Krishnadhan Chatterjee v. Ajit Kumar Mitra — 1976 DIGILAW 309 (CAL)

JUDGMENT 1. This appeal by the plaintiff is directed against the concurrent decision of the courts below and arises out of a final decree in a suit for partition. 2. Facts which are no longer in dispute may briefly be stated: The plaintiff who is a stranger purchaser purchased six annas interest by a Kobala dated 15.2.76 and thereafter sued for partition of share in the said suit property. Defendant No. 2 who is also a stranger purchaser of two annas share in the aforesaid Bhiti, tank and Bagan properties was made a party defendant in the suit. The property originally belonged to the predecessor of defendant No. 1 who contested the suit for partition inter alia, asserting his right to pre-empt the portions .purchased by the plaintiff and defendant No. 2 under section 4 of the Partition Act. The suit was decreed in the preliminary form on June 1, 1960, by the learned Munsiff and the Court gave defendant No. 1 the liberty to purchase the shares of the plaintiff and defendant No. 2 under sec. 4 of the Partition Act. On September 26, 1962, defendant No. 1 filed two petitions, one for making the decree final, inter alia, invoking his right under sec. 4 of the Partition Act and expressed his intention to purchase, the shares of plaintiff and defendant No. 2 and another for bringing of record the heirs of deceased respondent No. 2 who died in the meantime, The substitution having been effected the Court directed appointment of a Pleader Commissioner on November 19, 1964 directing the Pleader Commissioner for making partition in terms of the preliminary decree passed in the suit and for valuation of the property that the defendant No.1 intended to purchase under sec. 4 of the Partition Act. The Commissioner submitted his report on November 29, 1966 to which the plaintiff filed an objection. The objection against the Commissioner's report was heard on February 22, 1967 on which date the Court overruled the objection and accepted the report and map of the Pleader Commissioner, made the preliminary decree final with the Commissioner's report and map being made part of it. On March 3, 1967, the defendant prayed for permission to deposit a sum of Rs. 1,415,63 and the challan for the amount was passed. 3. On March 3, 1967, the defendant prayed for permission to deposit a sum of Rs. 1,415,63 and the challan for the amount was passed. 3. Against this decision of the learned Munsiff accepting the Commissioner's report and making the decree final the plaintiff preferred an appeal to the learned District Judge, Hooghly, who dismissed the appeal on the two-fold grounds that the appeal was incompetent and that the valuation of the Commissioner was rightly accepted by the learned Munsiff. Accordingly, the learned District Judge dismissed the appeal and it is against this decision that the plaintiff preferred the Second Appeal to this Court. 4. Mr. Tarun Chatterjee, learned Advocate appearing for the appellant has assailed the decision of the learned Judge on three grounds. In the first place it was contended that the learned Judge was in error in holding that the appeal was incompetent as no certified copy of the decree was filed. Mr. Chatterjee contends that an order for sale under sec. 4 of the Partition Act is deemed to be a decree within the meaning of Section 2 of the Code of Civil Procedure by virtue of the provisions of Section 8 of the Partition Act and an appeal against the said order need not be accompanied by the certified copy of a decree in terms of Order 41, Rule 1 of the C.P. Code. In the second place, Mr. Chatterjee contends that there being no direction for sale of plaintiff's share in accordance with the provisions of Section 4 of the Partition Act the learned Trial Court was incompetent to refer the matter to the Commissioner for ascertaining the valuation of plaintiff's share or for accepting the same. Form of the decree passed in the suit was also challenged by Mr. Chatterjee. Lastly, Mr. Chatterjee contended that the valuation arrived at by the Courts below was clearly erroneous and against the weight of evidence on record and as such should be set aside by this Court. 5. Mr. Haridas Ghose, learned Advocate appearing for the respondent Nos. 1 and 2 upheld the order of the Courts below both on the ground of incompetency of appeal before the learned District Judge and also as to the form of the decree passed in this case. Mr. 5. Mr. Haridas Ghose, learned Advocate appearing for the respondent Nos. 1 and 2 upheld the order of the Courts below both on the ground of incompetency of appeal before the learned District Judge and also as to the form of the decree passed in this case. Mr. Ghose further contended that the finding of the Court of Appeal below on the question of valuation being a question of fact could not be interferred with by this Court in Second Appeal. 