Karnataka High Court
The Sangli Bank Ltd. By Its Pa Holder - Mr. ... vs Smt. Sudha W/O Shankarrao Kalkundri And ... on 2 August, 2006
Equivalent citations: AIR2007KANT3
JUDGMENT H.V.G. Ramesh, J.
1. This second appeal is by the 8th respondent/Bank being aggrieved by the order passed by the District Judge in 28/1998 confirming the judgment and decree passed by the trial court in Final Decree Proceedings in 25/1987 by order dated 2.9.1998.
2. A suit in OS 200/1979 came to be filed before the IT Addl. Civil Judge, Belgaum for partition and separate possession of half share in the building, out house and backyard. As there was a dispute among the family members, the plaintiff - Pandurang/6th respondent herein had filed a suit wherein according to him, the appellant - bank was the occupant as a tenant and the rental amount was being distributed between himself and the 1st defendant In the suit filed by the plaintiff -Panduranga Rao, it appears there is a serious contest by the 3rd defendant and the legal representatives of the 8thdefendant According to the defendants, they had relinquished the right in favour of the 1st defendant - Krishna Rao who is the brother of the plaintiff. The plaintiff is the adopted son of Venkat Rao. According to defendants 2 to 8, they have relinquished their share in favour of the 1st defendant. However, the 1st defendant has filed his written statement; defendants 2,3 & 8 have also filed written statements independently. Similarly, the 6thdefendant has also filed written statement before the trial court. According to the 3rd defendant - Sudha who is the contesting respondent herein, she is a widow and the plaintiff and 1st defendant had allowed her to stay in the out house of the suit property without receiving any rent. The plaintiff and 1st defendant were also living together with 3rd defendant as such, the 3rd defendant on live and license basis remained in the suit house. The contention of the plaintiff is that he is entitled for half share in the suit property. According to the 1st defendant, defendants 2 to 8 have no right and title or interest in the suit property. But that contention has not been accepted. However, the trial court has held that plaintiff has got half share in the property and that the 1th defendant has become the owner in respect of other half share of the suit property. Regarding relinquishment of right by defendants 2 to 8, the same has been held in the negative. Further, the trial court has also held that defendants 2 to 8 each are entitled to 1/16th share. After the decree was passed, it appears, final decree proceedings were initiated. During pendency of the matter after the preliminary decree is passed, the plaintiff, defendants 1, 2, 4 to 6 have sold their rights i.e., in all 13/16th share to the appellant bank herein. The final decree proceedings was initiated by the 3rd defendant and the 8th defendant and after the death of 8th defendant, her legal representatives were brought on record. As things stood, after the preliminary decree is passed declaring the right of defendants 1 to 8 as 1/16th share, about 13/16th share is purchased by the bank which was already in occupation of the petition premises. Thus, while declaring that the plaintiff has got half share, it is also declared that defendants 1 to 8 have got 1/16th share. The plaintiff and other defendants other than the contesting respondents, have sold their right in favour of the bank and to the 9th respondent In the final decree proceedings, since the bank was in occupation of the property and is also said to have purchased the property of some of the co-sharers, the bank was also impleaded. On such impleadment, in the usual course, the appellant bank is said to have filed formal objection to IA 4 filed by the applicant under Section 4 of the Partition Act, 1893. In the objections, it is contended that the application filed in the final decree proceeding is not maintainable. While admitting that the preliminary decree was passed on 30.8.1983 declaring the share of the plaintiff and that of the co-owners, it is stated by the bank that defendants 1, 2, 4 to 6 have sold their undivided share to the bank after receiving the consideration amount and it is to the knowledge of the applicants. According to the appellant bank, its vendors had right, title and interest to sell their respective shares and their shares had already been determined by the court in the original suit and the suit property is facing towards the southern side and is being used for commercial purpose. While asserting the fact that the appellant bank has every right to purchase the undivided share of the other co-owners, it has denied that the suit property is not impracticable to divide among the co-owners. It is stated in para 9 of the objections to IA filed under Section 4 that the discretionary powers be exercised in favour of the bank and the property be partitioned by metes and bounds by appointing a Commissioner and accordingly prayed for dismissal of the application. The final decree proceedings has been allowed.
