Calcutta High Court (Appellete Side)
Palash Sarkar (Minor) & Anr vs Kumud Mondal & Ors on 4 December, 2019
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
Form J(2) IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Bibek Chaudhuri
S.A. 218 of 2012
Palash Sarkar (Minor) & Anr.
Vs.
Kumud Mondal & Ors.
For the Appellants : Mr. Partha Pratim Roy
Mr. Satyam Mukherjee
For the Respondent
No. 1 : Mr. Suranjit Ghosh
Heard on : 04.12.2019
Judgment On : 04.12.2019
Bibek Chaudhuri, J.
By order dated 25th November, 2019 S.A. 218 of 2012 was restored and re-admitted to its file.
At the time of hearing of the application for restoration this Court was of the opinion that the instant appeal can be disposed of even without calling for the formal paper book. Accordingly, the appeal is taken up for hearing in presence of the learned advocates for the appellants and the respondent No.1.
This appeal is directed against the judgment and decree dated 29th November, 2011 passed by the learned Additional District Judge, 3rd Court, Nadia at Krishnagar in Title Appeal No.90 of 2007, reversing the judgement and decree dated 28th February, 2007 passed by the learned Civil Judge (Senior Division), 1st Court, Krishnagar at Nadia in Title Suit No.162 of 2004.
The defendants are the appellants in the instant appeal. The respondent No.1 as plaintiff filed a suit for partition along with a prayer for pre-emption under Section 4 of the Partition Act pleading, inter alia, that the suit property, morefully described in schedule to the plaint originally belonged to one Tinkari Ghosh. Subsequently the said Tinkari Ghosh transferred the suit property in favour of one Kunja Behari Mondal, predecessor-in-interest of the plaintiff by virtue of a registered deed of sale dated 18th April, 1986. After purchase, said Kunja Behari Mondal had been possessing the suit property. His name was recorded in the record of rights. Kunja Behari Mondal died leaving behind four sons, namely, the appellant herein, Dhiren, Pabitra and Bikash and three daughters namely Milan, Dasi and Beauty as his legal heirs and representatives. After the suit property was inherited by the sons and daughters of the said Kunja Behari, one of his daughters, namely Milan transferred her share in favour of the plaintiff by a registered deed of sale and thus he became the owner of undivided 12 decimals of land in respect of the suit property. Subsequently her three brothers, namely, Dhiren, Pabitra and Bikash transferred their share in the suit property in favour of defendant /appellant Nos.1 and 2. Other two daughters of Kunja Behari, namely Dasi and Beauty transferred their share in the suit property in favour of defendant No.3 who is a stranger purchaser in respect of the suit property. Subsequently disputes cropped up between the appellants and the respondents with regard to possession of their respective shares in undivided ejmali property. The plaintiff/respondent requested them to effect amicable partition which they refused. Then the plaintiff filed the Title Suit No.162 of 2004 for partition according to the share of the parties with a further prayer of pre-emption in respect of the share of defendant No.3 who is a stranger purchaser in respect of the suit property.
During pendency of the suit the original defendant No.3 transferred his undivided 12 decimals of land in favour of defendant No.6 who happens to be the father of the present appellant Nos. 1 and 2. The said appellant Nos. 1 and 2 and their father were impleaded in the suit. The appellant Nos. 1 and 2 being minors at the relevant point of time entered appearance in the suit through their father defendant No.6 and contested the instant suit by filing written statement denying entire allegation made out against them by the plaintiff. It was specifically pleaded by the contesting defendants that after the death of the original owner Kunja Behari the suit property was acquired by his four sons and three daughters in equal shares and they started to possess the suit property by effecting partition amicably. In other words, they were enjoying their specific portions of the suit property having distinct and separate boundaries. On 15th October, 1999 three co-sharers namely Dhiren, Pabitra and Bikash transferred 18 decimals of land from their share in favour of defendant/appellant Nos. 1 and 2 by virtue of a registered deed of sale. The said sale was effected on behalf of defendant Nos. 1 and 2 during their minority by their father and possession of the specific purchased property from the suit property was delivered to the father of defendant Nos.1 and
2. Subsequently they raised a pucca construction over a portion of the said property and mutated their names in the record of rights. Again on 19th July, 2000 two daughters of Kunja Behari namely Dasi and Beauty also transferred their 12 decimals of land in favour of the appellants by a registered deed of sale.
Again defendant No.3 also transferred her share in the suit property in favour of the appellants and in all the appellants are in possession of 30 decimals of land in respect of the entire suit property and have been possessing the same by raising construction in some portion as well as by way of cultivation. It is also pleaded that the plaintiff/respondent has no right and authority to claim pre-emption under Section 4 of the Partition Act in the instant suit filed by him.
