Calcutta High Court (Appellete Side)
Moloy Kumar Ghosh & Others vs Samarendra Kumar Ghosh on 19 June, 2012
Author: Tarun Kumar Gupta
Bench: Tarun Kumar Gupta
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present: The Hon'ble Mr. Justice Tarun Kumar Gupta
S. A. 177 of 1998
Moloy Kumar Ghosh & Others
Versus
Samarendra Kumar Ghosh
For the appellants: Mr. Sabyasachi Bhattacharyya
Mr. Shohini Bhattacharyya
For the respondent: Mr. Sisir Kumar Bhowmick
Mr. Amritendu Bhowmick Judgment on: June 19, 2012 Tarun Kumar Gupta, J.:-
The defendants are the appellants against the impugned judgment of concurrence.
Respondent as the plaintiff filed a title suit being Title Suit No.47 of 1991 in the Court of learned Assistant District Judge, Baruipur 24 Parganas (S) praying for a preliminary decree of partition as well as a decree of pre-emption under Section 4 of the Partition Act, 1893. The plaint case in short is that the suit property and non-suit properties originally belonged to one Satya Prasad Ghosh and others. They partitioned their properties through a partition deed dated 21st September, 1930. AS per said partition deed, the suit properties and some other properties were allotted to Manmotho Nath Ghosh and another. Manmotho Nath Ghosh executed a will dated 29th November, 1931 appointing Satyendra Kumar Ghosh his executor. Sudhir Kumar Ghosh was the beneficiary under said will, which was duly probated. As per partition deed dated 21st September, 1930 and the will dated 29th November, 1931 the suit properties and non-suit properties devolved upon Sudhir Kumar Ghosh, father of the plaintiff Samarendra Kumar Ghosh and defendant No.1 Ramendra Nath Ghosh. After death of their father, plaintiff and defendant No.1 used to reside in their working place but kept the suit dwelling house as a joint propperty.
The suit property was a joint undivided dwelling house of the plaintiff and the defendant No.1. They appointed one Chapal Kumar Ghosh as caretaker for looking after the suit dwelling house. Defendant No.2 to 4 are the heirs of Chapal Kuamar Ghosh. Said Chapal Kumar Ghosh along with his family members used to reside in the suit property. Later on, defendant No.1 sold out his undivided share in said family dwelling house (bastu) to defendant No.2 to 4 who were nothing but strangers to the family. As defendant No.1 did not agree to partition the suit property and rather sold out his share of undivided dwelling house to the strangers the plaintiff filed this suit praying for a decree of partition in the preliminary form and also for a decree of pre-emption for purchase of the sold out share of the undivided dwelling house from the defendant No.2 to 4.
The defendant No.1 filed a written statement admitting, inter alia, that as he was in urgent need of money, he sold out his share of suit dwelling house to defendants No.2 to 4. He has further admitted that though the plaintiff demanded partition but he could not comply said request as he already sold out his share to defendants No.2 to 4.
Defendants No.2 to 4 contested the suit by filing a joint written statement. In the written statement, they alleged inter alia that the ancestral property of the plaintiff and the defendant No.1 was already partitioned between them by a partition deed on the strength of which the suit property fell in the share of the defendant No.1. Their father Chapal used to reside in the suit property with his family members as a caretaker at a salary of Rs.1,200/- p.a. Their father used to repair the house at his own cost and that their father was entitled to get Rs.49,500/- from the plaintiff as his remuneration and cost of repairing of the suit house. Both plaintiff and defendant No.1 had an agreement with their father for selling out the suit property to him. Being close relations they were regarded as family members of the plaintiff and the defendant No.1. Defendant No.1 sold out his portion to those defendants taking market price and that plaintiff is not entitled to get any decree of partition and / or pre-emption.
At the time of hearing of the second appeal, substantial questions of law are re- casted as follows:-
(a) Whether the learned courts below substantially erred in law by granting a decree of pre-emption under Section 4 of the Partition Act, 1893 in a co-owner's suit though the alleged stranger purchaser did not sue for or claimed partition.
(b) Whether the learned courts below substantially erred in law by declaring the suit property as an undivided family dwelling house as contemplated under Section 4 of the Act of 1893 without applying the correct legal tests.
(c) Whether the learned courts below substantially erred in law in assessing the valuation of the suit property irrespective of pre-emption by not applying correct legal tests.
Mr. Sabyasachi Bhattacharya, learned counsel for the appellant, submits that in order to get relief under Section 4 of the Partition Act, 1893, it has to be established that the suit property was an undivided family dwelling house and that a portion of it was sold away to the strangers without first offering the same to the other co-sharer and that stranger purchaser has initiated a move for getting partition and separate possession of his share. According to Mr. Bhattacharya unless all these three pre- conditions are satisfied, there cannot be any decree of preemption under Section 4 of the Partition Act, 1893.