6. Before I take the first objection of Mr. Chatterjee it will be useful to refer to certain dates. The decision of the learned Munsiff making the preliminary decree final was passed on February 22, 1967. On March 23, 1967, the plaintiff filed the appeal before the District Judge, Hooghly and on April 7, 1967, the decree was sealed and signed by the learned Munsiff. On April 27, 1967, the appeal was admitted by the learned lower appellate court on the representation that the decree had not till then been drawn up. The learned Judge pointed out in his order dated April 27, 1967 that the appeal arises out of an order passed under sec. 4 of the Partition Act and as the decree had not been drawn up then the appeal was directed to be admitted. The learned Judge pointed out that even though the decree was drawn up on 7.4.67 and the certified copy was made ready it was represented to the Court on 27.4.67 that the decree had not been drawn up yet. The learned Judge thought that the certified copy of the decree should have been filed even at the subsequent stage of the appeal after obtaining time from the Court for the purpose. It appears from the Order Sheet of the Appellate Court that on April 4, 1967, the learned Judge recorded an order on the prayer of the appellant for dispensing with the filing of the certified copy of the decree on the ground that the decree was not drawn up in the Court below and the information slip was also annexed in support of the petition and the matter was deferred till April 27, 1967 when the appeal was admitted. It is true that the plaintiff appellant look the certified copy of the decree before the appeal was admitted but it was not pointed out to the Court on 27.4.67 that the decree had not been drawn. Mr. Chatterjee appearing for the appellant relied on the provisions of the Partition Act and certain decisions of this Court contending that an order passed under sec. 4 of the Partition Act directing sale of a share shall be deemed to be a decree within the meaning of Section 2 of the C.P.C. in accordance with the provisions of Section 8 of the Partition Act. This deeming provision according to Mr. Chatterjee clothes the order passed under sec. 4 with the colour of a decree and no formal decree is required for preferring an appeal to the appellate court. In support Mr. Chatterjee referred to the provisions of Section 47 and of Sec. 144 of the C.P.C. which also deemed to be decrees within the meaning of sec. 2 of the Code. By virtue of the definition of a decree in sec. 2 (2) of the C.P.C. the determination of any question within Sec. 47 or of Section 144 of the Code shall be deemed to be a decree. Mr. Chatterjee, accordingly contended that an order' under sec. 4 of the Partition Act is at par with orders made under sec. 47 and sec. 144 of the Code of Civil Procedure as also sec. 158 (3) of the Bengal Tenancy Act, and it is not necessary that appeals against such orders should be accompanied by a copy of the decree. In support Mr. Chatterjee relied upon the case of (1) Ganga Dutt Murarka v. Bibhabati Debi (60 CWN page 871), (2) Devendra Nath Sinha v. Narendra Nath Sinha (30 CWN page 479) and (3) Kamala Dasi v. Tarapada Mukerji (15 CLJ 498). In the last cited case of Kamala Dasi the question arose for the decision of a Division Bench of this Court whether an appeal against an order passed under sec. 47 of the Code of 1908 was out of time and should be registered. The Division Bench held that in the case of an order quite as much as in the case of a decree, there may be a judgment which gives a statement of the grounds upon which the decree or order is based. 47 of the Code of 1908 was out of time and should be registered. The Division Bench held that in the case of an order quite as much as in the case of a decree, there may be a judgment which gives a statement of the grounds upon which the decree or order is based. Hence a Memorandum of Appeal preferred against such a decree or order should be accompanied by a copy of the judgment as also by a copy of the decree or order as the case may be. In cases of execution proceedings, however, although there is a judgment, an order, that is the formal expression of the decision, is not frequently drawn up. In such cases, the concluding portion of the judgment which embodies the order, may be treated as the order against which the appeal is preferred and time would run from the date of such order. In the case of (2) Debendra Nath Sinha the question arose for decision of another Division Bench of this Court was whether time for filing appeal under Schedule III, clause 4, of the Bengal Tenancy Act in case of an order passed under sec. 153 (3) of the Bengal Tenancy Act; 1885 should run from the date of such order and whether it was necessary to file formal decree following such orders along with the Memorandum of Appeal. Sec. 158 (3) of the Bengal Tenancy Act, inter alia, provides that the order on any application made under that section shall have the effect of and be subject to, the like appeal as a decree. The Division Bench held that the plain meaning of the Section was that an order passed under sec. 158 (3) should be regarded as a decree under Schedule III, Clause 4 and time should run from the date of the order when it was pointed to their Lordships that in such cases the courts below usually drew up formal decrees in order to show the result of the litigation, their Lordships observed as follows: "But I am unable to hold that such decrees must be filed along with the Memorandum of Appeal and that the time for presentation of appeals ought to be calculated from the dates of such decrees. “The case in (1) Ganga Dutt v. Bibhabati, arose out of an