Manik Lal Dutt v. Pulin Behari Pal — 1950 DIGILAW 72 (CAL)

JUDGMENT :- This appeal is on behalf of the defendants and arises out of a suit for partition of a tank. 2. The plaintiffs case is that there were other lands near about the tank belonging to the parties, there had been a previous partition of those other lands, but the tank was left Ejmali. The plaintiffs claim two-third share and defendant 1 one-third share in the disputed tank. 3. The defence was that the watery portion of the tank could not be partitioned. Some of the other contentions raised in the plaint which are not material for the present appeal were also contested. 4. The learned Munsif held in favour of the plaintiffs and came to the conclusion that it was not possible to possess the tank in two separate portions. The only way of partitioning the tank was by selling it under the provisions of the Partition Act. The Court farther directed that if the parties failed to settle the price of the tank amicably among themselves, a Commissioner would be appointed on the plaintiffs petition for holding a bid amongst the parties after a valuation was fixed by the Court. The tank would then be sold amongst the parties to the suit and the sale proceeds would be divides amongst them according to their respective shares. 5. After the passing of this preliminary decree, the defendants filed a petition under S. 3, Partition Act on 28th September 1915, for leave to purchase the share of the plaintiffs who had asked for the sale of the tank under S. 2, Partition Act. The learned Munsif, by his order dated 30th November 1945, allowed the defendants prayer under S. 3(1), Partition Act. The Commissioner was thereupon directed to ascertain the value of the two-third share belonging to the plaintiffs. 6. The plaintiffs preferred an appeal before the Court of the District Judge and the only question agitated was whether the application under S. 3, Partition Act, as made by the defendants, was maintainable in law and also whether the direction given by the learned Munsif for the sale of the two-third share belonging to the plaintiffs was according to law. The learned District Judge came to the conclusion that the defendants application under S. 3, Partition Act, was not maintainable after the passing of the preliminary decree. The application was accordingly rejected. 7. The learned District Judge came to the conclusion that the defendants application under S. 3, Partition Act, was not maintainable after the passing of the preliminary decree. The application was accordingly rejected. 7. The defendants have preferred the present appeal before this Court and the only question in issue is as to the scope of S. 3, Partition Act, and the point of time when the defendants must make the application under that section. 8. There is prima facie a broad distinction between the provisions contained in S. 2 and S. 3 read with S. 6, Partition Act, forming practically one group and S. 4 of the same Act on the other. Section 4 applies to the case of a dwelling house, a share of which has been transferred to a stranger and there are certain conditions which must be fulfilled before S. 4 cornea into operation. As explained in the casa of Kshirode Chunder v. Saroda Prosad, 12 CLJ 525 : (7 IC 436), the claim most relate to a dwelling house of an undivided family secondly, some share in it must have been transferred to a stranger; and thirdly, that stranger mast have sued for partition. If reference is made to the provisions contained in Ss. 2 and 3 of the Act, it will appear that one of the parties to the dispute may or may not be a stranger to the family. Even if the subject of the dispute is a dwelling house, unless there be a stranger, S. 4 will not be attracted. Section 3 contemplates a request by a party with certain qualifications for the sale of the entire property, in suit. It is significant that this section favours the smaller share-holder at the express of the larger and the fact of a person owning a large share is a disability under the section, since such a person is precluded from offering to buy up the interest of the party owning the smaller share. 9. It has been repeatedly held that the application by a party to attract the provisions contained in S. 4 of the Act may be made at any stage of the proceedings. 9. It has been repeatedly held that the application by a party to attract the provisions contained in S. 4 of the Act may be made at any stage of the proceedings. As explained in the case of Kshirode Chunder v. Saroda Prosad, 12 CLJ 525 : (7 IC 436), the section does not provide that the application contemplate by it should be made before the passing of the preliminary decree on the other had, it is obvious that the application cannot be made till the rights of the parties have been determined by the preliminary decree. The question whether a particular property alleged to be joint really possesses that character must be determined before the preliminary decree is made and all questions involving the title of the parties and their right to any relief within the issues are judicial in character. They must be determined by the Court and such determination is to be made ordinarily by the Court and incorporated in the preliminary decree before any partition can be male or directed. An application under S. 4 cannot therefore, be properly made before it has been declared by the preliminary decree that the plaintiff who is not a member of the family has acquired a valid title to a share thereof and is entitled to claim partition. This view has been accepted by this Court in the cage of Hiramoni v. Radha Churn, 5 CWN 123, and also by other Courts, Kadir v. Abdul Rahiman, 24 Mad 639; Abdus Samad v. Abdul Razzak, 21 All 409 and Bai Hirakore v. Trikamdas, 32 Bom 108 : (10 Bom LR 23). 