Decided on December 01,1976

RAM PRASAD SAW Respondents

Referred Judgements :-


Cited Judgements :-



- (1.)This Rule was obtained against Order No.170, dated 9th July, 1975 in a Partition Suit whereby the application of the plaintiff was allowed. The effect of the order is that the defendant No.2's application under section 4 of the Partition Act which was earlier allowed stood disallowed in view of some subsequent events. The facts, in short, are as follows:- On 5th March, 1953 the Partition Suit was filed by the plaintiff who, admittedly, acquired a share of the dwelling house of the defendants. In course of the proceedings, the defendant No.2 filed an application on 30.4.57 under Section 4 of the Partition Act, 1893 for the purchase of the share of the plaintiff who, was admittedly, a stranger purchaser. This application was allowed on 17.5.57 when the preliminary decree was also passed. The preliminary decree contained direction on the Commissioner to make a valuation of the plaintiff's share which was determined at two annas six gordas two karas and two krantis and the court also recorded further directions to the effect that if the amount be paid within 30 days by the defendant No.2, the plaintiff interest would vest in her and the plaintiff would execute a kobala in respect of the said share in her favour and the plaintiff's suit for partition would stand dismissed. It appears that on 18.11.60 the defendant No.2 transferred her share in favour of her nephew, Sheikh Sajahan by a registered Heba-bil-awaj and, subsequently, Sheikh Sajahan again transferred the said share to the defendant No.2 by a registered Heba-bil-awaj on 22.4.65. The plaintiff in the context of the aforesaid facts, made an application for effecting a final decree for partition by metes and bounds and also for a direction that no further steps should be taken for determination of the value of the plaintiff's share as directed earlier by the court on the defendant No.2's application under Section 4. This application was allowed. The learned Judge held that there was no necessary for proceedings further regarding the determination of the valuation of the plaintiff's share as the defendant No.2 had lost her right of pre-emption by virtue of the transfer dated 18.11.60. The present Rule is against this order.
(2.)Mr. S. P. Roychowdhury, learned Advocate appearing for defendant No.2 who is the petitioner before us, contended that it was not necessary for the court to look into the intervening facts because the defendant No.2 subsequently acquired the interests transferred by her earlier in full. It was further contended by Mr. Roychowdhury that as soon as the defendant No.2 re-acquired her share, her right of pre-emption revived and the court should proceed, as directed already, on basis of her application under Section 4. Mr. Roychowdhury also contended that provisions of the Partition Act should be construed liberally so as not to destroy the integrity of the family dwelling house, as was held by several decisions cited by him. In any event, Mr. Roychowdhury contended that his client still has the right to file an application under Section 4 of the Partition Act and to prevent multiplicity of the court proceedings, the court should not relegate the defendant No.2 to further proceedings under Section 4 of the Act. These contentions are disputed by Mr. Biswas, learned Advocate appearing for the substituted plaintiffs.
(3.)Strong reliance has been placed on the decision in the case of (1) Bata Krishna Ghosh v. Akshoy Kumar Ghosh, reported in 54 CWN 660 where it was held that there is nothing in Section 4 of the Partition Act which disqualifies a member who, having previously alienated its share, has re-acquired it and is owning it at the time he makes his claim under Section 4. The qualification of the applicant, it was held, is to be judged with reference to his position at the date of the application. In the case before us, it would appear that the transfer which has resulted in the impugned order was made after the application under Section 4 of the Partition Act was filed. Section 4 of the Partition Act is on the following terms:
"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 share holder 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 direction in that behalf."


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