3. In the final decree proceedings initiated the prayer of the petitioners is to award 1/16 share to each of the petitioners. However, it appears during pendency of the Final Decree Proceedings, an application under Section 4 was filed. In the Final Decree Proceedings, the trial court also considered the application of the petitioners and has given them the right of preemption. The same has been challenged in appeal before the District Judge in RA 28/1998. It is seen, three points were raised by the Civil Judge (Sr. Dvn) in the Final Decree Proceedings and one of the points is in respect of the application filed under Section 4 in the Final Decree Proceedings by the 3rd and 8th defendants wherein the said application was allowed and a final order came to be passed stating that the applicants shall file an execution petition after the Final Decree Proceedings and also directed the executing court to appoint a technical person preferably, a Civil Engineer to fix the price of the portion of the premises purchased by respondents 8 and 9 on 15.5.1989 and submit a report to the executing court and, the executing court after accepting the same shall direct respondents 8 and 9 - transferees to execute the sale deed in favour of the petitioners after the receipt of the market price to be determined by the court commissioner. The 8th respondent - Sangli Bank being aggrieved by the said order, preferred first appeal before the District Judge, Belgaum. The District Judge, having noted that the appellants being respondents 8 and 9 before the lower court have not raised their finger while the application IA 4 was disposed of and have raised an issue only before this Court, has proceeded to pass an order that the parties went to trial without an issue being raised on such plea and that such a plea has been abandoned and in the absence of any prejudice caused no grievance could be entertained at the stage of second appeal and referring to the decision in Mohammadsadiq v. Mahboobsab 1987 KLJ 55, it has confirmed the order passed by the trial court in the Final Decree Proceedings. Hence, this appeal by the 8 defendant who is also 8st respondent before the court below.
4. Heard the counsel for the respective parties.
5. At the time of admission, the following substantial question of law was raised by this Court on 10.1.2003.
1. Whether Section 4 of the Partition Act is applicable to the facts of this case?
2. Whether the judgment of this Court reported in 1962 My.L.J. 963 is applicable to the facts of this case in the light of the subsequent judgment of the Supreme Court in AIR 1971 SC 471.
6. It is the submission of the counsel for the appellant that application under Section 4 of the Partition Act does not arise at all. The appellant who was a tenant had purchased the undivided share of defendants 1, 2, 4 to 6 and it never contested the suit nor the final decree proceedings. Rather, on it being impleaded, a request was made that the share that would be allotted to its vendors be given to it and such a prayer does not amount to seeking for a share by way of filing a suit for partition or by way of filing execution. According to the appellant bank, it has neither initiated the proceedings for partition as contemplated under Section 4 of the Partition Act nor it initiated execution proceedings on such passing of the preliminary decree for purchasing the share of some of the co-owners i.e., to the extent of 3/13th share.
7. Per contra, it is the argument of the counsel for the respondents that the very plea of the appellant herein is by way of a prayer for the shares by metes an bounds and that prayer itself is enough to hold that it has initiated proceedings for execution and sought for a share as such. In view of the bar contained in Section 4 of the Partition Act, the trial court in the final decree proceedings as well as the lower appellate court in appeal, rightly held that there is a right of preemption available to the respondents herein and the value of the property has to be determined and the extent of share purchased by the appellant be made available to the respondents herein for purchase. It is further submitted that there is a prayer by the 8th respondent/bank and when such prayer is there it is as good as it is contesting the suit or the final decree proceeding as such, there is a clear bar under Section 4 it being the purchaser of the share in the joint family property. In view of the prayer in its objections it is as good as participation in the proceedings in a suit for partition and it cannot exercise the right in view of Section 4. Accordingly, it is submitted that there is a concurrent finding of both the courts below as such, the appellant is not entitled for any such right.