Mr. Bhattacharya in this connection refers to exhibit B which is an unregistered agreement dated 15th January, 1964 in between plaintiff and defendant No.1 in one side and Chapal Kumar Ghosh, the father of the defendant No.2 to 4 on the other side. According to him in terms of the said agreement, both plaintiff and defendant No.1 agreed to sell out the suit property to their caretaker Chapal Kumar Ghosh for Rs.10,000/- with a further agreement that the yearly salary of Chapal Kumar Ghosh as caretaker would be deducted from such consideration money of Rs.10,000/- year to year till said consideration money is paid up in this way and thereafter Chapal Kumar Ghosh would be entitled to get a kobala to be executed by the plaintiff and the defendant No.1.
However, Mr. Bhattacharya, admits that said agreement by itself cannot create any right, title or interest of Chapal Kumar Ghosh in the suit property so long there was no registered sale deed.
Mr. Bhattacharya has drawn my attention to the evidence of the plaintiff and other witnesses to impress upon this Court that the plaintiff and the defendant No.1 used to stay in their respective places of service and that they used to come to the suit dwelling house only once in a year during puja for staying there for few days.
Mr. Bhattacharya refers to the case law reported in AIR 1974 Calcutta 14 (Durgapada Paul vs. Debdas Mukherjee & Ors.) wherein this Court held that when co-sharers used the alleged dwelling house in the village for collection of paddy and for attending the kalipuja in the adjoining plot and they were separate in mess and that they used to stay in said village house for short period when they came from different places, said house cannot be treated as "dwelling house" within the meaning under Section 4 of the Partition Act, 1893.
Mr. Bhattacharya has next referred case laws reported in AIR 2000 SC 2684 (Babulal vs. Habibnoor Khan) (dead) by L.R.s. & Ors. and also AIR 2002 SC 2434 (Gyan Chand & Anr. Vs. Sumat Rani & Ors.) to impress upon this Court that so long the stranger purchaser does not seek actual division and possession either in the suit or in the execution proceedings, a co-sharer cannot in a suit brought for partition by him or by another co-sharer, exercise right under Section 4 of the Partition Act, 1893.
According to Mr. Bhattacharya as the suit property cannot be treated as an undivided family dwelling house within the meaning of under Section 4 of the Partition Act, 1893 and the alleged stranger purchaser did not seek for actual division and possession in the suit, then plaintiff co-sharer in this suit for partition has no right to get any decree for preemption.
Mr. Sisir Kumar Bhowmick, learned counsel for the respondent, submits that learned Courts below came to a concurrent findings of fact that the suit property was an undivided ancestral family dwelling house of the plaintiff and defendant No.1 and that said concurrent findings of fact cannot be interfered by this High Court while hearing a second appeal under Section 100 of the Code of Civil Procedure. In this connection, he refers case laws reported in (2011) 11 SCC page 628 (Amiya Bala Dutta and others vs. Mukut Adhikari and others), (2002) 6 SCC page 375 (Ram Khilona and others vs. Sardar and others) and 99 CWN page 1016 (Aurobindo Karuri and another vs. Vishnu Prasad Karuri). In the referred case laws it was held by the Hon'ble Courts that High Court while hearing a second appeal under Section 100 of the Code of Civil Procedure should not interfere with concurrent findings of fact of learned Courts below unless the same was based on no evidence, or on extraneous matters or disregarding settled principles of law. The above proposition of law is well settled and requires no further discussion.
In this connection Mr. Bhowmick further submits that Durgapada Pal's case (supra) as referred by learned counsel for the appellant, is not applicable in this case as the facts of said case materially differed from the facts of the present case. In this connection he further submits that it is an admitted fact that as the co-sharers of the undivided dwelling house namely plaintiff and defendant No.1 used to reside in their respective places of occupation, they maintained the dwelling house by keeping one Chapal Kumar Ghosh, father of defendants No.2-4 as a caretaker against payment and hence the co-sharers of said dwelling house had their possession in said undivided dwelling house through said caretaker and it cannot be said that it was only used for the purpose of stray visit of the co-sharers as it was in Durgapada Pal's case (supra).
