Krishna Chandra v. Kaneez Fatima — 1982 DIGILAW 56 (ALL)

ORDER : - The plaintiff-revisionists filed a Civil Suit No. 166 of 1961 in the Court of Munsif Havali, Lucknow claiming partition of the house in dispute alleging that they were the owners of 2/3rd share in the said house and the defendants-opposite-parties were owners of the remaining one-third share (therein. A preliminary decree for partition was passed by the trial Court on 1st December, 1964. The plaintiffs applied on 4th March, 1965 for making a final decree for partition. Consequently, a Commissioner was appointed to determine the valuation of the house in dispute. According to the opinion of the Commissioner the valuation of the house was Rs. 10.245/-. Smt. Mehrunnissa filed an application under S.4 of the Partition Act praying that she be permitted to purchase the share of the plaintiffs on payment of the value of their share in the house in suit according to the valuation determined by the Commissioner. Smt. Mehrunnissa had also filed an objection against the report of the Commissioner. The learned Munsif Havali, Lucknow by his order dated 28th October, 1967, disposed of the objections raised against the Commissioners report as well as the application under Section 4 of the Partition Act. The operative part of his order was as follows: - "I accordingly confirm the report of the Commissioner regarding valuation of the property in suit which is supported by data. The property in suit is the entire house and is thus valued at Rs. 10,245/-. In case the contesting defendant wants to purchase the share of the plaintiffs, they shall pay the price of that portion of the house in suit according to the above valuation. In case the contesting defendant is not prepared to purchase the share of the plaintiffs, the share of the plaintiffs shall be separated according to partition scheme subject to the objection against the same having been disposed of. The contesting defendant shall intimate his option within a week, failing which the objections against partition scheme shall be disposed of on 25-11-1967." 2. The opposite-party No. 3 filed a revision against the order dated 28th October, 1967 in this Court being Revision No. 225 of 1967. That revision was dismissed on 9th May, 1973. The operative part of the order was in the following terms: - "The order of the Court below therefore does not suffer from any jurisdictional error. The opposite-party No. 3 filed a revision against the order dated 28th October, 1967 in this Court being Revision No. 225 of 1967. That revision was dismissed on 9th May, 1973. The operative part of the order was in the following terms: - "The order of the Court below therefore does not suffer from any jurisdictional error. The revision has no force and is dismissed. The applicant is given two weeks time to deposit the amount of plaintiffs share, failing which proceedings for partition shall proceed." 3. Srimati Mehrunnissa then filed a review application which was dismissed for default on 11th September 1974. Smt. Mehrunnissa then moved an application in the Court of Munsif Havali, Lucknow in Suit No. 166 of 1961 for extension of time for depositing the money in the said Court. That application was supported by an affidavit wherein the delay in not making the deposit within the period of two weeks was sought to be explained. The learned Munsif dismissed that application on 14th September, 1976. Smt. Mehrunnissa again filed an application on 21st October, 1976, for reviewing and recalling the order dated 14th September, 1976. This application was allowed by the learned Munsif Havali on 23rd December, 1977. Smt. Mehrunnissa then deposited a sum of Rs. 7,345.75/- the value of the share of the plaintiffs in the said house. Aggrieved by the order dated 23rd December, 1977, the plaintiffs filed the instant revision petition. 4. In the application for review filed before the trial Court it was contended on behalf of Smt. Mehrunnissa that she came to know of the order only on 26th September, 1974. Thus there was delay of three days, which she tried to explain in the affidavit. The plaintiff however, contested that application on the ground that the defendant No. 3 had failed to deposit the money within the period allowed by the High Court and that the previous application for extension of time had also been rejected by the trial Court. The trial Court observed that the High Court had decided the revision petition on 9th May, 1973 and had granted two weeks time to the defendant No. 3 to deposit the amount in question. However, the defendant No. 3 had filed a review application before the High Court which was ultimately rejected on 11th September, 1974. The trial Court observed that the High Court had decided the revision petition on 9th May, 1973 and had granted two weeks time to the defendant No. 3 to deposit the amount in question. However, the defendant No. 3 had filed a review application before the High Court which was ultimately rejected on 11th September, 1974. The defendant No. 3 therefore, did not deposit the amount during the pendency of the review application hoping that the order in question might be reviewed in her favour. Her review application was, however, rejected in her absence. Her counsel was also not present. She came to know of the order passed on the review application only on 26th September, 1974 and in the meantime two weeks period calculated from 11th September, 1974, expired on 25th September, 1974 but the defendant No. 3 filed an application on 28th September, 1974 and thus there was a delay of three days. The trial Court having found that the delay had been explained condoned it. In my view the Court below had exercised its discretion properly in condoning the delay in making the deposit of the money in question. 5. The learned counsel for the plaintiffs, however, submitted that the Court below had no jurisdiction to condone the delay and extend the period granted by this Court to make the deposit. The defendant No. 3 with a view to meet this objection had moved an application seeking extension of time and condonation of delay. 