order passed under sec. “The case in (1) Ganga Dutt v. Bibhabati, arose out of an order passed under sec. 4 of the Partition Act and a Division Bench of this Court vested with the jurisdiction to hear miscellaneous appeals arising out of orders was faced with a challenge that an order for sale passed under sec. 4 of the Partition Act which is deemed to be a decree within the meaning of Sec. 2 (2) of the C.P.C. is really an appeal from decree and not an appeal from an order and as such the Division Bench had no jurisdiction to hear such appeal. The Division Bench held that an order made under sec. 4 of the Partition Act which is deemed to be a decree within the meaning of the C.P.C. is on par with orders under Sections 47 and 144 of the C.P.C. and consequently the appeals therefrom may be classified in the same way as appeals from orders under sec. 47 and sec. 144 of the Code. Equally reasonably appeals from orders under section 4 of the Partition Act may be classed as appeals from original decrees. The Division Bench further held that it was impossible to say that it was wrong to classify them as appeals from orders. The question whether the appellant had to put in the copy of the decree of such appeal was not, however, the subject-matter in issue in any of these decisions but it is obvious that by reasons of the deeming provision of Section 8 an order under Sec. 4 of the Partition Act is to be treated as, a decree and no formal expression of the Court’s decision need be drawn up in such cases or if drawn up should necessarily accompany the copy of the order passed under sec. 4 against, the appeal filed in the superior court. That being the position, the learned District Judge, in my opinion, was in error in treating the appeal as incompetent an the authority of Order 41, Rule 1 of the Code. 7. Mr. Ghose for the respondent sought to distinguish the decision of the learned lower Appellant Court on the footing that the appeal was not against any order passed under sec. 7. Mr. Ghose for the respondent sought to distinguish the decision of the learned lower Appellant Court on the footing that the appeal was not against any order passed under sec. 4 of the Partition Act but an appeal against the final decree in a partition suit and as such the learned Appellate Court was perfectly justified in throwing out the appeal as incompetent in the absence of the decree. According to Mr. Ghose the order passed under sec. 4 has merged into the final decree which is really under appeal in this case and in support relied an a Single Bench decision of the Patna High Court in the case of (4) Kalipada v. Tagar Bala, AIR 1969 Patna 270. In that case a preliminary decree was passed in a partition suit and the appeal was directed against the, decree and the learned Judge of the Patna High Court held that whatever was done prior to the passing of the preliminary decree has merged into the decree which was then under appeal and such questions whether sec. 4 was applicable or not to the facts of the case of part in the preliminary decree and can be agitated in the Second Appeal. Another decision on which Mr. Ghose relied is the case of (5) Nitish Chandra v. Promode Kumar (AIR 1953 Calcutta page 18). That decision arose out of an order rejecting an application under sec. 3 of the Partition Act after an order for sale was made under sec. 4 of the Partition Act. That order was passed during the proceeding of a final decree in a Partition suit and in the context of Section 3 of the Partition Act. The contention of Mr. Ghose in the circumstances in my view cannot be accepted and the appeal therefore must be held to be competent before the learned District Judge. 8. The next contention of Mr. Chatterjee was that there was no order directing sale of the share in accordance with the provisions of sec. 4 by the Court and as such the whole procedure adopted was irregular. Section 4 contemplates three conditions before the Court can take action under it. The first was that there must be a dwelling house belonging to an undivided family. Chatterjee was that there was no order directing sale of the share in accordance with the provisions of sec. 4 by the Court and as such the whole procedure adopted was irregular. Section 4 contemplates three conditions before the Court can take action under it. The first was that there must be a dwelling house belonging to an undivided family. The second was that the share thereof should have been transferred to a person who is not a member of such a family and the third is that the transferee should sue for partition. It is no longer disputed before me that those three basic conditions contemplated under sec. 4 of the partition Act are present in the instant case. Calling for the operation of section 4 whether a stranger transferor has sued for partition in respect of an undivided family dwelling house on the basis of his purchase of a share therein section 4 comes into play only after the Court has found that the transferee was entitled to partition. This view was taken by a Division Bench in the case of (6) Niranka Sashi Roy v. Swarganath Banerjee (AIR 1926 Cal page 95). In fact that decision goes even further, and lays down that no order can be passed under section 4 of the Partition Act before the Court has fund that such a