Patna High Court
Lal Kejriwal And Ors. vs Bhawanath Jha on 28 June, 1976
Equivalent citations: AIR1977PAT5, AIR 1977 PATNA 5
Author: Nagendra Prasad Singh
Bench: Nagendra Prasad Singh
ORDER Nagendra Prasad Singh, J.
1. In this revision application the petitioners have challenged the legality of an order dated 5-3-1974 passed by the learned Subordinate Judge, Bhagalpur, fixing valuation of a house which was the subject-matter of partition in Title Suit No. 25 of 1966.
2. The petitioners had purchased 9-10th share of the said house, situated in Mohalla Golghat in the town of Bhagalpur, under a sale deed dated 10-11-1965. After purchase the petitioners filed aforesaid title suit on 22-2-1966 for partition of 9/10th share in the aforesaid house on the basis of the transfer made in their favour. The defendant-opposite party had the right, title and interest over the remaining 1/10th share in the said house. The opposite party filed written statement on 19-8-1966 disputing the claim for partition made on behalf of the petitioners. In paragraph 13 of the written statement, it was stated as follows:--
"That the disputed house was a dwelling house belonging to the undivided family of the defendant and his uncles, brothers and cousins on the date of sale. All the members of the family were actually living in the house or were using the house as their dwelling house whenever they came to Bhagalpur. This family was undivided qua dwelling house in question and in view of the plaintiffs' claim for partition of their alleged share in the dwelling house (which is not admitted) belonging to the undivided family; this defendant undertakes to buy the share of the plaintiffs and request this court to make a valuation of the share of the plaintiffs in the house as mentioned by the plaintiffs or in such manner as it thinks fit and direct the sale of the plaintiffs' share to the defendant and might give all necessary and proper directions in that behalf under Section 4 of the Partition Act, Act IV of 1893."
3. During pendency of the suit another application was filed on 3-5-1967 by opposite party again reiterating the undertaking to buy the share of the plaintiffs in accordance with the provisions of Section 4 of the Partition Act (Act IV of 1893) (hereinafter referred to as the Act). The learned Subordinate Judge, however, instead of adopting the procedure prescribed under Section 4 of the Act, decreed the suit for partition filed on behalf of the petitioners, by his judgment and decree dated 3-4-1969. Being aggrieved by the said judgment and decree the opposite party filed a First Appeal before this Court which was numbered as F. A. 211 of 1969. The said appeal was allowed by a Bench of this Court on 20-7-1973. Their Lordships set aside the preliminary decree passed in the said suit and directed the learned Subordinate Judge to value the property in dispute in accordance with Section 4 of the Act, giving option to the opposite party to purchase the share of the plaintiffs in the house, in question, on the basis of valuation fixed by the court concerned. It appears that in pursuance of the said direction the learned Subordinate Judge by the impugned order has fixed the value of the house, in question, at Rs. 25,000 and the share of the petitioners at Rs. 22,500 and has directed the opposite party to deposit the said amount of Rs. 22,500 for the transfer of the share of the plaintiffs.
4. The learned counsel appearing for the petitioners has submitted that the learned Subordinate Judge should have fixed the market value of the house, in question, taking into account the valuation of the said house in the year 1974 when the application under Section 4 of the Act was being disposed of by the learned Subordinate Judge in pursuance of the direction of this Court. According to the learned counsel the court below acted with material irregularity in exercise of the jurisdiction, in fixing the value of the house with reference to the date of the institution of the suit. During the course of argument, however, the learned counsel appearing for the petitioners conceded that the relevant date should be the date on which a co-sharer undertakes to buy the share of such transferees, who are strangers to the family and in the instant case according "to the learned counsel it should be 3-5-1967 the date on which the application under Section 4 of the Act was filed on behalf of the opposite party.
5. Sub-section (1) of Section 4 of the Act which is relevant in context of the submissions made on behalf of the parties is as follows:--
"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."
