1. The defendant in 0. S. No. 439 of 1967, Sub-Court, Coimbatore, is the petitioner in this civil revision petition. That suit was instituted by the respondent herein for partition and separate possession of his 66/80 share in respect of a house. The petitioner, his mother, his two brothers and four sisters were the owners of that property and all of them, excepting the petitioner, executed sales of their shares in the house in favour of the respondent herein, who was stranger to the family. Pursuant to such sales and claiming that the respondent was in joint possession of the house along with the petitioner, the suit for partition, referred to earlier, was instituted by the respondent herein on 5-9-1967. On 16-12-1968, the parties put into court a joint memo to the effect that a preliminary decree for partition may be passed; but the question of past and future mesne profits may be relegated to the final decree proceedings. In accordance with that, the learned Subordinate Judge, Coimbatore, passed a preliminary decree as under
(1) That the plaint mentioned properties more fully described hereunder be divided into 80 equal shares and the plaintiff be allotted 66 such shares and the possession of the same be delivered to the plaintiff and
(2) that question of past and future mesne profits be relegated to final decree proceedings and that each parties do bear his own costs'.
Pursuant to the preliminary decree, a Commissioner was appointed and he had submitted a report and in accordance therewith, lots were cast and a final decree was also passed on 23-12-1969. Nearly eight years thereafter on 22-11-1977, the petitioner filed on application purporting to be under Section 4 of the Partition Act, 1893, praying that the share of the respondent may be valued and directed to be sold to the petitioner. That application was opposed by the respondent herein on the ground that inasmuch as the final decree in the suit had been passed and an allotment Of properties had also been made, the application under S. 4 of the Partition Act would not lie. The learned Subordinate Judge sustained this objection of the respondent and held that the petition filed by the petitioner herein under Sec. 4 of, the Partition Act is not maintainable and dismissed the same,
2. In this civil revision Petition, the learned counsel for the Petitioner contends that an application under Section 4 of the Partition Act can be filed at any tune, even after the passing of the final decree, but before possession of the Properties allotted there under is taken. On the other hand the learned counsel for the respondent contends that the passing of a final decree In a partition suit puts an end to the list before the court and the title of the parties to whom the properties have been allotted there under becomes indefeasible and therefore, no application would lie after the Passing of the final decree in the suit. Before proceeding to consider these rival contentions, the relevant statutory Provision viz., Section 4 of the Partition Act may be noticed. That section runs an under:
4 (1). 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 undertakers -buy the share of such h transferee, make a valuation of such s are in such manner as it thinks lit and direct the sale of such share 'to such shareholder, 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 shareholders severally undertake to buy such share, the Court shall follow the procedure prescribed by sub-section (2) of the last foregoing section'.
Before an application under Section 4 can be successfully maintained, the following conditions must be satisfied: (1) the suit must relate to the dwelling house of an undivided family, (2) a share in such a dwelling-house must have been transferred in favor of a stranger to the family; (3) that stranger must have sued for partition and (4) any member of the family, being a shareholder, should have claimed or undertaken to buy the share of such transferee. If the above conditions are satisfied, then' the Court shall make a direction for the valuation of such share and direct the sale of such share to such shareholder and give other necessary directions in this regard. Sub-section (2) of Section 4 is not really material, for purposes of the present controversy. Section 4 which provides for the purchase of the share of the transferee by a member or members of the transferor's family comes into play only on the institution of a suit for Partition. Indeed, there is n indication as such, in the words of the section, as to when the application under Section 4 can be successfully maintained Even so, a provision as is found in Section 4 cannot be so interpreted as to do away with rights, which have become confirmed and final, under a decree court. If, an application under Section can be permitted to be maintained at any point of time, irrespective of the attainment of finality of rights of parties to the property dealt with and allotted under the decree, then, it would mean that Sec. 4 is in the nature of an enabling provision which permits going behind a final and ultimately, undoing it That the right under Section 4 comes into existence and can be exercised only on the institution of a suit -for partition is clear and therefore, before the court can proceed to act under Section 4 with reference to any Particular Property, It is obvious that the -court must have seizing matter of the suit as well as the share of the party against whom the application is filed. Only in that case, the court can direct the sale of a share in favour of a member of the undivided family. In a case where the final decree is passed as in the instant case and had remained unassailed in any manner for nearly 8 years, it is doubtful whether the court can be said to have retained its seisin over the list in order to enable the party to invoke -Section 4 on the basis of which the relief could be afforded. Normally, a suit for partition is deemed to be pending till the passing of the final decree by which specific and definite items of properties are allotted to the respective parties or specific portions of a property are allotted to the parties. In such a case, on the passing of the final decree and the allotment of the properties to the respective parties there under, the court really becomes functus officio and does not retain in itself any further control over the proceeding. In such a context therefore, after the passing of a final decree as such, the court cannot act under Section 4 of the Partition Act and proceed to re-write the final decree as it were. Undoubtedly, cases wherein an appeal has been preferred against the final decree stand on a different footing. Having been appealed against, the final decree proceedings should be deemed to be pending and that precisely is the reason for Section 4 being permitted to be invoked even at the appellate stage in some cases. Apart from such cases. where a final decree had been passed by the trial court, it appears that there is no question thereafter -of an application being entertained under Section 4 of the Partition Act to nullify the final decree which had become final several years back. It is also necessary to bear in mind the difference between cases where title to the property had become indefeasible and cases where possession of the properties so allotted under the final decree are sought to be taken. The object of Section 4 is to put an end to the title of the transferee to the share of the property purchased from the other members of the family and make it available to them and therefore, in that context, the question of defeating the title of the purchaser by resort to S. 4 assumes importance rather than the question of possession of the property. It must also be stated that on the allotment of properties under a final decree, the title of the person to whom that property is, allotted becomes indefeasible. Thereafter, it is, up to such a person to, secure possession of the property so allotted to him by resorting to execution proceedings in relation to that property. The circumstance that particular person had not resorted to secure possession of the property allotted to him under a Anal decree in a partition really does not touch upon the question of the applicability of Section 4 which, as stated already, has an impact on the question of title to the property and indeed extinguishes by the operation of that section the title of the person so entitled to a share. Therefore, non-obtaining of possession of the properties allotted under the final decree cannot be pressed into service to claim the benefit of the application of Section 4 of the Partition Act. It is open to a person to whom the property has been allotted under a final decree either to resort to execution for purposes of obtaining delivery or not. In some cases, it might even be that', there is a surrender of the property without resort to execution. Therefore, it cannot be said that in all cases where the final decree had not been executed and possession taken, Section 4 of the Act can be given effect to. Prima facie, these considerations impel me to hold that the application filed by the petitioner eight years after the passing of the final decree in certainly not maintainable.