transferee has succeeded in establishing his claim for partition of undivided family dwelling house. It is only where the three aforesaid conditions are fulfilled any. share-holder of the family is entitled to buy share of the stranger transferee provided he gives an undertaking to buy a share of the transferee and upon such undertaking being given the court may make a valuation of such share and direct sale of the same to the pre-empting shareholder., It is clear, therefore, that the preempting share holder must give an undertaking to, the court to buy the share of the stranger transferee at a, valuation to be made by the court and such an undertaking, it has been pointed out in several cases, must be an unconditional undertaking to buy up a share or at any rate a substantial compliance with the provisions of section 4. Reference may in this connection be made to the case of (7) Krishna Kar v. Kanhu Choran Kar, AIR 1962 Orissa 85 and (8) Govindji Dosa v. Kanji Mavji, (AIR 1952 Kutch 14). In the latter cited decision it was further 'pointed out that it is one of the prime condition in an application under section 4 that the applicant should give an unconditional undertaking to buy the share from which he cannot subsequently resile. If we examine the records of the proceedings in the instant case it is obvious that-the learned trial court in the instant case adopted a somewhat queer proceeding in dealing with the application under section 4. The defendant: No. 1 in his defence (paragraph 14) no doubt set up a defence that she was entitled to preempt the share of the plaintiff under section 4 of the Act as the plaintiff was a stranger to the family and a man of different caste. This assertion in the defence of course was followed up in the evidence of the defence, nonetheless the court in the preliminary decree dated 1.6.60 gave defendant no. 1 liberty to purchase shares of the plaintiff and the defendant no. 2 under section 4 of the Partition Act. There was no undertaking on the part of the defendants as contemplated Under section 4 of the Act and as interpreted in (7) AIR 1962 Orissa 85 and (8) AIR 1952 Kutch 14. Assuming that the assertion made by the defendant in paragraph 14 of his written statement is sufficient compliance with the provision of section 4, the court clearly failed to act in terms of the section or to direct the sale of the share, but merely gave the defendant liberty to purchase the shares of the plaintiff and defendant no. 2 under section 4 of the partition Act. Mr. Ghose drew my attention to an application filed by the defendant on September 26, 1962 inter alia stating that he has been permitted to preempt 6 annas shares of the plaintiff and 2 annas share of the defendant No.2 in the suit property and he was willing, to purchase the shares of the plaintiff and defendant No.2 and also prayed for ascertaining the valuation of the said share by appointment of a pleader Commissioner. If this application is to be treated as an application under section 4 of the Partition Act, it would be obvious that there was no order of the Court directing sale in terms of section 4 in the instant case. The trial court in making the decree final merely accepted the commissioner's report and made the preliminary decree final. The decree that was actually drawn up would show that there is no direction for sale at a valuation made by the court nor does it contain any direction as to how the transfer was to be effected. This takes us to the form of a decree in a partition suit where one of the shareholders had been permitted to preempt under section 4 of the Partition Act. The question came up for consideration before the Allahabad, High Court in the year 1941 by Dar, J. in the case of (9) Chaudhuri Md. Sulaiman Khan v. Mt. Amirjan (AIR 1941 All 281) where it was pointed out that in such cases ordinarily the purchaser should be asked to deposit in court the purchase money by a time fixed by the court. If the purchaser deposits the said purchase money within the time allowed by the court, a decree should be passed in the suit in favour of the purchaser declaring that all rights of the plaintiff or persons claiming partition in the property in suit had been transferred by a court sale in favour of the defendant on payment of the said sale price and the plaintiff's claim for partition stood dismissed. It was pointed out therein that if necessary the sale certificate may also be issued to the purchaser and in case of default by the preemptor the decree for partition should be made in favour of the plaintiff and the work of allotment should proceed. This decision was followed by a Single Judge of the Nagpur High Court in the case of (10) Sumitra v. Dhannu Bhiwji and the learned Single Judge in that case in allowing the appeal directed the defendants to deposit in the trial court a certain sum on or before a certain date for payment to the plaintiff for the purchase of his 2/3rd share of the plaintiff of the site in suit and the plaintiff's claim for partition and separate possession of that share shall, stand dismissed. There was a further direction that if defendant Nos. 2 and 3 failed to make the deposit by the time fixed their claim under section 4 of the Partition Act would stand dismissed and the plaintiff would be entitled