This sub-section, on its plain reading, gives option to any member of the family who is a co-sharer in respect of a dwelling house, a portion whereof has been transferred to a person who is not a member of such family, to purchase the share of such transferee, if a suit for partition is filed by that transferee. On such option being exercised, the valuation of such share has to be determined. The amount so determined has to he deposited by such co-sharer, whereupon the share of the transferee is to be sold to such co-sharer. This option can be exercised at any stage of the suit. Now the question is as to what will be the crucial date for the purpose of fixing valuation of the share of such transferee--the date of the institution of the suit or the date of the filing of application under Section 4 of the Act. There is nothing in Section 4 from which this question can be answered. But in my opinion, it will be more reasonable to hold that the valuation should be fixed with respect to the date when option to purchase in accordance with Section 4 of the Act is exercised by the defendant-co-sharer. The learned counsel appearing for the opposite party has contended that for the purpose of valuation the crucial date is the date of the institution of the suit and has placed reliance on two decisions, 'namely Mt. Sumitra v. Dhannu Bhiwji (AIR 1952 Nag 193 (2)) and Bhi-kari Behera v. Dharmananda Natia (AIR 1963 Orissa 40). In both these cases the controversy was as to whether the valuation is to be determined with reference to the date of the purchase made by the transferee or with reference to the date of institution of the suit and it was held that the date of the institution of the suit should be the relevant date for the purpose of fixation of the value of the house in question, because the valuation of the building had gone up during the period between the purchase and the institution of the suit. The share of the transferee was valued with reference to the date of institution of the suit. In none of these cases the question as to whether the relevant date was the date of institution of the suit or the date of exercising the option under Sec. 4 of the Act was considered. My view that the valuation should be fixed taking into account the date on which the option under Section 4 of the Act is exercised, gets support from the two Bench decisions of Calcutta High Court in the cases of Subal Chandra Modak v Gostha Be-hari Das .(1956) 60 Cal WN 829 and Sri Surendra Nath Achar v. Ram Chandra Hazra (1971) 75 Cal WN 195. In the case of (1956) 60 Cal WN 829 (supra) it was observed at page 834:--
"While fixing a valuation after an application is made under Section 4 of the Partition Act, the valuation is to be fixed on the proper market value. Such valuation is to be fair both to the stranger purchaser and also to 'the co-sharers of the erstwhile undivided joint family. The sale by the stranger to the co-sharer is a forced sale and therefore such valuation, is to be fixed with great care -and precision."
In the case of (1971) 75 Cal WN 195 (supra) at page 215 it was observed:--
"...... Since the date of transfer right up to the date of application under Section 4 of the Partition Act, the value of the transferred share may increase or may decrease as would be determined by the Bartition Commissioner upon evidence taken during the proceedings for valuation of the transferred share before him. Upon the Commissioner's report of valuation of the transferred share the trial court may, on evidence, if it thinks fit, decide the market-value of the transferred share as obtaining on the date of the application under Section 4 of the Partition Act......"
6. In the instant case as I have already pointed out above, the petitioners purchased 9/10th share of the house, in question, on 10-11-1965. The suit for partition was filed on behalf of the petitioners on 22-2-1966 and written statement was filed on behalf of the opposite party on 19-8-1966 in which the opposite party undertook to buy the share of the petitioners in the said house. The same undertaking was given by a separate petition filed on 3-5-1967. It will appear from the order of the learned Subordinate Judge, that he has discussed the evidence on behalf of the parties and has recorded that Rs. 25,000 was the market value of the house in question in the year 1966. In my opinion, the learned Subordinate Judge has rightly fixed the valuation of the house with reference to the year 1966 when the opposite party undertook to purchase the share of the petitioners. Learned counsel appearing for the petitioners could not point out, as to how any question of jurisdiction is involved in this case, calling for the exercise of the revisional jurisdiction of this Court. In my opinion, this case has no merit and it is accordingly dismissed, but in the circumstances of the case there will be no order as to costs.
7. The learned Subordinate Judge had fixed, by his order dated 5-3-1974, sixty days from the said order as the date for deposit of Rs. 22,500 by the opposite party. Admittedly, no such deposit has been made because of the filing of the present application and stay having been granted by this Court. I direct that the defendant-opposite party shall deposit Rs. 22.500 being the share of the plaintiffs-petitioners within three months from today. Let the records be sent down immediately.