Orissa High Court
Sanatan Sahu (Dead) After Him His L.Rs. ... vs Naran Behera And Ors. on 14 March, 2003
Equivalent citations: 96(2003)CLT50
Author: P.K. Tripathy
Bench: P.K. Tripathy
JUDGMENT P.K. Tripathy, J.
1. Defendant No. 18 in Title Suit No. 59 of 1978 was the sole appellant in this First Appeal. The above noted appellants were substituted in his place after his death. Plaintiffs are the respondent Nos. 1 to 3 and they are the contesting respondents in this appeal/
2. In the suit, plaintiffs sought for the following reliefs :
"(a) Let the plaint 'C' Schedule properties be partitioned with the help of a Civil Court Commissioner and AO-05-05 of lands of the share of the plaintiffs and AO-3-05 purchased by the plaintiffs be allotted to the share of the plaintiffs be allotted to the share of the plaintiffs and possession of the be delivered to the plaintiff through Court.
(b) Relief under Section 4 of the Partition Act be given to the plaintiffs in respect of lands purchased by defendants 13 to 24 out of the 'C' Schedule lands.
(c) The order dt. 13.4.78 passed in Misc. Case No. 9 of 1976 be set aside.
(d) *****
(e) *****"
The Schedule 'C' property has been described in the plaint in the following manner :
SCHEDULE-C Dist-Cuttack, P.S. Korai, Mouza Naudapur, Khata No. 186.Plot No. 78
AO-16 Plot No. 85 AO-07 Plot No. 86 AO-05 Plot No. 87 AO-05 Total AO-33 decs.
3. Plaintiffs case is that, Sankar Behera is the common ancestor. He had six sons, namely Fakira, Kabi, Abhina, Bira, Nilai and Dai. , Plaintiffs are the descendants of Kabi. Defendants No. 1 to 12 are the descendants of the other branches and other defendants are purchasers. The 'C' Schedule property, as alleged in the plaint, is an undivided homestead land of the said joint family. The members of the joint family were in separate possession of the suit property for the sake of convenience. While in such separate possession, each branch dealt with the property in their respective possession separately and even executed sale deeds either to other branches or outsiders. One of such sale deeds is in favour of the plaintiffs and some of the sale deeds are in favour of defendants 13 to 24. Relating to the dispute on possession between the appellants and the plaintiffs/respondents, there was a proceeding under Section 145, Cr.P.C and possession of the appellants was declared in that proceeding. That is one of the cause of action to institute the suit for partition and claiming the relief under Section 4 of the Partition Act. The Plaintiffs/respondents while claiming a prior partition in the family also asserted their right, title, interest and possession over a portion of the 'C' Schedule property and over other portion they claimed right of pre-emption under Section 4 of the Partition Act. Several issues were framed and the trial Court i.e., learned Subordinate Judge, Jaipur granted a decree for partition in favour of the plaintiffs. While deciding issue Nos. 5 and 6 he held that the vendees under sale deeds Exts. A and B being co-owners in respect of the lands held by them out of the undivided suit homestead, it is deemed that they amicably possessed the lands in dispute and for the sake of convenience allowed the prayer of the plaintiffs to exercise the right of pre-emption.
4. While not challenging to any other findings recorded by the Courts below on other issues, the appellants challenge to the legality and propriety of the finding on Issue No. 6. Learned counsel for the appellants argues that the relief under Section 4 of the Partition Act is not available to the plaintiffs when the appellants have not filed the suit for partition. In support of their contention appellants relies on the ratio in the cases of Babulal v. Habibnoor Khan (Dead) by L.Rs. and Ors., AIR. 2000 SC 2684; Gautam Paul v. Debi Rani Paul and Ors., AIR 2001 SC61; and Srilekha Ghosh (Roy) and Anr. v. Partha Sarathi Ghosh, AIR 2002 SC 2500. Learned counsel for the plaintiffs/respondents while not disputing, to the correctness of the ratio propounded by the Apex Court in the above cited decisions, however, argues that plaintiffs' interest be protected under Section 44 of the Transfer of Property Act. In that respect learned counsel for the appellants replies that since the suit land is not a house and only a homestead land and that to such property is in their possession, therefore the provision under Section 44 of the T.P. Act may not be invokable at this stage.
5. Section 4 of the Partition Act reads as hereunder :
"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 share holders severally undertake to buy such share, the Court shall follow the procedure prescribed by Sub-section (2) of the last foregoing Section."
Keeping in view the above quoted statutory provision the Apex Court in the above cited decisions have over-ruled the views of different High Courts that the right of pre-emption can be invoked by the coparcener or co-sharer of a joint Hindu family in a suit instituted for partition by a coparcener or member of the joint family. The Apex Court has observed that unless the suit for partition is brought by the purchaser, the right of pre-emption is not invokable by members of the joint family or coparcener under Section 4 of the Partition Act. However, the Apex Court in the case of Gautam Paul (supra) have ruled that the right of coparcener to invoke the provision under Section 44 of the T.P. Act is not obliterated. At appropriate stage of the proceeding, be it final decree proceeding or execution proceeding, if so advised, plaintiffs may invoke that right appropriately. That being the settled position of law and when there is absolutely nothing in the pleading relating to exercise of the right flowing in their favour under Section 44 of the Transfer of Property Act, at present plaintiffs' claim for exercising the right under Section 44 of the T.P. Act is not considered. Be that as it may at appropriate stage of the proceeding if the plaintiffs or any other member of the joint family shall advance any contention to exercise the right under Section 44 of the T. P. Act that snail be duly considered by the Courts below but strictly in accordance with law. At that stage if such contention of the plaintiffs shall be found entertainable under law then any finding in this judgment shall not be construed as an impediment to decide such claim in lawful manner. The aforesaid observation will meet the ends of justice to cater to the needs of the parties for a proper adjudication of the said rights after affording due opportunity of hearing to all parties.
6. Coming to the prayer of the appellants, in view of the settled position of law, this Court has no hesitation to record the finding that the finding and decision on Issue No. 6 is contrary to the provision of law and therefore the same is liable to be set aside, In other words, the judgment of the Court below granting to the plaintiffs the relief under Section 4 of the Partition Act is set aside. Accordingly, the impugned decree stands modified to that extent.
7. In the result, the appeal is allowed on contest against the plaintiffs/respondents and ex parte against the other respondents. Parties are directed to bear their respective cost of litigations. Hearing fee is assessed at contested scale.