to apply for partition of his 2/3rd share and for separate possession. In this connection reference may be made to Order 20, Rule 14 of the Code of Civil Procedure which provides for a decree in a preemption suit. Order 20 Rule 14 of the Code provides for the requisites of the decree in a preemption suit and the court in dealing with an application under section 4 of the Partition Act where it directs sale of such share whether in the preliminary decree or in the final decree, should, in my view, proceed to follow the directions contained in the provisions of Order 20 Rule 14 (1) with suitable modification, namely to direct sale of the share of the stranger purchaser at a valuation made by the court and direct the preemptor to deposit the purchase money so fixed within a certain date together with such costs as the court may direct and upon such deposit being made, the share of the stranger purchaser shall be taken to have accrued as and from the date of such payment with a direction that the stranger purchaser shall deliver up possession of the property if obtained by him to the preemptor and the stranger purchaser will be given the liberty to withdraw the purchase money upon compliance, If the purchase money is not deposited in terms of the directions contained in the court's order, the application under section 4 shall be rejected with such order as to costs as the court consider it fit and proper. The direction for sale under section 4 is passed at the time either of the preliminary decree or the final decree, the court shall direct that in the event of the preemptor not depositing the purchase money within the time specified, the stranger purchaser will be entitled to have his allotment in terms of the final decree. 9. The direction for sale under section 4 is passed at the time either of the preliminary decree or the final decree, the court shall direct that in the event of the preemptor not depositing the purchase money within the time specified, the stranger purchaser will be entitled to have his allotment in terms of the final decree. 9. Coming now to the question of valuation it is to be pointed out that the courts below have approached the matter from in entirely wrong angle and the Commissioner also consider a sale deed produced by the plaintiff on the ground that the purchaser was compelled to purchase small piece of land under circumstances for which he had to pay an exorbitant rate. This document though produced before the Commissioner was ignored by the learned trial court on the footing that it was not produced before the Commissioner and the learned trial court failed to consider a very important matter before it. The learned appellate court no doubt considered this document and rejected it, but the reasons given by him does not appear to be convincing. The Commissioner mainly relied upon oral testimony of three witnesses who failed to prove this competency as persons competent to speak on matters of valuation. They spoke only about the character of the doba, which, according to them, were shallow and filled with watter hyacinth. The valuation suggested by the three witnesses far the plaintiff was not in any way supported by any document and should as such have been accepted by the learned Commissioner. Two of the witnesses obviously did not reside near the place where the land is situated and in respect of one witness the plaintiff was denied of his right of cross-examination for which no reasons are recorded. The plaintiff appears to have purchased this property in the year 1955 for a sum of Rs. 2800/- and odd and the Commissioner assessed the valuation of this share of the plaintiff at Rs. 1400/-only for which basically he did not give cogent reasons. The Commissioner could have adopted a different test. In the instant case if no suitable document is forthcoming in support of either parties contention, namely cost of filling up of the doba and deducting the adjoining bagan land of plot no. 7505 which was assessed by the Commissioner as Rs. 200/- per cottah. The Commissioner could have adopted a different test. In the instant case if no suitable document is forthcoming in support of either parties contention, namely cost of filling up of the doba and deducting the adjoining bagan land of plot no. 7505 which was assessed by the Commissioner as Rs. 200/- per cottah. In the absence of anything better to go by that would have been a better method for ascertaining the valuation of the doba in the instant case. In any event I find that the valuation made by the Commissioner is on the materials improper and unreasonable and the appeal accordingly must be allowed and the case is sent back to the trial court for a fresh decision of the valuation and for passing a proper decree and direction for sale under section 4 of the Partition Act in the light of the observations made above. 10. The appeal is accordingly allowed. The judgment and decree of the Courts below are set aside and the case is sent back to the trial court for a fresh decision on valuation and for passing a final decree as also a direction for sale under section 4 of the Partition Act in accordance with the direction contained in the judgment. Cost will abide the result. 11. Leave under clause 15 of the Letters Patent is prayed for and is granted.