Calcutta High Court (Appellete Side)
Nemai Das & Ors vs Dipali Chattopadhyay & Ors on 21 February, 2022
Author: Harish Tandon
Bench: Harish Tandon
13 21.02.22 S.A. 17 of 2010
CAN 1 of 2021
Ct. No. 04
Akd
Nemai Das & Ors.
Vs.
Dipali Chattopadhyay & Ors.
-------
Mr. Partha Pratim Roy, Mr. Sarbananda Sanyal.
... for the appellants.
Mr. Joy Chakraborty, Mr. Partha Sarathi Ghosh, Mr. Sandip Dinda.
... for the respondents.
A preliminary decree affirmed by the first Appellate Court is sought to be assailed in the instant Second Appeal at the behest of defendant nos. 1 to 4.
Admittedly the suit property, being the dwelling house, belonged to Trigun Tarini Dasi, who left behind her surviving two sons, namely Tarini Das and Avoy Das, and one daughter, Bijali @ Bimala Dasi. The appellants are the heirs of Tarini Das and the defendant no. 5 in the suit is the heir of Bijali @ Bimala Dasi, i.e. the daughter. However, Avoy Das during his lifetime executed a deed of gift in favour of the plaintiffs/respondents, who tried to enter into the suit property, the dwelling house, which was restrained by the other co-sharers mainly the present appellants. Subsequently they filed a suit under Section 44 of the Transfer of Property Act, which was decreed on contest.
After the aforesaid decree having passed the plaintiffs/respondents filed a suit for partition, which was decreed in preliminary form by the Trial Court and affirmed by the Appellate Court.
It appears from the stand taken by the present appellants in the said suit that they wanted to reopen the issue of deed of gift executed by Avoy Das in favour of the plaintiffs/respondents, which was found 2 against them on the premise that Avoy Das during his lifetime wanted to get away with the deed of gift by filing a suit, which culminated into dismissal thereof.
Both the Court have rightly held that such issue cannot be reopened more particularly at the behest of the heirs of Tarani Das. However, the appellants appears to have been aggrieved by the observations of the Trial Court to the extent that the prayer under Section 4 of the Partition Act is not entertainable during the pendency of the suit, though it may be available thereafter. Such observation has been projected in the sense that the Court has, in fact, declined to entertain the prayer for preemption under Section 4 of the Partition Act, which is per se illegal and not in commensurate with the spirit of the Section as well as the judicial pronouncement in this regard.
Though normally we did not invite the respondents to intervene at the time of admission of the instant appeal under Order XLI Rule 11 of the Code of Civil Procedure, but such being the limited argument having advanced, we invited the Counsels representing the plainitiffs/respondents to address on the same issue.
The issue being whether Section 4 of the Partition Act is applicable during the currency of the suit or after the preliminary decree is passed in the partition suit or final decree or at the execution stage.
The learned Advocate for the plaintiffs/ respondents submits that the judgement of the Trial Court would reveal that an application under Section 4 of the Partition Act was filed by the appellant and such observation was made, as an argument was advanced on their behalf before the learned Judge. He further submits that the right under the aforesaid provision has not been shut down or foreclosed, which 3 would be evident from a categorical observation made by the first Court that such right may be asserted in future.
We are fix whether an application under Section 4 of the Partition Act was taken out by the appellants or not. We could have postponed the hearing of the matter, but after noticing the judgement of the Supreme Court in case of Ghantesher Ghosh v. Madan Mohan Ghosh reported in (1996) 11 SCC 446, decided to proceed with the hearing of the appeal at the stage of admission.
Section 4 of the Partition Act does not envisage any application to be taken out for buying the share of a stranger transferee by the member of the family in respect of a dwelling house. It would be evident from the aforesaid provision, 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 4 sub-section (2) of the last foregoing section."
What is sine qua none to make the provision applicable is that there must be a transfer of a share in respect of a dwelling house in favour of the stranger to the family by a co-sharer and such transferee sues for partition. The moment the stranger purchaser sues for partition, the right to claim preemption in favour of the co-sharer gets activated. There is no stage provided for applicability of the said provision as the same is restricted to a stage when the stranger purchaser suing for partition in respect of a dwelling house. Such question has been lucidly and succinctly answered by the Supreme Court in case of Ghantesher Ghosh (supra) holding that the applicability of Section 4 should not be restricted or squeezed but must be expanded not only at different stage of the suit but to the execution proceeding as well provided the execution case has not ended upon recording full satisfaction.
It is axiomatic to record the relevant excerpts from the said judgement in paragraph 17 thereof, which runs thus:
"17. As a result of the aforesaid discussion, it must be held that Section 4 of the Act can validly be pressed in service by any of the co-owners of the dwelling house belonging to the undivided family pending the suit for partition till final decree is passed and thereafter even at the stage of execution of the final decree for partition so long as the execution proceedings have not effectively ended and the decree for partition has not been fully executed and satisfied by putting the shareholders in actual possession of their 5 respective shares. Beyond that stage, however, Section 4 will go out of commission."
The words 'suing for partition' does not mean suing for filing a suit for partition. The moment stranger purchaser by his conduct or otherwise prays for decree of partition, such provision becomes automatically attracted and the moment the co-sharer approaches the Court and signifies his intention of buying the share of the stranger purchaser, it is the duty of the Court to make a determination strictly within the purview of Section 4 of the said Act.
We have given to understand that pending the instant appeal, the final decree of the partition suit has been passed and, in fact, an execution proceeding has also been launched, but the same has not ended in recording satisfaction as yet.
We, thus, modify the decree of the Trial Court to the extent that the observations pertaining to the claim under Section 4 of the Partition Act is contrary to the judgement of the Apex Court in case of Ghantesher Ghosh (supra), since there is no fetter on the part of the appellants to claim right under Section 4 of the said Act even at the execution stage.
Liberty is granted to apply and if such application is made, the Court shall determine the same strictly in accordance with the provisions contained under Section 4 of the Partition Act.
With these observations the instant Second Appeal is disposed of. In view of disposal of the appeal the connected application is accordingly disposed of.
(Harish Tandon, J.) (Rabindranath Samanta, J.) 6