 1937 whereas the suit was filed in 1943, and their Lordships held :
'The land value has gone up during these years. In the plaint the plaintiff stated the value of the share at Rs. 30/- presumably because he had purchased it at Rs. 30/-. That valuation was not the real market price of the share at the date of the institution of the suit.'
Their Lordships therefore fixed the market value of the suit property at Rs. 75/- having regard to the rise in the land value in recent years. This decision therefore considerably supports the contention of the learned counsel for the respondent. Moreover the wording of Section 4 also gives someguidance on this point. Section 4 contemplates avaluation to be fixed when the transferee files asuit for partition, and the court has been giventhe discretion, to make valuation of the share insuch manner as it thinks fit. In my opinion inthe absence of any decision to the contrary theplain meaning of Section 4 refers to the marketvalue as ruling on the date of the suit and noton the date of sale. With a view to do justiceto the parties, the valuation has to be made soas to be fair both to the stranger-purchaser as also to the co-sharer of the erstwhile undivided joint family. The sale by the stranger to the co-sharer being in the nature of a forced sale, thevaluation has to be fixed with great care and caution so as not to cause any hardship to the parties.In this connection reference may be made to casereported in Subal Chandra v. Gostha Behari, 60Cal WN 829. I have thus no hesitation to holdthat the valuation as fixed by the learned trialCourt is but fair and proper to both sides. In viewof the aforesaid discussion the appeal is bound tofail and is accordingly dismissed and the orderpassed by the learned Subordinate Judge is confirmed. In case the defendant-appellant has notdeposited the amount within the time allowed bythe Court, he is to do the same within two monthsfrom to day, failing which the plaintiff will beentitled to recover his one-third share in the manner directed by the trial Court.
In the result, the appeal is dismissed, but in the circumstances of the case parties to bear their own costs of this Court.
7. I agree.