Document Fragment View
Fragment Information
Showing contexts for: partition act in Prahallad Ch. Mohanty And Anr. vs Surendra Nath Mohanty And Ors. on 17 March, 2008Matching Fragments
Whether the prayer of the plaintiff for repurchase of the part of the suit dwelling house from defendant Nos. 12 & 13 was maintainable when the stranger purchasers had not filed any suit for partition to carve out their share?
5. Mr. Ashok Mukharji, learned Counsel for the appellant submitted that the suit of the plaintiff was not maintainable as it was filed beyond the period of limitation prescribed under Article 97 of the Limitation Act, 1963. According to him, the Courts below concurrently held that defendant Nos. 12 & 13 were in possession of the suit dwelling house after their purchase in the year 1977, so when the suit was filed by the plaintiff on 13.7.1987 which was beyond the period of limitation of one year, it was hit under Article 97 of the Limitation Act. On this score he cited the case of Tarak Das Ghosh v. Sunil Kumar Ghosh . He also contended that right of pre-emption under Section 4(1) of the Partition Act can be availed by a coparcener only when the stranger purchaser files suit for partition or takes steps for carving out his share in the joint family dwelling house, but in the present case, neither defendant Nos. 12 & 13 had filed any suit for partition nor they had filed counter claim as defendants to carve out their share and therefore, the claim of pre-emption by the plaintiff was not maintainable. In support of such contention, Mr. Mukherji relied on the case of Babulal v. Habibnoor Khan (dead) by L.RS. and Ors. .
6. Mr. C.R. Nanda, learned Counsel for the respondents on the other hand maintained that the suit of the plaintiff was not barred by limitation. According to him, the suit being one for partition, the limitation provided under Article 97 would not apply. Mr. Nanda also argued that a coparcener can exercise his right of pre-emption under Section 4(1) of the Partition Act, when one of the coparceners files a suit for partition arraying the other coparcener and stranger purchasers as defendants, as in a partition suit the defendants also stand at par with the plaintiff. In support of this contention, he relied on the Cases of Ghantesher Ghosh v. Madan Mohan Ghosh and Ors. ; Dorab Cawasji Warden v. Coomi Sorab Warden ; Alekha Mantri v. Jagabandu Mantri and Ors. AIR 1971 Orissa 127; Bhagirathi Jena and Anr. v. Parsuram Jena and Ors. ; Gulamrasool Sarfuddin Malak and Ors. v. Dulhanbibi and Ors. and Siba Prosad Bhattacharyya and Ors. v. Bibhuti Bhusan Bhattacharjee and Ors. .
From the language of this Section it is clear that the right of a member of the family who is a share holder accrues under the Section as soon as a suit for partition is filed by a stranger to the family and subsists during the pendency of the suit until it is terminated by an effective final decree of partition. Extending the scope, the apex Court in the case of Ghantesher Ghosh (supra) observed that the right of share holder-member of the family continues to subsist even after the final decree proceeding till the final decree is fully executed by an executive Court. In that case, the apex Court further observed that "suing for partition" would not necessarily mean filing of a suit in the first instance by the stranger transferee, but if a transferee seeks to execute any final decree of 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. In Alekha Mantri's case (supra) the alienee of undivided share of a co-owner in a joint family house was arrayed as defendant No. 1 in the suit filed by one of the co-owners of the family for partition and separate possession of his undivided share. The question arose whether an alienee from the co-owner who was already defendant No. 1 could be subjected to proceeding under Section 4 of the Partition Act by the plaintiff. This Court held that Section 4 of the Partition Act would also be applicable where the suit for partition was brought by a member of the undivided family against the stranger transferee and that it is not necessary that the latter should file the suit. This observation was given on the principle that a defendant in a partition suit stands on the same footing as that of plaintiff and can also claim his specific share. In the case of Babulal (supra), the apex Court however, ruled that the ratio noted in Alekha Mantri's case is not good law in view of Ghanteshar Ghosh's case (supra). The observation of the apex Court is extracted hereunder:
(emphasis provided)
8. This observation thus essentially propagates that ratio of Alekha Manti's case will not apply to the cases, where the stranger purchasers does not move for partition of the joint family property against the remaining co-owners either as plaintiff or even as a defendant in the partition suit claiming to be as good as the plaintiff nor even as a successor of the decree holder seeks execution of partition decree.
9. In Gulamrasool Sarfuddin Malak's case the Full Bench of Gujarat High Court ruled that a member of an undivided family can avail the benefit of Section 4 of the Partition Act, even if the suit has been instituted by a member of that undivided family as plaintiff arraying the stranger transferee, as a defendant and even if such stranger transferee does not in terms claim the separation of his share in the property. This Court taking note of the above noted ratio and some previous decisions of this Court in the case of Bhagirathi Jena and Anr. (supra) also ruled that even if a stranger purchaser has not filed a suit for partition to carve out his share and having been arrayed as a defendant in a suit for partition filed by one of the members of the joint family has not specifically asked for carving out his share, yet the plaintiff can avail the right of pre-emption contemplated under Section 4 of the Partition Act. A close reading of the above noted decision leads to an irresistible conclusion that in a suit filed by one of the members of the joint family for partition where the stranger purchaser has been arrayed as defendant, the plaintiff can ask for relief of repurchase of the property from the stranger purchaser. Such inference is legally acceptable as it is in consonance with the benevolent legislative scheme behind enactment of Section 4 of the Partition Act, which is for insulating the domestic peace of members of undivided family occupying a common dwelling house from the encroachment of a stranger transferee of the share of one undivided co-owner as a stranger-outsider to the family may obviously be having different outlook and mode of life than the members of the joint family. In the present case, admittedly the suit for partition was filed by one of the members of the joint family arraying stranger purchasers as defendant Nos. 12 and 13. In such situation, the right of pre-emption noted in Section 4 of the Partition Act was available to the plaintiff in the suit.