8. Learned counsel for the parties have relied upon the decisions in Gyan Chand and Anr. v. Sumat Rani and Ors. ; Gautam Paul v. Debt Ram Paul and Ors. AIR 2001 SC 61; Srilekha Ghosh (Roy) and Anr. v. Partha Sarathi Ghosh - and Punjab National Bank v. R.L. Void and Ors. .
9. Section 4 of the Partition Act 1893 reads as under:
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 share holder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as h thinks fit 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.
10. As things transpired, a suit for partition was filed by the adopted son of Venkat Rao against his own natural brothers and sisters who are children of Dhruva Rao. The suit property is situate at Belgaum. There is a decree passed in the suit allotting half share to plaintiff and in the remaining share, 1/16 share to each of the defendants. In the year 1961 itself, Sangli Bank - appellant herein is said to be in occupation of portion of the house. Of course the said house is said to have been bequeathed in favour of all her brothers by late Laxmi Bai w/o Narayana Rao as she was a widow and died issueless. This property is said to have fallen to the share of Dhruva Rao and Venkat Rao who are residents of Gadag and plaintiff, being adopted son of Venkat Rao though he is the natural son of Dhruva Rao, sought for his legitimate half share and the trial court also declared his right to the extent of half share. The remaining half share has been divided among the brothers and sisters. Defendants 3 & 8 defendant have filed final decree proceedings impleading the other co-sharers and sought for possession of the house property. Meanwhile, after preliminary decree is passed, the bank which was in occupation of the house property has also purchased the share of some of the co-sharers to the extent of 13/16 share and as such, bank was also impleaded as one of the party to the execution proceedings. On such impleadmerrt, application was also filed under Section 4 of the Partition Act by the applicants. On consideration of the application, trial court has ordered for valuing the share of the property purchased by the bank and also allowed the applicants viz., 3 defendant and legal representatives of 8st defendant to purchase the same against which, appeal was filed before I Addl. District Judge, Belgaum who in turn, holding that there is no pleading as such by the Bank and in the absence of any such pleading to have contested the same and, for the first time the issue is raised in appeal which cannot be allowed, has confirmed the order of the trial court. Hence, this appeal by the Bank.
11. The crux of the case is whether trial court as well as lower appellate court were justified in allowing the application filed under Section 4 of the Partition Act.
12. Of course while framing the substantial question of law, the second question raised is with reference to the judgment of this Court reported in 1962 MLJ 963 and the judgment of the Supreme Court in AIR 1997 SC 471. There are umpteen number of decisions available on Section 4 of the Partition Act and different High Courts have taken different view. But, in the instant case it has to be seen whether the appellant bank which was impleaded by the applicants and its prayer thereof and, the objection filed could be treated as moving the court seeking for such partition and whether such a prayer sought for by it could be treated as a prayer for the purpose of Section 4 of the Act for all practical purposes.
13. In the decision relied upon by the appellant as well as the respondent i.e., in Gyanchand v. Sumat Rat's case , with reference to Section 4, it is noted that so long as a stranger purchaser does not seek actual division and possession either in the suit or in the execution proceedings, co-sharer cannot in a suit brought for partition by him or by another co-sharer exercise right under Section 4 of the Partition Act. It is stated therein that such right of the co-sharer under Section 4 of the Partition Act would be available only if a transferee files a suit for partition. The Supreme Court also, referring to the decision of the Full Bench of Calcutta, Patna & Orissa High courts and also referring to the decision in Gautam Pal's case , was of the view that so long as a stranger purchaser does not seek actual division and possession either in the suit or execution proceedings, a co-sharer cannot in a suit brought by him for partition or by another co-sharer exercise right of another co-sharer under Section 4 of the Partition Act.
