Calcutta High Court (Appellete Side)
Bulu Sarkhel vs Kali Prasad Basu & Ors on 23 December, 2011
Author: Tarun Kumar Gupta
Bench: Tarun Kumar Gupta
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present: The Hon'ble Mr. Justice Tarun Kumar Gupta
S. A. No.226 - 229 of 1999
Bulu Sarkhel
Versus
Kali Prasad Basu & Ors.
For the appellant: Mr. Sudhis Dasgupta
Mr. Achinta Kumar Banerjee
Sk. Faridullah
For the respondents: Mr. S. P. Roy Chowdhury
Mr. P. K. Nandi Ms. Lina Roy Mr. Somnath Nag Judgment on: December 23, 2011 Tarun Kumar Gupta, J.:-
These appeals were taken up for hearing analogously as they arose out of a common judgment and decree dated 23rd February, 1998 passed by learned Additional District Judge, 5th Court at Alipore disposing Appeal No.321 of 1995, 338 of 1992, 382 of 1995 and 72 of 1996.
Kali Prasad Basu and Goutam Basu filed Title Suit No.79 of 1990 alleging that Manorama Bose, mother of present plaintiffs and defendant No.1 - 4 was owner of a 2 two storeyed building at 5/12 A Riffle Range Road, P. S. Karia and that on her death on 19th of October, 1974 plaintiffs and defendant Nos. 1 / 4 inherited said property each having 1/6th share in said undivided two storeyed building having four flats, two in each row. Plaintiffs and defendant No.3 were residing in the premises. The northern flat in the first floor was constructed by the defendant No.1 with consent of other co-sharers and started to reside there with his family members. On 5th of September, 1976 defendant No.1 produced a typed paper for signature of other brothers and sisters for the proposal of construction of said flat by defendant No.1 for accommodation of his family members. Other co-sharers signed in said paper in good faith but later on defendant No.1 illegally sold out said flat to an outsider (defendant No.5) though said flat was an accretion to said joint property. The defendant No.1 had no right to sell out a part of the joint dwelling house to a stranger (defendant No.5) as there was oral agreement between the co-sharers that before selling to an outsider by a co-sharer, other co-sharers should be offered first for purchase. Said flat was sold showing consideration of Rs.1,10,000/-. Accordingly plaintiffs filed said suit for partition as well as for purchase of the flat sold to an outsider (defendant No.5) by invoking Section 4 of the Partition Act.
The defendant No.2 filed a written statement adopting the plaint case. Defendant Nos. 3 and 4 being married daughters of Manorama Bose did not contest the suit by filing any written statement.3
Defendant No.1 contested said suit by filing written statement alleging inter alia that he constructed said northern side first floor flat with his own money and that it was his personal property and not joint property and was not subject to partition. It was his further case that before selling to defendant No.5 he offered to sell the same to other co-sharers but except plaintiff No.1 none expressed willingness and plaintiff No.1 also failed to offer the market price and accordingly he sold out the same to defendant No.5 and handed over possession to her. It was his further case that in terms of agreement dated 5th of February, 1976 all the co-sharers agreed that defendant No.1would be absolute owner of said northern side flat to be constructed by him and hence said property cannot be included in the joint family property schedule.
Defendant No.5 also filed written statement alleging inter alia that in view of agreement dated 5th September, 1976 the northern side first floor flat was personal property of the defendant No.1 and not ejmal property and hence there was no scope of putting it into hotchpotch of partition suit or exercising any right of pre-emption under Section 4 of the Partition Act. It was further alleged that after purchase of said property she spent Rs.1,25,000/- for renovation and repair within the knowledge of other parties of the suit.
Learned Trial court decreed the suit declaring 1/6th share each of six children of Manorama Bose and allowed the prayer of plaintiff No.1 and defendant No.2 for 4 purchase of the property sold out to defendant No.5 under Section 4 of the Partition Act at a consideration of Rs.1,40,000/-.
Plaintiffs preferred Title Appeal No.338 of 1995 contending inter alia that learned Trial Judge should have held that stranger purchaser was entitled only to the price of the undivided share as per valuation to be made by the Court and no cost of addition, alteration or interest was admissible to her and that learned Trial Court was wrong in directing the payment of additional Rs. 40,000/- over and above consideration money of Rs.1,10,000/-.
