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Gita Debi Saragi Vs. Madan Mohan Masanta and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 238 of 1968
Judge
Reported inAIR1969Ori294; 35(1969)CLT562
ActsPartition Act, 1893 - Sections 4; Code of Civil Procedure (CPC) , 1908 - Order 1, Rule 10 - Order 23, Rule 3
AppellantGita Debi Saragi
RespondentMadan Mohan Masanta and ors.
Appellant AdvocateN. Mukherji, Adv.
Respondent AdvocateR.N. Sinha, Adv.
DispositionRevision allowed
Excerpt:
.....of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as,..........of kishori mohan in respect of the disputed homestead, they were entitled to exercise the right of repurchase under section 4 of the partition act by virtue of their right of residence in the house of defendant no. 1.3. mr. sinha was unable to support the judgment of the learned subordinate judge on the grounds advanced therein. there are no materials that defendant no. 1 acted against the interest of the family. there was contest between the plaintiff and defendant no. 1 regarding valuation. a commissioner was deputed who fixed the value at rs. 400/- per decimal. the plaintiff challenged the value and claimed at a much higher rate. in such a circumstance, if a compromise was entered into fixing the value of the land at rs. 550/- per decimal, it cannotbe said without some other.....
Judgment:

G.K. Misra, J.

1. Deceased Kissore Mohan and defendant No. 1 were brothers. They were separate in status, but their dwelling house was not partitioned by metes and bounds. Subasini (defendant no. 2), widow of Kishori Mohan, transferred undivided 8 annas interest in the disputed house and homestead by a registered sale deed to Gita Debi (plaintiff) on 27-4-62 for Rs. 2000/-. Gita Debi filed T. S. No. 23 of 1963 in the Court of the Subordinate Judge, Balasore, for partition. Defendant No. 1 claimed to repurchase the property sold to the plaintiff under Section 4 of the Partition Act. As to the value of the house, there was contest. Ultimately a compromise petition was filed on 17-1-67 whereby the plaintiff and defendant No. 1 agreed that the value of the homestead would be Rs. 550/- per decimal. It was stated therein that defendant No. 1 would repurchase the disputed homestead within two months of the compromise, failing which the plaintiff would be entitled to partition. This compromise was accepted by the court on 18-1-67. Within the stipulated period defendant No. 1 did not pay the money and did not repurchase the property from the plaintiff. On 4-4-68 Gangamani (wife), Chintamani and Chandramohan (sons) and Sebamani (daughter) of defendant No. 1 filed an application under Order 1, Rule 10 C. P. C. that they should be permitted to intervene and were prepared to repurchase the disputed homestead on payment of proper consideration. This application was accepted by the learned subordinate Judge who allowed them to be impleaded in the partition suit. Against this order the Civil Revision has been filed by the plaintiff.

2. The learned Subordinate Judge held that defendant No. 1 did not act in the interest of the family and that the compromise to purchase the disputed homestead at the rate of Rs. 550/- per decimal which is higher than the rate fixed by the Commissioner which was Rs. 400/- per decimal, establishes the fact that defendant No. 1 did not act in the interest of the family. He further held that even though the wife, the sons and the daughter of defendant No. 1 were not co-sharers of Kishori Mohan in respect of the disputed homestead, they were entitled to exercise the right of repurchase under Section 4 of the Partition Act by virtue of their right of residence in the house of defendant No. 1.

3. Mr. Sinha was unable to support the judgment of the learned Subordinate Judge on the grounds advanced therein. There are no materials that defendant No. 1 acted against the interest of the family. There was contest between the plaintiff and defendant No. 1 regarding valuation. A commissioner was deputed who fixed the value at Rs. 400/- per decimal. The plaintiff challenged the value and claimed at a much higher rate. In such a circumstance, if a compromise was entered into fixing the value of the land at Rs. 550/- per decimal, it cannotbe said without some other evidence that defendant No. 1 acted against the interest of the family. The finding of the learned Subordinate Judge is speculative and cannot be accepted without more solid evi-dence.

4. The view of the learned Subordinate Judge that the wife, the sons and the daughter of defendant No. 1 can exercise the right of repurchase under Section 4 of the Partition Act, because they reside with defendant No. 1 in a portion of the house occupied by him, is also not correct in law. Section 4(1) of the Partition Act runs thus:--

'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 shareholder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as he thinks fit and direct the sale of such share to such shareholder and may give all necessary and proper directions in that behalf.'

It is to be noted that in order to exercise this right of pre-emption the claimant must be a member of the undivided family qua the dwelling house. The wife, the sons and the daughter of defendant No. 1 are undoubtedly members of the undivided family qua the dwelling house. But the further condition to be fulfilled is that, they must also be share-holders. Admittedly those persons are not cosharers of Kishori Mohan or his widow. Kishori Mohan died in a separated status. In respect of the undivided dwelling house his only cosharer is Madan Mohan. The wife, the sons and the daughter of defendant No. 1 cannot there-fore claim any right under Section 4 of the Partition Act.

5. Mr. Sinha last contended that time is not the essence of the contract, and though the period of two months stipulated in the compromise expired the court has got power to extend time. It is not necessary to examine the law relevant on the point as defendant No. 1 to whom opportunity was given to repurchase the property did not ask for any extension of time. Even in this court defendant No. 1 does not appear to ask for extension of time. Time cannot be extended at the instance of persons who have no locus standi to exercise the right of pre-emption under Section 4 of the Partition Act.

6. All the contentions urged by Mr. Sinha fail. The impugned order is set aside and the prayer of the wife, the sons and the daughter of defendant No. 1 P. C. is rejected. The Civil Revision is to be impleaded under Order 1, Rule 10 C, allowed. In the circumstances parties tobear their own costs throughout.


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