14. In the decision in Srilekha Ghosh's case cited supra relied upon by the respondent, the Apex Court has, referring to the decision in Babulal v. Habibnoar Khan , held that one of the basic conditions for applicability of Section 4 as laid down by the aforesaid decision and also as expressly mentioned in the section is that, stranger transferee must seek for partition and separate possession of the undivided share transferred to him by the co-owner concerned. It is stated further that it is true in the said decision it was observed that even though the stranger transferee on such undivided interest moves an execution application for separating his share by metes and bounds, it would be treated to be an application for suing for partition and it is not necessary that a separate suit should be filed by such stranger transferee. On this decision the learned Counsel for respondent has laid emphasis and submitted that in view of the prayer sought for by the appellant-bank, it is as good as a prayer sought in the usual course in a suit for partition, as such, it would tantamount to initiating or moving the court seeking for granting his prayer, as a party in a partition suit can be transposed either as a plaintiff or defendant. In that view of the matter, the prayer sought for by the bank should be treated as if it has moved for an execution petition seeking for a separate share and Section 4 has to be invoked allowing the other co-sharers to exercise their right of preemption.
15. Learned counsel has also relied upon Gautam Paul's case cited supra. Of course, this decision is also relied upon by both the parties. What is noted in the said decision is, although a liberal interpretation has to be given, the interpretation cannot be one which gives a right which the Legislature did not clearly intend to confer. The legislature was aware that in a suit for partition a stranger who has purchased the share would have to be made a party; the legislature was aware that in a suit for partition, the parties are interchangeable; the legislature was aware that partition would result in a decree for partition and in most cases, a division by metes and bounds; the legislature was aware that on a actual division like all other co-sharers, the stranger would also get possession of his share. Yet the legislature did not provide the right for preemption to be exercised in a suit for partition. The legislature only provided for such right when the transferee sues for partition. The intention of the legislature is clear that there has to be initiation of proceedings or the making of a claim to the partition by a stranger outsider. This could be by way of initiating proceedings for partition and even claiming partition in execution. However, mere assertion of claim to a share without demanding separation and possession is not enough to give the co-sharer a right of preemption.
16. Learned Counsel for the respondent has relied upon the decision in Punjab Notional Bank R.L. Vaid AIR 2004 SC 4269 wherein in para 5, with reference to the decision in AIR 1993 SC 1769, the Supreme Court has observed as under:
We find that the Court has merely referred to the decision in R.K. Jain's case without even indicating as to applicability of the said decision and as to how it has any relevance to the facts of the case. It would have been proper for the High Court to indicate the reasons and also to spell out clearly as to the applicability of the decision to the facts of the case. There is always peril in treating the words of a judgment as though they are words in a legislative enactment and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a difference between conclusions in two cases. Disposal of cases by merely placing reliance on a decision is not proper. Precedent should be followed only so far as it marks the path of justice, but you must cut out the dead wood and trim off the side branches else you will find yourself lost in thickets and branches, said Lord Denning, while speaking in the matter of applying precedents. The impugned order is certainly vague.
17. Relying upon the said ratio, learned Counsel contended that in view of the nature of the suit i.e., suit for partition and in view of the prayer sought for by the appellant in the execution proceedings, it has to be treated as if his prayer is for partition by metes and bounds and as such, to enable the court to invoke the provisions of Section 4 to exercise right of preemption among the co-sharers the there must be purchase of the property by a stranger/outsider who cannot dwell over other co-sharers.
18. In the instant case, it is interesting to note that the property does not originally belong either to the plaintiff or the defendants. These properties were bequeathed by the sister of the father of the parties and in turn, it has been divided among the brothers and sisters and the suit property which also consists of a house, is let out in 1961 itself to the Bank.(sic) It appears the bank was not a party to the suit for partition and it has not initiated the execution proceedings. Rather, some of the defendants who have got their shares declared in the preliminary decree, have moved the execution proceedings before the trial court by filing an application and they have impleaded the bank which is said to have purchased 13/16th share of some of the co-sharers. Such impleadment was at the instance of the contesting respondent herein and also at the instance of one more defendant. The bank as well as one more person has purchased the property of the co-sharers.
