Calcutta High Court (Appellete Side)
For The vs Sri Ram Chandra Hazra & on 9 November, 2011
Author: Harish Tandon
Bench: Harish Tandon
1 .11.2011 C.O. 2825 of 2007 Mr. Pinaki Ranjan Mitra Mr. Jaydip Basu ... for the petitioner Mr. Sanjib Mal Mr. Bimalendu Das Ms. Shomrita Das ... for the opposite parties This revisional application is directed against an Order No. 81 dated 18.07.2007 passed by the learned Civil Judge (Senior Division), 2nd Court at Contai, Purba Medinipur in Judicial Misc. Case No. 08/2007 by which an objection to the valuer's report was rejected.
The stranger purchaser instituted a suit for partition against the co- sharer. In the said suit, the co-sharer being the petitioner herein filed an application under Section 4 of the Partition Act, claiming a pre-emption which was eventually allowed by the trial court.
The trial court directed the valuation to be made by a competent valuer who after considering the comparable sale of the nearby vicinity valued the property at Rs. 4,52,0442/- (Rupees four lakhs fiftytwo thousands four hundred fortytwo only) per decimal as on 20th February, 2007.
The petitioner objected to such valuation, which was rejected by the trial court by passing the impugned order.
Mr. Mitra, the learned advocate appearing for the petitioner submits that the valuation should be made by the said valuer in respect of the subject property as on the date of making an application claiming pre-emption under Section 4 of the Partition Act. He further submits that the valuer could not have valued the property as on the date of preparation of the valuation report.
In support of his contention he relies upon the following judgments:-
2i. Sri Surendra Nath Achar & Anr. Vs. Sri Ram Chandra Hazra & Ors., reported in 75 C.W.N. 195.
ii. Gopal Chandra Mitra & Ors. Vs. Kalipada Das & Ors., reported in 91 C.W.N. 799.
Mr. Sanjib Mal, the learned advocate appearing for the opposite parties submits that the best method for ascertaining the valuation of the property is by comparable sale and he relies upon the judgments of the Apex Court, in the case of Krishi Utpadan Mandi Samiti Sahaswan, District Badaun Vs. Bipin Kumar & Anr. reported in (2004) 2 Supreme Court Cases 283. He further contends that the valuation on the basis of the register maintained by the Registering Authority cannot be a market value as the said valuation is determined for the purpose of collection of the stamp duty and placed reliance on a judgment of the Supreme Court on Jawajee Nagnatham Vs. Revenue Divisional Officer, Adilabad A.P. & Others, reported in (1994) 4 Supreme Court Cases 595.
Having considered the respective submissions, the point emerges for consideration is whether the valuation of the property should be ascertained under Section 4 of the Partition Act as on the date of making the said application or as on the date when the valuer is ascertaining the valuation.
The said point has been decided by the Division Bench of this court in the case of Gopal Chandra Mitra and Ors. in these words:-
"4. But even though the relevant date for the purpose of determining the valuation is the date when an application under Section 4(1) by a member-shareholder undertaking to purchase the share of the transferee, the date of such application must mean the date when such application can properly be made and can become effective in order to bring the provisions of Section 4 into operation. It may be that a member-shareholder intending to invoke the provisions of section 4 may file an application thereunder at any time after the suit for partition is 3 instituted. But, as has been pointed out by a Division Bench of this Court in Niranka Sashi V. Swarganath (AIR 1926 Calcutta 95 at 96), the provisions of Section 4 can come into operation only if the Court has found that the stranger transferee is entitled to a share on partition and it is obvious that such a finding can be made only after a preliminary decree is passed in the suit determining the shares of the parties. And that is why it has been ruled by Amaresh Chandra Roy, J., in his leading judgment in Surendra Nath V. Ram Chandra (supra, 75 CWN 195 at
209) that "appropriate stage for making the application for final decree of partition by appointing a Commissioner to effect partition by metes and bound has been made". It may be that in a given case the stranger transferee may be found to be not entitled to any share at all because of any defect in title of his transferor or any defect in the document of title or the like. Therefore, unless it is found that the stranger transferee as a result of the transfer in his favour is entitled to some specific share in the dwelling-house in question, the proper stage for a member-
shareholder to "undertake to buy the share of such transferee" within the meaning of Section 4(1) of the Partition Act would not arise. 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."
4The aforesaid Division Bench considered the earlier Division Bench judgment of this court in the case of Shri Surendra Nath Achar & Anr. (supra) where it has been held that the valuation of the transferred share should be ascertained as on the date of filing of an application under Section 4 of the Partition Act.
There is no dispute to the proposition that the comparable sale is the best method for astertainment of the valuation of the property.
It is also undisputed that the valuation entered into the register maintained by the Registering Authority cannot be taken for ascertainment of the market value, but rather relevant for the purpose of ascertainment of the stamp duty as has been held in the case of Krishi Utpadan Mandi Samiti, Sahaswan, District Badaun (supra).
It is further noticed that the valuer ascertaining market value as on 20th February, 2007 whereas the application under Section 4 of the Partition Act was filed on 16.3.2004.
Therefore, the trial court acted illegally and with material irregularity in rejecting the objection filed by the petitioner.
The order impugned is, therefore, set aside.
The objection filed by the petitioner is hereby allowed. The valuer is directed to ascertain the market value of the subjected property as on the date of filing of an application under Section 4 of the Partition Act, i.e., on 16.03.2004, the said valuer shall take into consideration all relevant deeds as comparable sale deeds and shall also record the reason of discarding the other deeds at the time of ascertaining the valuation. The parties are also at liberty to produce the sale deeds at the time of ascertainment of the market value before the valuer and the valuer shall consider the same and shall record the reason thereupon.
The entire exercise shall be completed by the valuer within six weeks from date. Time fixed herein is peremptory and mandatory.
It is made clear that this court has not entered into the methodology adopted by the valuer while ascertaining the market value but have allowed the 5 objection merely on the ground that the valuer has ascertained the market value after the date of filing an application for pre-emption.
The revisional application is, thus, allowed.
The lower court record be sent down by Special Messenger at the cost of the opposite parties and such cost shall be put in within Friday (11.11.2011).
Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties upon compliance of all requisite formalities.
(Harish Tandon, J.)