LAL BABU SAO Vs. IBNULLAH

JUDGEMENT

(1.) The question involved in this case, referred to a Division Bench for hearing, relates to the interpretation of section 4 (1) of the Partition Act, 1893, in the following circumstances. In January, 1970, the petitioners, who had purchased a share in the suit property, which is a dwelling house, filed a suit for partition. A decree was passed in 1975 and on the 15th April, 1976, the defendant no. 1 a co-sharer in the house, filed an application under section 4 (1) of the Partition Act which is in the following terms :

(2.) It is not suggested that the application in the court below was not maintainable on account of late filing. An application under section 4 (1) can be filed at any stage before possession of the portions are given to the parties (see AIR 1973 Patna 142).

(3.) On behalf of the petitioners reliance has been placed on the case of Lal Kejriwal v. Bhawanath, (AIR 1977 Patna 5) decided by a learned Single Judge of this court holding that the relevant date with respect to which the valuation has to be assessed is the date on which the application is filed. The learned counsel for the opposite party said that since this decision needed reconsideration, the learned Single Judge, who earlier heard the present revision application, has referred the matter to Division Bench. He has relied upon the cases of Bhikari Behera v. Dharamananda, (AIR 1963 Orissa 40) and Sumttra v. Dhannu, (AIR 19)2 Nagpur 193). In Lal Kejriwal's case the decision of the Calcutta High Court reported in (1971) 75 Calcutta Weekly Notes page 185 was followed. It is true that no reasons were given in these cases in support of the view taken but on a consideration of the language of the section and the object for which it has been enacted, we are of the view that it was correctly decided that the relevant date with respect to which the market value of the share should be fixed, is the date on which the application under section 4 (1) of the Act is made. It will be observed by reference to the language of section 4 (1) quoted above, that the right of a co-sharer to purchase the share of a transferee is optional. He may choose to get the residential house partitioned by metes and bounds permitting the purchaser co-sharer to take possession of his share, or he may elect to purchase his share, by filing an application. Until such an application is filed, no necessity for determining the market value of the transferred share arises. The assessment of the price being occasioned by and dependant on the filing of the application, the date with respect to which the value has to be fixed, must be held to be the date on which the application is filed. In none of the Orissa or Nagpur cases, relied upon by the opposite party, this question arise for decision. There, one party said that the value should be fixed in accordance with consideration money for which the transfer took place, and the other side asserted that the market value as on the date of institution of the suit should be fixed. They are, therefore, not helpful for the decision of the point, now under consideration.