I am in complete agreement with Mr. Bhowmick in this issue. It came out from evidence on record as well as from the admission of the parties that Chapal Kumar Ghosh, the father of defendants No.2-4, was permitted by the parties of this suit namely plaintiff and defendant No.1 to occupy the suit dwelling house as a caretaker against a remuneration. As such, the co-sharers of the suit dwelling house namely plaintiff and defendant No.1 used to maintain their possession therein through said caretaker over and above their annual visit to said dwelling house during puja. It is thus apparent that said co-sharers did not abandon the dwelling house and rather maintained the same by employing a caretaker. In the kobala executed by defendant No.1 in favour of defendants No.2-4 it was also admitted that it was an undivided dwelling house and that the defendant No.1 was selling his undivided share to defendants No.2-4. As such it was well-established from the evidence on record, both oral and documentary, that the suit property was an undivided family dwelling house of the parties namely plaintiff and defendant No.1.
It was concurrent findings of fact of both the Courts below that defendants No.2 to 4 though they were relatives of the parties namely plaintiff and defendant No.1, but were not their family members and as such strangers within the meaning of Section 4 of the Partition Act. During hearing said findings of fact were not challenged.
Mr. Bhowmick next submits that the suit for partition together with a prayer for pre-emption under Section 4 of the Partition Act was filed in 1991 and that a preliminary decree was passed on 30th November, 1993 after contested hearing. He further submits that the First Appeal was filed in 1993 and that it was dismissed on 21st December, 1994. According to Mr. Bhowmick the Special Bench (three Judges' Bench) decision of this High Court passed in the case of Siba Prosad Bhattacharyya and Ors. vs. Bibhuti Bhusan Bhattacharyya and Another) as reported in 92 CWN page 513 laid down the prevailing law regarding applicability of Section 4 of the Partiion Act. According to him, it was held in said case that the right of pre-emption under Section 4 of the Partition Act is available to a co-sharer of an undivided family dwelling house when he himself files a suit for partition and the stranger purchaser is arrayed as a defendant, irrespective of the fact whether the stranger purchaser has actually applied for partition or for separate allotment of his share or not. According to him, it was further held in said case that the parties of the suit for partition being interchangeable, the right to claim separate allotment is germane in any party, be he the plaintiff or the defendant in the suit for partition, and in such case the right of pre- emption cannot be defeated only because on or before the filing of the application for pre-emption under Section 4 of the Partition Act, the stranger-purchaser, as defendant, did not ask for separate allotment.
According to him, on the basis of said Special Bench Judgment another judgment in the same line was passed by this Court in the case of Kartick Chandra Basu and another vs. Subal Chandra Mandalas reported in 94 CWN page 2070. Mr. Bhowmick further submits that at the time of passing of the judgments either by the learned Trial Court or by the learned Lower Appellate Court said Special Bench judgment of this Court as referred above was the settled law regarding applicability of pre-emption under Section 4 of the Partition Act and that learned Courts below applied said settled law and passed the preliminary decree of pre-emption. According to him, subsequent judgment of Supreme Court passed in 2000 cannot unsettle the judgments already passed in accordance with law as laid down by said Special Bench, as said Supreme Court judgment passed in 2000 had no retrospective effect. In this connection Mr. Bhowmick further submits that during pendency of the appeal in the learned Lower Court at the instance of the decree holder plaintiff, the sale deed in terms of pre-emption decree was executed through Court on 1st of February, 1994 after serving notice to the defendants and that pre-emption part was completed by the time this appeal came up for hearing and that at this stage there is no scope of reopening the same on the basis of judgment of Hon'ble Supreme Court passed in 2000 which had admittedly no retrospective effect.
Before taking up the submissions of Mr. Bhowmick on this score let me first see the law on this point as laid down by Hon'ble Apex Court. In the case of Ghanteswar Ghosh vs. Madan Mohan Ghosh as reported in AIR 1997 Supreme Court at page 471 the Hon'ble Apex Court held that Section 4 of the Partition Act has to be strictly construed and should not be interpreted liberally to give the right to the co- sharer to pray for pre-emption even if the stranger purchaser is simply arrayed as a defendant and did not take any action for partition and separate possession of his share. This view was followed in subsequent cases also namely Babulal vs. Haabiboor Rahaman as reported in AIR 2000 SC page 2684, Goutam Pal vs. Debi Ram Pal AIR 2001 SC 61, Srilekha Ghosh vs. Partha Sarathi Ghosh AIR 2002 SC page 2500 and Gyan Chand vs. Sumar Rani AIR 2002 SC 2434. Therefore, the Hon'ble Apex Court has settled the applicability of the claim of pre-emption under Section 4 of the Partition Act by laying down the following principles:-
(1) In a suit for stranger purchaser for partition, a co-sharer of the undivided family dwelling house can apply for pre-emption under Section 4 of the Partition Act at any stage of the suit.
(2) But when a suit for partition is filed by a co-sharer against the other co-
sharers and the stranger purchaser, the right to apply for pre-emption would only arise when the stranger purchaser seeks separate allotment of his share.
(3) So long no such step is taken, the co-sharer's petition filed under Section 4 of the Act., cannot be entertained.
(4) In Gautam Paul's case (supra), the Supreme Court has made it clear that in the meantime the right of the co-sharer shall be protected by the second part of Section 44 of the Transfer of Property Act and the stranger purchaser shall be resisted by injunction to take possession or even if he has taken possession, he can be evicted in an appropriate proceedings under the law.
Now let me examine the submissions made by Mr. Bhowmick.
An appeal including the second appeal is nothing but the continuation of the lis if not the continuation of the suit. At the time of disposing of the appeal be it the first appeal or the second appeal the Court is bound to dispose of the lis between the parties as per the law standing on that day. In the above referred case laws of Hon'ble Apex Court, Hon'ble Supreme Court did not lay down any new law and rather interpreted the law under Section 4 of the Partition Act. As such, there is no question of having any retrospective effect of said law as laid down by the Hon'ble Apex Court. If any suit under Section 4 of the Partition Act including appeals therefrom was already disposed of, having no appeal pending in any forum, then there was no question of reopening those cases in view of subsequent decision of Hon'ble Apex Court. But as second appeal is continuation of the lis the Court is bound to apply the law of the land as on date for determining the dispute between the parties. As such, the above referred case laws of the Hon'ble Apex Court are very much applicable for determining the lis in this pending second appeal. As admittedly the stranger purchaser defendants namely defendants Nos. 2-4 neither filed the suit for partition nor took any step for allotment of their shares in said suit, the plaintiff co-sharer was not entitled to get an order of pre-emption under Section 4 of the Partition Act.
It is true that before filing of the suit said stranger purchasers namely defendants Nos. 2 to 4 were put into possession of their vendors' share.
Mr. Sisir Kumar Bhowmick, learned counsel for the respondent, submits that as stranger purchasers were given possession by the other co-sharer (defendant No.1) the plaintiff was entitled to recover possession under Section 44 of the Transfer of Property Act. In support of his contention he has referred case laws reported in AIR 1990 Supreme Court page 867 (Dorab Cawasji Warden vs. Coomi Sorab Warden) and AIR 1996 Allahabad 342 (Salim vs. First Additional Civil Judge, Senior Division). It was held in these case laws that if a stranger purchaser comes into possession in a portion of an undivided family dwelling house then other co-sharers had rights of ousting him from said undivided family dwelling house by an order of mandatory injunction.
Section 44 of the Transfer of Property Act runs as follows:-
"Where one of two or more co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred.
Where the transferee of a share of a dwelling house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house."
In terms of the second part of Section 44 of the Transfer of Property Act, co- sharers have right to obstruct possession of the portion of the undivided family dwelling house by the stranger purchaser. From the cases of Warden (supra) and Salim (supra) it appears that even if the stranger purchaser managed to take possession of a portion of the undivided family dwelling house on account of his purchase then other co-sharers have right to interfere and obtain an order of ouster of said stranger purchaser. But Section 44 of the Transfer of Property Act is a shield and not a sword. Even if by application of Section 44 of the Transfer of Property Act the possession of a stranger purchaser in a portion of the undivided family dwelling house can be obstructed or can even be nullified by ousting him in exceptional cases, through a Court of law in an appropriate proceeding, but the same cannot give right of pre-emption under Section 4 of the Act so long the conditions as laid down under Section 4 of the Partition Act as interpreted by Hon'ble Apex Court in various cases as stated above are fulfilled.
It is true that in this case the purchase deed of plaintiff respondent was executed through Court as far back as on 1st of February, 1994 after service of notice to the appellant defendants though respondent plaintiff did not get possession of the same uptill now. But said execution of the deed through court cannot entitle the respondent plaintiff to obtain possession by applying the law of pre-emption so long the conditions required for application of Section 4 of the Partition Act as laid down by the Hon'ble Apex Court are not fulfilled.
I have already stated that these conditions were not fulfilled in this case. As such, impugned judgment and decree so far the same related to the order of allowing pre-emption are not sustainable in law.
As a result, the appeal is allowed in part on contest but without cost. The impugned judgment and decree so far the same related to allowing the prayer for pre- emption under Section 4 of the Partition Act are hereby set aside. The deed of sale already executed through Court on 1st of February, 1994 stand cancelled. The respondent plaintiff is, however, at liberty to withdraw the money already deposited in the Court.
Learned Trial Court should also ask the plaintiff to deposit in the Court the deed executed through Court for forwarding the same to the concerned Registry Office for noting cancellation of the same in the office record.
Send down the Lower Court records along with a copy of this judgment to the Lower Court at the earliest.
Urgent photostat certified copy of this judgment be supplied to learned counsels of the parties, if applied for.
(Tarun Kumar Gupta, J.)