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Nitish Chandra and anr. Vs. Promode Kumar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 19 of 1951
Judge
Reported inAIR1953Cal18,56CWN375
ActsPartition Act, 1893 - Sections 2, 3 and 8
AppellantNitish Chandra and anr.
RespondentPromode Kumar and ors.
Appellant AdvocateSankar Banerjee, Standing Counsel, ;A.N. Roy, ;Jaineswar Majumdar, ;Benoy Krishna Ghosh and ;Mihir Kumar Sarkar, Advs.
Respondent AdvocateAtul Chandra Gupta, ;Indu Prokash Chatterjee, ;Nirmal Chandra Chakrawarti, ;Robindra Nath Mitra and ;Anukul Chandra Dutta, Advs. (for No. 1), ;Saroj Kumar Chatterjee and ;Sudhir Chandra Majumdar, Advs
DispositionRevision allowed
Cases ReferredAngamuthu Mudaliar v. Eatna Mudaliar
Excerpt:
- .....it appears that this petition was supported by some other co-sharers.5. on 25th january 1950, the learned subordinate judge recorded an order which runs as follows :'co-sharers owning five-sevenths share are now pressing for sale. the commissioner was asked to explore the possibilities of partition when the four-sevenths co-sharers-wanted to take a joint allotment. as that arrangement has failed, i do not consider that partition will be feasible .... i therefore direct a sale of the bhowanipore property.'6. this order was evidently made under section 2,. partition act.7. on 8th july 1950, plaintiffs l and 2 filed an application for buying up the shares of the co-sharers at whose instance the order for sale under section 2, partition act was made, and this application was filed under the.....
Judgment:

Lahiri, J.

1. This is an appeal by plaintiffs 1 and 2 in a suit for partition, and it is directed against an order, dated 8th July 1950, made by Sri P.N. Lahiri, Subordinate Judge, First Court, 24 Parganas, refusing the application of plaintiffs 1 and 2 under Section 3, Partition Act (Act no. 4 of 1893).

2. The subject-matter of dispute is premises no. 25A, Harish Mukherjee Road, which is the dwelling house of the parties. A preliminary decree was passed on. 25th January 1949, holding that plaintiffs l, 2 and 3, and defendants l, 2 and 6 had one-seventh share each in the dwelling house, and defendants 3, 4 and 5 jointly had , one-seventh share.

3. After the passing of the preliminary decree, the Court appointed a Commissioner for the purpose of ascertaining whether the dwelling house could be partitioned amongst the seven co-sharers. The Commissioner submitted a report stating that it was not possible to divide the dwelling house by metes and bounds into seven allotments. Some of the co-sharers' agreed to take a joint allotment before the Commissioner but two of them subsequently resiled from that position.

4. On 14th January 1950, defendant 2 filed a petition with a prayer that the entire house should be put up to sale under Section 2, Partition Act; and it appears that this petition was supported by some other co-sharers.

5. On 25th January 1950, the learned Subordinate Judge recorded an order which runs as follows :

'Co-sharers owning five-sevenths share are now pressing for sale. The Commissioner was asked to explore the possibilities of partition when the four-sevenths co-sharers-wanted to take a joint allotment. As that arrangement has failed, I do not consider that partition will be feasible .... I therefore direct a sale of the Bhowanipore property.'

6. This order was evidently made under Section 2,. Partition Act.

7. On 8th July 1950, plaintiffs l and 2 filed an application for buying up the shares of the co-sharers at whose instance the order for sale under Section 2, Partition Act was made, and this application was filed under the provisions of Section 3, Partition Act. The Court below held that as there had already been an order under Section 2, Partition Act, the application under Section 3 of the said Act was not maintainable,, and it accordingly rejected that application. Against this order, plaintiffs 1 and 2 have filed the present appeal.

8. On behalf of the respondent, Mr. Gupta has raised a preliminary objection as to the maintainability of the appeal. It has been argued that an order for sale made under Section 3, Partition Act, is to be deemed to be a decree under Section 8, Partition Act, but an order rejecting an application under Section 3 cannot be said to be a decree within the meaning of Section 8.

9. In support of this proposition, Mr. Gupta has relied upon the decision in Bhuban Mohan v. Brojendra Chandra, 45 cal. w. N. 74, where a Division Bench of this Court has held that there is nothing in Section 8, Partition Act, to indicate that an order rejecting an application for sale should be deemed to be a decree. Although this was a case under Section 4, Partition Act, we think that the reasons given by the learned Judge apply with equal force to the case of an order rejecting an application under Section 3, Partition Act. We accordingly uphold the preliminary objection and hold that the appeal is not maintainable.

10. The next question is whether the memorandum of appeal is to be treated as an application for revision under Section 115, Civil P. C. In the circumstances of this case, we have come to theconclusion that we should give the appellants an opportunity of treating the memorandum of appeal into a petition of revision, and we have heard the learned Advocates on both sides on that footing.

11. On behalf of the petitioners, it is contended that the learned Subordinate Judge failed to exercise a jurisdiction vested in him by law ,in coming to the conclusion that an application under Section 3, Partition Act, does not lie after an order for sale has been made under Section 2 of the Act.

11a. Section 3(1), Partition Act, runs as follows :

'If, in any case in which the Court is requested under the last foregoing section to direct a sale, any other shareholder applies for leave to buy at a valuation the share or shares of the party or parties asking for a sale the Court shall order a valuation of the share or shares in suchmanner as it may think fit and offer to sell the same to such shareholder at the price so ascertained. . . .'

