Calcutta High Court (Appellete Side)
Smt. Maya Rani Halder vs Shree Mrityunjoy Kayal & Ors on 6 May, 2015
Author: Harish Tandon
Bench: Harish Tandon
In The High Court at Calcutta Civil Revisional Jurisdiction Appellate Side Present:
The Hon'ble Mr. Justice Harish Tandon.
C.O. 686 of 2015 Smt. Maya Rani Halder.
v.
Shree Mrityunjoy Kayal & Ors.
For the Petitioner : Mr. Mrinal Kanti Sardar,
Mr. Goutam Das.
For the opposite parties : Mr. Suprobhat Bhattacharyya.
Heard on : May 6, 2015.
Judgment on : May 6, 2015.
The Court:- This revisional application is directed against the order no. 87 dated January 3, 2015 passed by the learned Civil Judge (Senior Division), Diamond Harbour in Title Suit No. 132 of 1996, by which the objection to the valuation report was rejected and simultaneously the valuation report was accepted by the Trial Court.
Admittedly the stranger purchasers filed a suit for partition against the remaining co-sharer, which was decreed in preliminary form. After the preliminary decree is passed, an application under Section 4 of the Partition Act, 1893 was taken out on 5th May, 2001 seeking to preempt the share of the stranger purchasers and undertake to buy the same at the market price.
The said application, which was taken out on 5th May, 2001 took nearly seven years to get it disposed of by an order dated 3rd September, 2008. It further appears that several reminders were given by the Court to the Collector, 24- Parganas (South) to submit the report as to the market value of the property, which could only see the light of the day on 17th July, 2013 indicating the market value at Rs. 10,37,569/-. Apart from a Memo No. 163 dated 3.6.2013 the said report is silent as to whether such market value has been ascertained on the date of the said Memo or on the date when the petitioner applied to purchase the share of the stranger purchasers before the Trial Court.
Though the judgement of a Division Bench of this Court rendered in case of Monomohan Saha vs. Usha Rani Ghosh reported in AIR 1979 Cal. 79 was cited before the Trial Court, the Trial Court misconstrued the ratio laid down therein and misinterpreted the provisions contained under Section 4 of the Partition Act, 1893 while rejecting the objection and accepting the valuation report.
Before proceeding to deal with the point canvassed before this Court, it would be profitable to quote Section 4 of the said Act, which runs thus:
"4. 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.
(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."
From the meaningful reading of the provisions contained in the above quoted Section, there is no hesitation to say that if any member of the family, being shareholder, undertakes to buy the share of the transferee, being not the member of the undivided family, the Court shall make a valuation of such share in such manner as it thinks fit and direct the sale of such share of such shareholder, if the transferee sues for partition. The expression "undertake to buy the share of such transferee" inexorably implies that the date on which the co- sharer intends to buy the share either by making an application or by his conduct, the valuation should be made in respect of such share with reference to the said date.
The aforesaid proposition is further fortified from a judgement of this Court in case of Shew Sdhankar Shaw @ Shew Sankar Das vs. Gaur Hari Maity & Ors. reported in 2010 (4) CHN (Cal) 989, wherein it is categorically held that the date of allowing an application under Section 4 of the said Act is not the relevant date with reference to which the valuation of the share of the stranger purchasers is required to be made, but the relevant date would the date when the co-sharer undertakes to buy the share of the stranger purchasers in respect of the suit- property. It would be relevant to quote paragraphs 9 and 10 of the said judgement, which runs thus:
"9. If the principle which was laid down by the Division Bench of this Hon'ble Court in the said decision is applied in the instant case, then this Court holds that since the plaintiff has applied for such preemption in the instant case prior to the passing of the preliminary decree in the said suit, the relevant date for the purpose of assessment of valuation of the share of the stranger purchaser in the suit property will be the date when the preliminary doecree in the said suit was passed declaring the share of the parties in the suit property. Though the petitioner's right to preempt under section 4 of the partition Act was recognized by the Appeal Court for the first time on 17th February, 2004 and subsequently was affirmed in appeal by the Hon'ble Supreme Court on 18th October, 2006 but sale price of the stranger purchaser's share cannot be fixed with reference to the date when the petitioner's right of preemption was recognized inasmuch as section 4 of the Partition Act speaks of sale of the share of the stranger purchaser at its valuation as on the date when the co-sharer undertakes to purchase the share of the stranger purchaser.
10. The decisions which were cited by Mr. Mahato clearly demonstrate that the date when the plaintiff's right to preempt was recognized by the Appeal Court for the first time cannot be accepted as the date with reference to which valuation of the share of the stranger purchase in the suit property is to be made, as the date of allowing the application under section 4 of the Partition Act is not the relevant date with reference to which valuation of the share of the strange-purchaser is required to be made inasmuch as the relevant date is the date when the plaintiff undertakes to purchase the share of the stranger purchaser in the suit property. Such undertaking was given by the plaintiff in his plaint itself which was filed on 31st March, 1997 but since such undertaking was given by the plaintiff in the plaint before passing of the preliminary decree, the relevant date in the instant case as per the decision of the Division Bench of the Hon'ble Court in the case of Gopal Chandra Mitra & Ors. Vs. Kalipada Das & Ors. (supra) will be the date when the preliminary decree was, in fact, passed declaring the shares of the parties i.e. as on 26th February, 1999."
The reference can further be conveniently made to a judgement of this Court rendered in case of Gopal Chandra Mitra vs. Kalipada Das reported in AIR 1987 Cal 210, wherein the Division Bench held:
"We are accordingly of the view that the relevant date for the purpose of determining the valuation under section 4(1) of the Partition Act would be the date when the member-shareholder undertakes to buy the share of the transferee, provided such undertaking is given after the share of the transferee has been ascertained by the Court in the preliminary decree. But when an application under section 4 of the Act containing such an undertaking has in fact been filed, as it can be filed, before the preliminary decree, the valuation shall have to be made as on the date of the preliminary decree, as only after ascertainment of share by such a preliminary decree, an application under section 4 along with the undertaking becomes legally effective and operative which until that stage remains a mere paper."
The ratio culled out from the aforesaid reports does not lay down that the market value is required to be ascertained when the Collector is approached for ascertaining the valuation, but the relevant date would be the date when the co- sharer undertakes to buy the share of the stranger purchasers or when such application is made prior to the date of passing the preliminary decree, the date when the preliminary decree is passed. In the instant case the application was taken out on 5th May, 2001 and, therefore, the relevant date for ascertainment of valuation of the share of the stranger purchasers would be on the said date and not when the application is allowed by a judicial order.
Since the report of the Collector is silent, as it does not contain the date of ascertainment of the market value of the share of the stranger purchasers, therefore, is opposed to the provisions of Section 4 of the Partition Act.
The order impugned is, therefore, set aside.
The Trial Court is directed to issue a fresh Memo to the Collector with a specific direction that the market value of the share of the stranger purchasers shall be ascertained as on 5th May, 2001 and shall see that the report reaches to the Court within three weeks from the date of issuance of the Memo.
With the above observations the revisional application is allowed.
There will be no order as to costs.
(Harish Tandon, J.)