Calcutta High Court
Gopal Chandra Mitra And Ors. vs Kalipada Das And Ors. on 23 December, 1986
Equivalent citations: AIR1987CAL210, 91CWN799, AIR 1987 CALCUTTA 210, (1987) 91 CAL WN 799, (1987) 1 CAL HN 214, (1987) 2 BOM CR 224
JUDGMENT A.M. Bhattacharjee, J.
1. The only question that has arisen for our consideration in this appeal is what should be the relevant date with reference to which the Court shall make a valuation under Section 4(1) of the Partition Act, 1893. Under the first paragraph of Section 44 of the Transfer of Property Act, if a co-owner of an immovable property transfers his share, the transferee thereby acquires the transferor's right to joint possession and also his right to enforce partition. But the second paragraph of that section, however, provides that if the property transferred is a share in a dwelling-house belonging to an undivided family and the transferee is not a member of that family, then the transferee does not acquire any right to joint possession and all that he acquires by such transfer is only a right to enforce partition. But as a result of Section 4 of the Partition Act even that right to enforce partition may be reduced almost to a bare right to sue without a right to the share as that section provides that in a suit for partition, whether by or against such transferee, any member of that undivided family having a share in the dwelling-house may undertake to buy the transferred share and that on such undertaking having been made, "the Court shall.....make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder" member. In a sense, therefore, Section 4 of the Partition Act goes a long way to take away what para 2 of Section 44 of the Transfer of Property Act purports to give to the transferee.
2. As already indicated, the only question involved in this appeal is what should be the relevant date with reference to which "the Court shall make a valuation of such share" under Section 4(1) of the Partition Act before directing under that section the re-sale thereof to the shareholder-member who has undertaken to purchase the same. The provisions of Section 4(1) are reproduced hereunder for the facility of discussions : --
"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."
3. The words "and such transferee sues for partition" may, at the first blush, give rise to the impression that Section 4 would come into play only when such transferee as a plaintiff sues for partition. But in a partition suit, every party thereto, whether arrayed as a plaintiff or a defendant, in effect sues for as well as is also sued for partition and therefore the section would operate even when the transferee does not initiate or proceed with the suit for partition as a plaintiff but is proceeded against as a defendant. This is now the settled law as has been pointed out by a Division Bench of this Court in. its decision in an earlier proceeding arising out of the suit giving rise to this present proceeding and which has since been reported in Santosh v. Kalipada, . Now, when such a suit for partition is filed to which the transferee is a party. Section 4(1), as quoted above, contemplates three steps for its invocation and compliance-- (a) an undertaking by a member-shareholder to purchase the share of the transferee, (b) a valuation of such share made by the Court in such manner as it thinks fit, (c) an order by the Court directing the sale of such share to such shareholder. All that a member-shareholder is to do is to undertake to buy the share of the transferee and once that is done, it would then be for the Court to make the valuation and to direct sale. Though the member-shareholder can enforce resale of the share by the transferee only after an order directing such resale is made by the Court, his right to acquire the property nevertheless accrues to him on his making the undertaking, to purchase and once a valid and legally competent undertaking to purchase is made by the member-shareholder, he has nothing more to do to obtain the valuation and the direction to resale and those would follow almost as a matter of course as, in view of the words "the Court shall" in Section 4(1), the Court does not appear to have any option in the matter. That being the position it would be quite reasonable to hold that the valuation of the share is to be made with reference to the date when the member-shareholder has undertaken to buy the share transferred. This also, in effect, appears to be the view of Bagchi, J. in his separate but concurring judgment in the Division Bench case in Surendra Nath v. Ram Chandra, (1971) 75 Cal WN 195 at p. 215 where the learned Judge has held that the market value of the share as obtaining on the date of application under Section 4 of the Partition Act is to be taken into consideration for the purpose of valuation. The same also appears to be the considered view of Monjula Bose, J., in Monomohan v. Usharani, where the learned Judge has held that the valuation should be made as on the date when an undertaking is given by the member-shareholder to buy the share in question.
4. But even though the relevant date for the purpose of determining the valuation is the date when an application is made 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 legally 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 instituted. But, as has been pointed out by a Division Bench of this Court in Niranka Sashi Roy v. Swaragnath, AIR 1926 Cal 95 at p. 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, 75 Cal WN 195 at p. 209 (supra) that '"appropriate stage for making the application for final decree of partition by appointing a Commissioner to effect partition by metes and bounds 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.
5. Our attention has been drawn to a very recent decision of the Supreme Court in Kishore Chand v. Dharam Pal, , where, as it appears from the report (Paras 5 to 11), the valuer "was directed to value the property as on the date of the order". This was, however, not a case under Section 4 of the Partition Act and the question as to the relevant date with reference to which valuation under Section 4(1) of the Act is to be made, and whether such date would be the date of the undertaking by the party or the date of order by the Court or any other date, does not appear to have been raised or discussed in any way. This decision, therefore, is never an authority on the question as to the relevant date with reference to which the valuation is to be made under Section 4(1) of the Partition Act.
6. In the case at hand, the transferee himself has purchased the share in the dwelling-house after a preliminary decree was passed in the partition suit declaring the share of his transferor and, therefore, the applications under Section 4(1) undertaking to purchase the share of the transferee were obviously made after the preliminary decree.
That being so, for the reasons stated hereinbefore, the valuation of the share transferred would have to be made with reference to the dates of such applications and undertakings. The learned trial Judge having directed valuation to be made with reference to such date by the impugned order, we find no reason to interfere therewith. The appeal accordingly fails and is therefore dismissed, but without any order as to costs. A copy of this order along with records of the case, if any, to go down to the Court below forthwith.
Shyamal Kumar Sen, J.
7. I agree.