The defendant No.2 filed Title Appeal No.382 of 1995 on same grounds. Defendant No.1 preferred Title Appeal No.72 of 1996 alleging that learned Trial Court failed to note that there was agreement between co-sharers that defendant No.1 would be absolute owner of the northern side flat after its construction with his own cost and that document executed in between the parties on that score was not considered in its proper perspective and that said flat was not a part and parcel of the joint family property and that no co-sharer was willing to purchase said property when it was offered for sale by defendant No.1 and that the judgment so far as related to said flat was not sustainable in law.
The same points were canvassed in Title Appeal No.321 of 1995 preferred by defendant No.5.5
After contested hearing learned Lower Appellate Court affirmed the judgment and decree of Trial Court with some modifications namely by enhancing reserved price for pre-emption to Rs.1,50,000/- together with interest as may be assessed by the Partition Commissioner and that 1/6th share of the defendant No.1 facing northern side first floor flat shall be sold to the co-sharer who would pay the highest price above the reserved price to be fixed by the learned Trial Court.
From said common judgement again these four second appeals have been preferred by the parties in the same line as in the learned Lower Court.
At the time of admission of this second appeals the following substantial questions of law were framed:-
(1) Whether the effect of exhibit A-1 would amount to waiver of the rights of pre-emption, if there be any, under section 4 of the Partition Act, on the part of the plaintiffs.
(2) Whether in view of exhibit A-1, the property comprising the portion built up by the vendor of the appellant, could be said to constitute a joint dwelling house.
(3) Whether the valuation for the purpose of pre-emption if the right could be said to be available, could be said to have properly been made, then admittedly, it was not valued on the basis of market price, and 6 (4) Whether in view of the admitted letting out of the portion of the disputed property, the property could be said to constitute a joint dwelling house.
However, at the time of hearing of argument another substantial question of law namely whether learned Courts below substantially erred in law by allowing prayer of pre-emption under Section 4 of the Partition Act when stranger purchaser did not sue for partition, was framed.
Learned counsels of both sides argued only on this additional point and other points were not at all agitated.
Mr. Sudhis Dasgupta, learned counsel for the appellant defendant No.5, has submitted that admittedly suit property belonged to Manorama Bose, mother of plaintiffs and defendant Nos. 1-4 and that on her death in 1974 each of those parties inherited 1/6th share in the suit property left by Manorama Bose. His only contention is that admittedly defendant No.1 being a co-sharer of the property sold out the northern side first floor flat to defendant No.5 on receipt of valuable consideration and handed over possession of the same in favour of defendant No.5. Said sale took place as far back as in 1990 and since then defendant No.5 was continuing her possession therein. According to Mr. Dasgupta, in order to invoke the right of pre- emption under Section 4 of the Partition Act the Court has to see that the conditions mentioned therein were fulfilled and strictly fulfilled. According to him, the right of 7 pre-emption under Section 4 of the Act can only be exercised when a transferee of a portion of a family dwelling house sues for partition. According to him, defendant No.5 being transferee of a portion of a dwelling house did not file any suit or take any step whatsoever for partition of the property and hence Section 4 was not applicable in the case in hand and learned Courts below committed substantial error in this regard. In support of his contention he referred case laws reported in (1996) 11 Supreme Court Cases 446 (Ghantesher Ghosh vs. Madan Mohan Ghosh and others) and (2000) 8 Supreme Court Cases page 330 (Gautam Paul vs. Debi Rani Paul and others).
Mr. S. P. Roy Chowdhury, appearing for plaintiffs, on the other hand, has submitted that during trial defendant No.5 (stranger / purchaser) prayed for correct valuation of the flat purchased by her from defendant No.1 and that it amounted to admitting the right of pre-emption of other co-sharers in respect of that property by paying adequate money to her. Mr. Roy Chowdhury has further submitted that at the prayer of said stranger/purchaser (defendant No.5) learned Courts below enhanced the valuation and hence defendant No.5 is now estopped from challenging the order of pre-emption.
For proper appreciation of the contentions of learned senior counsels it may be worthy to note the wordings of Section 4 of the Partition Act which stands as follows:-
8
.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. [Emphasis added] (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.
The term "suing for partition" has not been defined in the Partition Act. However, Hon'ble Apex Court has dealt with that issue in Ghantesher Ghosh's case (ibid) by observing as follows:-
"Amongst other conditions, Section 4 requires for its applicability that such stranger transferee must sue for partition and only in that eventuality the rights of pre-emption envisaged by Section 4 can be made available to the other contesting co- owners. This section does not provide as a condition for its applicability that such stranger transferee must file a suit for partition. The words "transferee sues for 9 partition" are wider than the words "transferee filing a suit for partition". The latter phraseology is conspicuously absent in the section. The Partition Act does not define the words "suing for partition". The terminology "suing for partition" would not necessarily mean filing of a suit in the first instance by the transferee. If a transferee seeks to execute any final decree for partition in favour of his transferor co-owner, he can be said to have initiated a legal action for redressal of his decretal right as a stranger transferee. Any legal action taken by anyone for getting redressal from a law court and for vindicating his legal right on which such action is based can be said to have sued in a court of law."
In Goutam Paul's case (ibid) Hon'ble Apex Court held as follows:-
"There is no law which provides that co-sharer must only sell his/her share to another co-sharer. Thus strangers/outsiders can purchase shares even in a dwelling house. Section 44 of the Transfer of Property Act provides that the transferee of a share of a dwelling house, if he/she is not a member of that family, gets no right to joint possession or common enjoyment of the house. Section 44 adequately protects the family members against intrusion by an outsider into the dwelling house. The only manner in which an outsider can get possession is to sue for possession and claim separation of his share. In that case Section 4 of the Partition Act comes into play. Except for Section 4 of the Partition Act there is no other law which provides a right to co-sharer to purchase the share sold to an outsider. Thus before the right of 10 pre-emption, under Section 4, is exercised the conditions laid down therein have to be complied with. One of the conditions is that the outsider must sue for partition. Section 4 does not provide the co-sharer a right to pre-empt where the stranger/outsider does nothing after purchasing the share."
"Even though a liberal interpretation may be given, the interpretation cannot be one which gives a right which the legislatures clearly did not intend to confer. The legislature was aware that in a suit for partition the stranger/outsider who has purchased a share would have to be made a party. The legislature was aware that in a suit for partition the parties are interchangeable. The legislature was aware that a partition suit would result in a decree for partition and in most cases a division by metes and bounds. The legislature was aware that on an actual division, like all other co-sharers, the stranger/outsider would also get possession of his share. Yet the legislature did not provide that the right for pre-emption could be exercised "in any suit for partition". The legislature only provided for such right when the "transferee sues for partition". The intention of the legislature is clear. There had to be initiation of the proceedings or the making of a claim to partition by the stranger/outsider. This could be by way of initiating a proceeding for partition or even claiming partition in execution. However, a mere assertion of a claim to a share without demanding separation and possession (by the outsider) is not enough to give to the other co-sharers a right of pre-emption."11
From the judgments of Hon'ble Apex Court as referred above it is clear that before invoking the right of pre-emption of a co-sharer against a stranger purchaser of a dwelling house under Section 4 of the Partition Act, it has to be shown that said stranger purchaser made initiation of proceedings or claimed partition at whatever stage including the stage of execution of the decree of partition. It was further held by the Apex Court that a mere assertion of a claim to a share without demanding separation and possession (by the outsider) is not enough to give other co-shares a right of pre-emption. In the case in hand admittedly defendant No.5 being stranger purchaser did not claim any partition. As such, Section 4 of Partition Act had no application in the facts and circumstances of this case. It is true that the stranger purchaser (defendant No.5) was put into possession of his vendor's (defendant No.1) flat since her purchase in 1990, and other co-sharers of said dwelling house including the plaintiffs had a right to resist said possession under Section 44 of the Transfer of Property Act, 1882. But that does not mean other co-sharers can exercise their right of pre-emption under Section 4 of the Property Act when the precondition of application of said right as mentioned in said Section, as discussed above, was absent.
It is true that during trial defendant No.5 (strange purchaser) took a plea that the property purchased by her was not properly valued and on that plea learned Lower Courts enhanced the valuation of the property but that does not mean that she 12 gave consent for passing order of pre-emption under Section 4 of the Partition Act or that on that score she is estopped to challenge the order of pre-emption.
In view of the above discussion the appeal being Second Appeal 226 of 1999 filed by defendant No.5 is allowed on contest but without cost. Other appeals filed by other parties were not pressed during argument and those stand dismissed.
The impugned judgment and decree of learned Lower Appellate Court so far as it related to allowing pre-emption under Section 4 of the Partition Act is hereby set aside.
Send down Lower Court Record along with a copy of this judgment expeditiously.
Urgent photostat certified copies of this judgment be supplied to learned counsels of the parties, if applied for.
(Tarun Kumar Gupta, J.)