12. On a plain reading of the section, it seems to us that an application under Section 3 can be filed after the request has been made to the Court under Section 2, Partition Act. The section does not provide for any limit of time after which the application cannot be entertained. In these circumstances, on a plain reading of the section we would hold that an application under Section 3 could be made at any time after the request is made under Section 2 and before a sale has actually been held under Section 2.

13. Mr. Gupta appearing for the opposite parties has argued that an order under Section 2, Partition Act, is a decree, and if that decree is not set aside by appropriate proceedings, it cannot be set aside merely by an application under Section 3. We are afraid that we are unable to accept this view. An order under Section 2, Partition Act, is dependent upon a further order made under Section 3 of the said Act. If the Court makes an order under Section 3, the order for sale under Section 2 will disappear.

14. Reliance is also placed upon the decision of the Madras High Court in Angamutku Mudaliar v. Ratna Mudaliar, 48 Mad. 920, where it has been held that the proper time to apply under Section 3 is after the request has been made by co-sharers owning a moiety share or upwards that the property should be sold under Section 2, and 'before a Court makes an order under Section 2.' In our opinion, this decision proceeds upon a narrow construction of Section 3. The words, 'before a Court makes an order under Section 2,' are not to be found in Section 3. All that Section 3 requires is that the application should be filed after a request has been made by the co-sharers under Section 2 of the Act. In the absence of any restrictive provision in Section 3, we are unable to hold that the limiting point of time when the application should be made under that section is the date on which the order under Section 2 is made. We are accordingly unable to accept the view of the Madras High Court as to the scope of Section 3, Partition Act.

15. The view as to the scope of Section 3, Partition Act which we have taken is justified by the decision of this Court given by my learned brotherMookerjee J. in Manik Lal v. Pulin Behari, : AIR1950Cal431 , where after a review of the decisions of this and other High Courts and the different sections of the Partition Act, my learned brother came to the conclusion that the provisions of Sections 2, 3 and 4, Partition Act should be liberally construed, and it was definitely held in that case that there is no reason why before the sale actually takes place under Section 2, Partition Act, it will not be open to the co-sharers to exercise the option which is given to them under Section 3 of the Act.

16. We accordingly hold that the view taken by the Subordinate Judge as to the scope of Section 3, Partition Act, is wrong. The application for revision must be allowed and the order of the learned Subordinate Judge, dated 8-7 1950, should be set aside. The learned Subordinate Judge is directed to make a valuation of the shares of the parties who asked for sale and to offer to sell the house to plaintiffs 1 and 2 at the price so ascertained.

17. The valuation which was made by the commissioner was for the purpose of sale under, Section 2, Partition Act. That valuation cannot be accepted for the purpose of sale under Section 3. This valuation under Section 3 must be made afresh by the appointment of a commissioner. On receipt of the commissioner's report, the learned Subordinate Judge will hear the parties on the question of valuation and fix a valuation under Section 3, Partition Act.

18. As the petitioners have misconceived their remedy, they are not entitled to any costs of this Court.

R.P. Mookerjee, J.

19. I agree. As I havealready expressed my views in an earlier decision in Manilc Lal v. Pulin Behari, : AIR1950Cal431 , I shall add only a few words.

20. The only question raised in the case before us is whether after an order has been made under Section 2, Partition Act, it is competent for the Court to entertain an application under Section 3 of the same Act. There is no doubt that the jurisdiction of the Court to entertain an application under Section 3 begins only after a request has been made, as envisaged in Section 2 of the Act. There is no other limit put under Section 3 as to within which time such an application may be made. Reliance has been placed upon Angamuthu Mudaliar v. Eatna Mudaliar, 48 Mad. 920, and it appears that the learned Judges introduced certain words into Section 8 to limit the time within which such an application can be made.

21. It is one of the fundamental rules of interpretation that the sections should ordinarily be interpreted as they stand without the addition of any word. If Section 3, Partition Act, can reasonably be interpreted without the importation of such words it will not be proper for the Court to introduce limitations based upon such new words so as to make it impossible for an application to be made after a particular date.

22. As has been pointed out by my learned brother any time before the sale, directed under Section 2, actually takes place^ it is open to the Court to entertain an application under Section 3 and to pass a proper order if the conditions imposed in Section 3 are satisfied. The very purpose for which the provisions contained in Sections 2, 8 and 6, Partition Act, were introduced was to give a special privilege to the co-sharers over an outsider coming into the picture, even though the interest of the cosharers as a body might have been better served by not introducing the provisions as contained in Sections 3. 2 and 3. It is not for us to consider whether such provisions ought to have been made by the Legislature. We are required only to interpret the provisions, and to give effect to the intention of the Legislature. When there is no restriction imposed by the Legislature, it is not competent for the Court to introduce such restrictions in Section 3. An application under 8. 3 may be entertained by the Court on fulfilment of the conditions imposed therein until and unless the sale has already taken place.

23. I agree with the order and directions given for fixing the valuation anew. The valuation which was fixed previously was for the purpose of having a reserve price over which outsiders would be required to bid. In the case of a sale under Section 3, the co-sharer becomes entitled to get the property at the valuation fixed by the Court. That requires a very careful decision by the Court as the interest of all the co-sharer a must be borne in mind when fixing such a price for the purpose of Section 3. It is, therefore, only reasonable that the learned Subordinate Judge will take further steps for fixing the price under Section 3 as provided under the law. He will also give an opportunity to the parties to be heard before he fixes the price as under that section.


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