Skip to content


Sm. Safura Bibi Vs. Ram Prasad Saw and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKolkata High Court
Decided On
Case NumberC.R. No. 2984 of 1975
Judge
Reported inAIR1977Cal207,(1977)1CompLJ55(Cal),81CWN446
ActsPartition Act, 1893 - Section 4 and 4(1)
AppellantSm. Safura Bibi
RespondentRam Prasad Saw and ors.
Appellant AdvocateShyma Prasanna Roy Choudhury, Adv.
Respondent AdvocateSushil Kumar Biswas, Adv.
Excerpt:
- .....make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder and may give all necessary and proper directions in that behalf.'4. on a plain reading of this section, it appears to us that when a stranger purchaser sues for partition, an application under section 4 can be made by any member of the family being a co-sharer undertaking to buy the share of the transferee. on such application, a valuation of such share is to be made in such manner as the court thinks fit and, thereafter, the sale of such share to 'such shareholder' is to be directed by the court and the court may give all other necessary and proper directions. thus the shareholder who applies for pre-emption under section 4 of the partition act must continue and.....
Judgment:

Salil Kumar Datta, J.

1. This Rule was obtained against Order No. 170 dated 9th July, 1975 in a Partition Suit whereby the application of the plaintiff was allowed. The effect of the order is that the defendant No. 2's application under Section 4 of the Partition Act which was earlier allowed stood disallowed in view of some subsequent events. The facts, in short, are as follows:--

On 5th March, 1953 the Partition Suit was filed by the plaintiff who, admittedly, acquired a share of the dwelling house of the defendants. In course of the proceedings, the defendant No. 2 filed an application on 30-4-1957 under Section 4 of the Partition Act, 1893 for purchase of the share of the plaintiff who was, admittedly, a stranger purchaser. This application was allowed on 17-5-1957 when the preliminary decree was also passed. The preliminary decree contained direction on the Commissioner to make a valuation of the plaintiff's share which was determined at two annas six gondas two karas and two krantis and the Court also recorded further directions to the effect that if the amount be paid within 30 days by the defendant No. 2, the plaintiff's interests would vest in her and the plaintiff would execute a kobala in respect of the said share in her favour and the plaintiff's suit for partition would stand dismissed. It appears that on 18-11-1960 the defendant No. 2 transferred her share in favour of her nephew Sheikh Sajahan by a registered Heba-bil-ewaj and, subsequently, Sheikh Sajahan again transferred the said share to the defendant No. 2 by a registered Haba-bil-Ewaj on 22-4-1965. The plaintiff, in the context of the aforesaid facts, made an application for effecting a final decree for partition by metes and bounds and also for a direction that no further steps should be taken for determination of the value of the plaintiffs share as directed earlier by the Court on the defendant No. 2's application under Section 4. This application was allowed, The learned Judge held that there was no necessity for proceeding further regarding the determination of the valuation of the plaintiff's share as the defendant No. 2 had lost her right of pre-emption by virtue of the transfer dated 18-11-1960. The present Rule is against this order.

2. Mr. S. P. Roychowdihury, learned Advocate appearing for defendant No. 2 who is the petitioner before us, contended that it was not necessary for the Court to look into the intervening facts because the defendant No. 2 subsequently acquired the interests transferred by her earlier in full. It was further contended by Mr. Roychowdhury that as soon as the defendant No 2 re-acquired her share, her right of pre-emption revived and the Court should proceed, as directed already, on basis of her application under Section 4. Mr. Royohowdhury also contended that provisions of the Partition Act should be construed liberally so as not to destroy the integrity of the family dwelling house, as was held by several decisions cited by him. In any event, Mr. Roychowdihury contended that his client still has the right to file an application under Section 4 of the Partition Act and to prevent multiplicity of the Court proceedings, the Court should not relegate the defendant No. 2 to further proceedings under Section 4 of the Act. These contentions are disputed by Mr. Biswas, learned Advocate appearing for the substituted plaintiffs.

3. Strong reliance has been placed on the decision in the case of Boto Krishna Ghosh v Akshoy Kumar Ghosh, reported in : AIR1950Cal111 where it was held that there is nothing in Section 4 of the Partition Act which disqualifies a member who, having previously alienated its share, has re-acquired it and is owning it at the time he makes his claim under Section 4. The qualification of the applicant, it was held, is to be judged with reference to his position at the date of the application. In the case before us, it would appear that the transfer which has resulted in the impugned order was made after the application under Section 4 of the Partition Act was filed. Section 4 of the Partition Act is on the following terms:

'Partition suit by transferee of share in dwelling-house.-- (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 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 shareholder and may give all necessary and proper directions in that behalf.'

4. On a plain reading of this section, it appears to us that when a stranger purchaser sues for partition, an application under Section 4 can be made by any member of the family being a co-sharer undertaking to buy the share of the transferee. On such application, a valuation of such share is to be made in such manner as the Court thinks fit and, thereafter, the sale of such share to 'such shareholder' is to be directed by the Court and the Court may give all other necessary and proper directions. Thus the shareholder who applies for pre-emption under Section 4 of the Partition Act must continue and retain his status as such shareholder when the order for sale to him is directed by the Court and the sale is completed accordingly. In view of this position if there is any change in the status of such shareholder by any intervening act whereby the interest of such shareholder in the property is lost, subsequent acquisition of such interest by him again will not make the same shareholder re-acquire his status as was his at the time when he made the application under Section 4. Accordingly, it appears that, if there is such cessation of the interest of the shareholder in the property within the said period leading to a change of the status of the shareholder by reason of any intervening factor, such shareholder will not retain the same capacity he had by reason of such transfer and, as such, will not be entitled to the benefit under Section 4(1) of the Act. This aspect of the question was not required to be considered and accordingly not considered in the decision cited above. We are, therefore, of the opinion that the defendant No. 2 by reason of intermediate transfer made by her, notwithstanding subsequent acquisition of such interest by her by a subsequent deed before the final order, lost the benefit which the Court gave her by allowing her application under Section 4 of the Partition Act.

5. In view of the express and clear provisions of the section, as stated hereinbefore, there is no scope to give any liberal interpretation to the section, as contended by Mr. Roychowdhury. The status of the shareholder is required to be the same in the proceedings throughout till the final decree and directions are made and the sale is effected and, if that status is lost by a shareholder by reason of any intervening factor, such benefit cannot be granted to the applicant under Section 4 as grant of such benefit would cause a departure and violation of the provisions of Section 4(1). There are also authorities which advocate strict interpretation of Section 4.

6. Mr. Roychowdhury contended that, since his client is still entitled to make an application under Section 4 by virtue of her acquisition of the share in the property, the Court should not relegate her to a further proceedings under Section 4 once again. If it is still open to Mr. Roychowdhury's client to apply under Section 4 and if she is so advised, such application if made will be considered on merits. But it is not possible for us at this stage to allow her to reap the benefit of the application under Section 4 which in view of the subsequent event disentitles her to get the benefit on her application filed on 30-4-1957.

7. For all these reasons, we are of the opinion that the impugned order has to be sustained. The Rule, accordingly, fails and is discharged. There will be no order as to costs.

8. We make it dear, however, that we are expressing no opinion on the merits of the case of parties in the proceedings, particularly, in respect of any fresh application under Section 4, if at all filed by the petitioner.

H.N. Sen, J.

9. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //