Document Fragment View

Matching Fragments

6. Section 58 of the Evidence Act lays down that the facts admitted need not be proved. In effect the prayer was as the parties were in agreement of their respective shares, preliminary decree be passed accordingly and partition by metes and bounds be effected and final decree passed accordingly. This application was heard and disposed of by order dated 26.4.1994 by the trial court wherein the shares were decided accordingly i.e. the plaintiffs' 1/7th share and defendant No. 6's 6/7th share of the schedule property. So far as the claim of pre-emption with reference to Section 44 of the Transfer of Property Act and Section 4 of the Partition Act are concerned, the same was dismissed on the ground that the suit had been instituted by a co-sharer for partition and not by the outsider purchasers. This was with reference to Section 4 of the Partition Act which would operate only when partition suit is instituted by transferee of share in a dwelling house.

7. The plaintiffs being aggrieved by the said order filed an appeal which was heard and dismissed by the 2nd Additional District Judge by his judgment and order dated 13.3.1996. The plaintiffs then preferred second appeal being Second Appeal No. 157 of 1996 in this court. The same was disposed of by judgment and order dated 10.7.1998. This court held that Section 4 of the Partition Act is complementary to second part of Section 44 of the Transfer of Property Act. This court further held that a right of pre-emption under Section 44 of the Transfer of Property Act read with Section 4 of the Partition Act has to be considered and decided even in a suit for partition filed by a co-sharer or other co-sharer and stranger Purchaser and reliance was placed on judgment of Allahabad High Court in the case of Prayag Narain v. Vishwanath Kaushik and Ors. AIR 1983 All. 213. Having thus held the impugned judgment and decree was set side and the trial court was directed Page 674 to adjudicate the Plaintiff's relief for pre-emption. However, preliminary decree was not disturbed. Neither party challenged the . aforesaid decision of this court which thus attained finality inter party. The effect of the said decision of this court in second appeal was that the claim of the plaintiffs with regard to pre-emption became maintainable in terms of statutory provision as aforesaid as interpreted by this court. In the meantime it appears that pursuant to the order of the trial court and before the order of this court in Second Appeal the dwelling house was partitioned. Defendant No. 6 got, possession of his share. It is not in dispute that consequent thereto he defendant No. 6) demolished the building appertaining to his share and, therefore no dwelling house was left to his share but only landed property on which the dwelling house was earlier there. Plaintiffs did not resist this action.

9. For consideration of the issue involved in the present case it is necessary to quote Section 44 of the Transfer of Property Act and Section 4 of the Partition Act.

44. Transfer by one co-owner.-Where one of two or mere 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 transferors 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.

We are in agreement with this opinion. There is no law which provides that co-sharers 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, 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 a co sharer to purchase the share sold to an outsider. Thus before the right of pre-emption, under section 4, is exercised the conditions laid down the rein have to be complied with. As seen above, 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 transfer/outsider does nothing after purchasing the share. In other words, Section 4 is not giving a right to a co-sharer to pre-empt and purchase the share sold to an outsider anytime he/she wants. Thus, 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-sharer, 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 proceedings or the making of a claim to a 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. There is a difference between a mere assertion that he has Page 677 a share and a claiming for possession of that share. So long as the stranger-purchaser does not seek actual division and possession either in the suit or in execution I proceedings, it cannot be said that he has suit for partition. The interpretation given by Calcutta, Patna, Nagpur and Orissa High Courts would result in nullifying the express provision of Section 4, which only gives a right when the transferee sues for partition. If that interpretation were to be accepted then in all cases, where there has been a sale of a share to an outsider, a co-sharer could simply file a suit for partition and then claim a right to purchase over that share. Thus even though the outsider may have at no stage, asked for partition and for the delivery of the share to him he would be forced to sell his share. It would give to a co-sharer a right to pre-empt and purchase whenever he/she so desired by the simple expedient of filing a suit for partition. This was not the intent or purpose of Section 4. Thus the view taken by Calcutta Patna, Nagpur and Orissa High Courts in the aforementioned cases, cannot be said to be good law.