19. The very spirit of Section 4 is to see that an outsider shall not gain entry into the dwelling house from the back door so as to disturb the privacy of the co-sharers who are all family members and the entry of an alien into the house will not be proper and it will not be in the welfare of the other co-sharers for a peatful living. In such circumstance, as a matter of precautionary measure, Section 4 of the Partition Act and Section 44 of the Transfer of Property Act have been enacted. In the case on hand, the house was bequeathed to the share of Dhruva Rao and Venkat Rao by their sister. Later, as a matter of understanding, as per the contention of the 3rd defendant/respondent 1, she has occupied the house without any rental even before the partition is being effected between the parties.
20. Meanwhile, it is also noted that the bank was already in occupation of portion of the premise as it was originally let out by Laxmi Bai even before bequeathing the property in favour of her brothers as she died issueless and as a widow. The property in occupation of the bank has fallen to the share of some of the defendants and in this context and also in this back ground, property which has fallen to the share of the defendant was sought to be acquired by the applicants in execution proceedings exercising the right of preemption as provided under Section 4 of the Partition Act. The intention of the legislature as per the ratio of the Apex Court and other High Courts is clear that always the stranger should be excluded from gaining entry into the dwelling house. But, in the instant case, the bank was already in picture as an occupant of the house which was let out to it by the original owner Laxmi Bai sister of Dhruva Rao and father of defendants 3 to 8.
21. The property is a dwelling house and what is to be noted is that the stranger/purchaser normally did not seek actual division of partition either in the suit or in execution proceedings. Actually the suit was initiated by one of the co-sharers before the trial court. In the original suit, the appellant bank was not in picture. Thereafter, after the preliminary decree was passed shares of some of the co-sharers had been purchased and later execution proceeding was initiated by defendants 3 and 8. On coming to know of the purchase of the property of the co-sharers, the bank was also impleaded and in the usual course, bank has filed its objections to IA 4 denying the right of the applicants seeking for invoking of Section 4. Now the fact remains that the suit is neither being initiated by the appellant-bank nor the execution proceedings. Rather the applicants who are defendants 3 and 8 have impleaded the Bank. In that, as a matter of defense the bank has filed objections contending that Section 4 cannot be invoked in the circumstances of the case. In this regard, it would be relevant to note the ratio laid down by the apex court in Gautam Pal's case wherein it is clearly held that as per the intention of the Legislature, there has to be initiation of proceedings or the making of a claim to partition by a stranger or outsider and this could be by way of initiating proceedings after partition or even claiming partition in execution for the co-sharer to exercise right of preemption under Section 4 of the Partition Act. In the instant case, it is noted that neither the appellant bank has initiated proceedings for partition nor initiated execution proceedings. As noted by the Apex Court, mere assertion of a claim to a share without demanding separation and possession is not enough to give the co-sharer a right of preemption. That itself struck the case of the co-sharers to hold that the appellant bank has not actively participated either in initiating original proceedings for partition or in the execution proceedings. Rather, when it has been impleaded, it has asserted its right and this is not enough to give to the other co-sharer the right of preemption. In the circumstances, both the appellate court as well as the trial court in final decree proceedings have committed an error holding that the applicants are entitled to exercise right under Section 4 of the Partition Act and thus directing the appointment of an Engineer to value the property. The right that was available to the bank for having purchased 13/16th share of some of the co-sharers cannot be made available to the respondents for purchasing the same by exercising right of preemption under Section 4 of the Partition Act.
22. In view of what is stated above, the appeal is allowed by setting aside the order passed by both the courts below while holding that the appellant bank is entitled for 13/16th share as is available to it. However, in so far as earmarking the properties by metes and bounds, it shall be done by the trial court in the final decree proceedings. For that limited purpose, the matter is remanded back to the trial court to continue the final decree proceedings and after enquiry, earmark the boundaries while exercising discretion and according to the convenience of the parties.
23. No order as to costs.