10. An application under S. 2 of the Act can also be made after the passing of the preliminary decree. A Division Bench of this Court had held to the effect in the case of Hiramoni v. Radha Churn, 5 CWN 123. It was held that the passing of a preliminary decree would not bar an application being made under S. 2 of the Act. 11. A Division Bench of this Court had held to the effect in the case of Hiramoni v. Radha Churn, 5 CWN 123. It was held that the passing of a preliminary decree would not bar an application being made under S. 2 of the Act. 11. Section 3 of the Act, in so far as it is relevant for the present appeal, is in the following terms : "If in any case, in which the Court is requested under the last forgoing section to direct a sale, any other share-holder applies tat leave to buy at a valuation the abate or shares of the party or parties asking for sale, the Court shall order a valuation of the share or shares in each manner as it may think fit and offer to sale the same to such share-holder at the price so ascertained and make ail necessary and proper directions in that behalf." 12. The foundation for attracting the provisions contained in S. 3, therefore, is the earlier application under S. 2 of the Act. As already pointed out, an application under S. 2 of the Act may be preferred after the passing of the preliminary decree. Its is incontestable accordingly that the procedure laid down under S. 3 may be initiated after an application is made under S. 2 of the Act. The passing of a preliminary decree will not be a bar to S. 3 being attracted. 13. Mr. Sarkar, appearing on behalf of the respondents, however, points out that even if this principle be accepted, the election by the defendant afforded under S. 3 of the Act must be exercised immediately after an application under S. 2 of the Act is made and before the order for sale. It is contended that as the plaintiffs had, before the passing of the preliminary decree, suggested the sale of the entire property, the tank, and on such suggestion the Court had passed an order for the sale of the property, it was not competent for the defendants to make an application under S. 3 of the Act after the preliminary decree had been passed. There is no direct authority of this Court on this point. There is no direct authority of this Court on this point. Reference may, however, be made to the case of Subbamma v. Veerayya, 61 MLJ 552 : (AIR (19) 1932 Mad 15), where the Madras High Court observed that as this section favoured the smaller share-holder at the expense of the larger and as under S. 3 of the Act, the plaintiff, although the owner of the larger share, is not entitled to get the property, the Court, should, wherever possible, strive to avoid this result. I do not Bee any expression used in S. 3, justifying the interpretation put by the Madras High Court on this section. It is not for the Court to enter into a discussion as to the reasonableness or otherwise of a clear and direct provision made, by which one particular party is given an advantage over the other. As indicated in the different cases, while interpreting S. 4 of the Act, the provisions of the Partition Act are to, be liberally interpreted so as to apply those provisions to case which come within the purview of those provisions. There is no reason why a similar interpretation should not be pat on the provisions contained in S. 3 of the Act. I do not see any reason why before the sale actually take a place, it will not be open to the defendant to exercise the option which is given to him under S. 3 of the Act. 14. In the case now before ma, the plaintiffs had suggested that as they were not in a position to use beneficially the water of the tank, they would rather have the entire tank sold and such a direction was given. If after the expression of such a decree by the plaintiffs, and the preliminary decree is parsed by the Court, the defendant make an application under S. 3(1) of the Act, it is not only competent for the Court bat the section makes it incumbent on the Court to issue the necessary orders, provided the conditions mentioned in that section are satisfied. 15. Reference may in this connection be made to a decision of this Court in the case of Atual Chandra. 15. Reference may in this connection be made to a decision of this Court in the case of Atual Chandra. v. Bhusan Chandra, 44 CLJ 47 : (AIR : (13) 1926 Cal 1190), where it was pointed oat that S. 2 provides that whenever it appears to the Court that a division cannot reasonably or conveniently be made, the Court if it thinks fit, on the request of any such shareholder, provided such share-holder is the owner of one moiety or upwards share, may direct the each of the property. If such a request is made under S. 2, any other co-sharer may apply for leave to buy at a valuation the share of the party asking for sale. There is no restrictive clause in S. 3 limiting the point of time when this application must be made. 16. The difficulty of accepting the contention raised on behalf of the plaintiffs may be farther explained if we take an extreme case. The plaintiff in a particular case may contest the title of the defendants or some of them. Until the question of title is decided in the preliminary decree, there can be no question of the defendant exercising the opportunity given to him under S. 3 of the Act in spite of the fact that in the plaint the plaintiff has suggested the sale of the entire property as it was incapable of being used in separate shares by the parties. 17. This appeal is accordingly allowed the judgment and decree passed by the lower appellate Court are set aside and the direction given by the learned Munsif by his order dated 30th November 1945, is restored. 18. Each party, in the circumstances of this case, will bear the coats of this Court. 19. Leave to appeal under cl. 15, Letters Patent is granted. Appeal allowed.