3. However, the learned counsel for the petitioner as well as the respondent have invited my attention to certain decided cases of other Courts in this regard. The learned counsel for the petitioner relied upon the decision in Satya Narayan Chakravarty v.Biswanath Paul, 1970 74 CWN 871. In that case a final decree was drawn up on 4-9-1957, and defendant in that suit, an undivided member of the family and a shareholder, filed an application under Section 4 of the Partition Act on 6-3-1958, when the decree was pending execution. In considering the question of the maintainability of that application, the court took into account the Scheme of the Act which according to the court, was to prevent the introduction of a foreign element into the group of family members and to maintain homogeneity in respect of the entire family and held that before possession of the allotted property is delivered pursuant to the final decree, an application under S. 4 is maintainable. As pointed out already, the scope and effect of Section 4 is to do away with the title of the stranger purchaser and the question therefore of his taking possession or not is not germane. It may also be pointed out that the title of the stranger purchaser does not become complete or effective only on his taking possession of the property. Equally, it must be remembered that if the application under Section 4 of the Partition Act can be maintained after the final decree, it will have the effect of compelling the purchaser of the undivided share to accept money equivalent in lieu of the share of the property in specie, which would be directly opposed to the terms of the final decree as such, which has not in any manner been either modified or altered by any procedure known to law. In addition, the view taken in this decision runs counter to the expression of opinion in Birendra Nath v. Snehalata Devi : AIR1968Cal380 to which attention apparently had not been drawn. Therefore, it is not possible to accept the reasoning in the decision referred to by the learn d counsel for the petitioner. To similar effect is the judgment in Harendra Nath Mukharjee v. Shyam Sunder Kuer : AIR1973Pat142 . In that case also, the application under Section 4 was made in the course of the execution proceedings before the executing court and the court had applied the principles in the decision in Satya Narayan Chakravarty v. Bishwanath Paul (74 CWN 871) referred to above. The reasons for not accepting that view as correct have already been indicated and the same would hold good in respect of this decision as well. On the other hand in Sheodhar Prasad Singh v. Kishun Prasad Singh (AIR 1941 Pat 4), Dhavle, J., has held that an application under Section 4 of the Partition Act may be made at the appellate stage or at any stage before the final decree.
In Mst. Mohmadi Begum v. Mohd. Nabi Hadi AIR1955 NUC (All) 4450, a Division Bench of the Allahabad High Court in dealing with the question whether the benefit of an application under Section 4 of the Partition Act can be availed of during the course of execution proceedings after the final decree for partition, held that the executing court must execute the decree as it is found and cannot go behind the same and that any contention that the execution court can meddle with the decree must have clear support of the statute. It was further held that Section 4 of the Partition Act does not say' that the executing court can undo the partition decree and in place of a partition decree, substitute a decree for money equivalent of the partitioned share. The Court also further pointed out that S. 4 contemplates that such an offer should be made at such a stage that the court should have nothing to do with the partition of the share at all and therefore, the benefit of Section 4 could not be given during the execution proceedings after a final decree for partition was passed.
4. In Birendra Nath v. Snehalata Devi : AIR1968Cal380 , referred to earlier a Division Bench of the Calcutta High Court equated the right to resort to an application under Section 4 of the Partition Act to a right of pre-emption. Construing the section, the Court held that on its wording, the right subsists so long as the suit has not been concluded or terminated by an effective final decree for partition. In this view, it was held that an application made at a time when an appeal against a final decree is pending cannot be held to be not maintainable. The learned counsel for the respondent brought to my notice the judgment reported in Kali Kumar Mukerji v. Brahamananda Mukherji, (1908) 7 Cal LJ 98. Though it is stated in the head note that it is only when the suit is for partition, that a member of the joint family may buy out the plaintiff under Sec. 4 of the Partition Act and that he is not entitled to do so when the suit has been decreed and the decree for possession is being executed, a perusal of the report shows that the judgment proceeded on the footing that the case does not fall within See. 4 of the Partition Act at all. This case, therefore, does not in any manner establish the stand taken by the learned counsel for the respondent. On a consideration of the language employed in Section 4 of the Partition Act and its requirements and its scope and object, it is manifest that any application under Section 4 should be filed before the final decree in a partition suit is passed and not later. In this view, the order of the court below is perfectly correct and cannot be assailed in any manner. This civil revision petition fails and is dismissed. No costs.
5. Petition dismissed.