It is also pleaded that the plaintiff/respondent has no right and authority to claim pre-emption under Section 4 of the Partition Act in the instant suit filed by him. The learned Trial Judge framed as many as 12 issues. Parties led evidence in support of their respective cases and on the basis of the evidence on record adduced by the parties the learned Trial Judge decided the issues and suit was decreed in part in preliminary form in favour of the plaintiff in respect of his prayer for effecting partition of his share in the undivided suit property. Accordingly, the plaintiff got preliminary decree of partition of his undivided 12 decimals of land in the suit property. The defendants' share was also declared in preliminary form. However, prayer for pre-emption under Section 4 of the Limitation Act was refused by the learned Trial Court.
The plaintiff assailed the said Judgement and Decree passed by the learned Trial Judge in Title Suit No. 162 of 2004 by filing Title Appeal No. 90 of 2007. The Lower Appellate Court was pleased to allow the appeal in part and set aside the order of rejection of the application under Section 4 of the Partition Act passed by the learned Trial Judge in the said suit. Accordingly, liberty was given to the appellants to apply for pre-emption in proper form and application before the Trial Court.
The defendants/appellants have preferred the instant appeal challenging the Judgement and Decree passed by the First Appellate Court allowing the plaintiff/respondent's pre-emption in respect of their share under Section 4 of the Limitation Act.
It is ascertained from the record of the instant appeal that vide order dated 21st November, 2012 the Division Bench of this Court admitted the appeal for hearing on the following substantial question of law:-
Whether the Lower Appellate Court substantially erred in law in granting liberty to the plaintiff to apply for pre-emption to acquire the share of the defendant nos. 1 and 2 under Section 4 of the Partition Act, when the suit was instituted not by a stranger-purchaser.
Since the question of law involved in the instant appeal is very short and limited to proper appreciation of the provision of Section 4 of the Partition Act, the said provision is quoted below :-
"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 think 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."
Plain reading of the provision contained in Section 4 shows - (I) If a share of a dwelling house belonging to an undivided family is transferred to a stranger-purchaser; (ii) If such stranger-purchaser or the transferee files a suit for partition; (iii) If in the said suit a member of the joint family as a co-sharer files an application for pre-emption, then only the Court can pass an order of pre-emption in favour of the co-sharer/applicant after ascertaining the valuation of such share in the manner as the Court thinks fit and direct the transferee to effect the sale process in favour of the co-sharer. In the instant case, co-sharer has filed the suit for partition. The suit was not filed by the stranger-purchaser. Therefore, in this suit there cannot be any application of Section 4 of the Partition Act.
In this respect, we can also take into account the provision of Section 44 of the Transfer of Property Act. Section 4 of the Partition Act clearly states that the transferee of a share of a dwelling house belonging to an undivided family to which he is not a member, if files a suit for partition, a co-sharer of the said joint family property can pre-empt the share of the stranger-purchaser. On the other hand, the gravamen of Section 44 of the Transfer of Property Act is to maintain the integrity of the family dwelling house. It prevents introduction of strangers and undesirable persons into the undivided family dwelling house. Section 44 of the Transfer of Property Act creates a right with the co-owners to whom a new cause of action is given by the transferor co-owner as they are affected by the transfer. The right given to a co-sharer in respect of a family dwelling house under Section 4 of the Partition Act ripens only when the stranger-purchaser files a suit for partition of undivided family dwelling house.
The learned Lower Appellate Court failed to appreciate that the suit for partition was instituted by one of the co-sharers being the respondent no. 1 before this Court. In his suit, he cannot prefer pre-emption.
For the reasons stated above, I have no other alternative but to hold that the learned Judge in Lower Appellate Court was absolutely misconceived in interpreting the provision of Section 4 of the Partition Act and the Judgement and Decree passed by the learned Additional District Judge, 3rd Court, Nadia at Krishnagar in Title Appeal No. 90 of 2007 cannot be sustained.
Accordingly, the instant appeal is allowed on contest without cost. The Judgement and Decree passed by the learned Additional District Judge, 3rd Court, Nadia at Krishnagar in Title Appeal No. 90 of 2007 is set aside and that of Title Suit No. 162 of 2004 is affirmed.
Let a copy of this Judgement be sent down to the Court below along with the Lower Court Records forthwith.
Urgent photostat certified copy of this judgement, if applied for, be given to the learned advocates for the parties on usual undertakings.
(Bibek Chaudhuri, J.)