6. Section 4 of the Partition Act prevents a transferee of a member of a family who is an outsider from seeking partition of a dwelling house belonging to an undivided family. It provides that where a share of a dwelling house belonging to an undivided family has been transferred to a stranger and such transferee sues for partition, the court shall, if any member of the family being a shareholder shall undertake to buy the share of such transferee, make 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 directions in that behalf. It is not in dispute in the instant case that the plaintiffs are the transferees of a share of a dwelling-house belonging to an undivided family. It is not in dispute in the instant case that the plaintiffs are the transferees of a share of a dwelling-house belonging to an undivided family. The defendant No. 3 has a share in that house which belongs to an undivided family. She, therefore, applied under Section 4 of the Partition Act to buy the share of the plaintiffs. The trial Court had got the valuation of the entire house made. The valuation of the share of the plaintiffs in the said house has thus been determined. The trial Court granted one weeks time to the defendant No. 3 to purchase the share of the plaintiffs. The defendant No. 3, however, disputed the valuation of the house determined by the trial Court and challenged the same in revision in this Court. The revision was dismissed and the defendant No. 3 was given two weeks time to deposit the amount of the plaintiffs share failing which the proceedings for partition were to proceed. As pointed out in Birendra Nath Banerji v. Smt. Snehalata Devi ( AIR 1968 Cal 380 ), the right of pre-emption under S.4 of the Partition Act is a fight given by the statute and it subsists so long as the suit remains pending, in other words so long as the suit has not been concluded or terminated by an effective final decree for partition. The defendant No. 3 was asked to deposit in Court the purchase money within two weeks. She, however, did not deposit the amount within that period because in the meantime she filed an application seeking a review of the order. That review application was ultimately rejected on 11th September, 1974. From that date two weeks period would have expired on 25th September, 1974. She moved an application on 28th September, 1974 for extension of time to deposit the amount. She has in fact subsequently deposited the amount in the Court below. The trial Court has extended the time. No doubt this Court was not at that stage moved to extend the time but on the advice of the learned counsel for the defendant No. 3 the trial Court was approached to extend the time which was ultimately allowed. The defendant No. 3 had also moved this Court also for extension of time. No doubt this Court was not at that stage moved to extend the time but on the advice of the learned counsel for the defendant No. 3 the trial Court was approached to extend the time which was ultimately allowed. The defendant No. 3 had also moved this Court also for extension of time. Keeping in view the facts any circumstances of the case I am of the opinion that the time should have been extended. 7. The object of Section 4 of the Partition Act is that in a dwelling house belonging to an undivided family a stranger should not be permitted to force his way into it by a suit for partition. Section 4 thus affords the benefits of the law of pre-emption and it preserves the joint status and the integrity of joint property. The expression "undivided family" in Section 4 of the Partition Act does not mean an undivided Hindu family but it applies to undivided families of all castes and communities and in order to comply with the condition laid down in the section all that is necessary is that the family should be undivided qua the dwelling house which is the subject-matter of partition and it is not necessary that the family should be undivided with regard to other properties also; see Sultan Begam v. Debi Prasad (1908) ILR 30 All 324). In Mohammad Sulaiman Khan v. Mt. Amir Jan (AIR 1941 All 281), it was held that ordinarily the purchaser should be asked to deposit in Court the purchase money by a time fixed by the Court, the time to be fixed and extended at the discretion of the Court. Section 148 of the Civil P.C. provides that where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion from time to time, enlarge such period, even though the period originally fixed or granted may have expired. Order XX R.14 of the Civil P.C. indicates the contents of a decree in a pre-emption suit. Rule 14, inter alia provides that the Court shall fix a period for the deposit of the purchase money. That being the position, the Court may under Section 148, C.P.C. enlarge the period for depositing the purchase money in the Court. Order XX R.14 of the Civil P.C. indicates the contents of a decree in a pre-emption suit. Rule 14, inter alia provides that the Court shall fix a period for the deposit of the purchase money. That being the position, the Court may under Section 148, C.P.C. enlarge the period for depositing the purchase money in the Court. The final decree for partition had not been passed in the case. In the meantime the defendant No. 3 had filed the application before the trial Court for condonation of delay in making the deposit of purchase money. The question is could the Court below extend the period for making the deposit of purchase money. The submission on behalf of the plaintiffs-revisionists was that as the order of the trial Court allowing one weeks time had merged in the order of this Court, the extension of time could be granted only by this Court and not by the trial Court. The question of merger of an order of the trial Court in the order of the appellate Court came up for consideration before the Supreme Court in Commr. of Income-tax, Bombay v. M/s. Amritlal Bhogi Lal and Co. ( AIR 1958 SC 868 ). In that case it was noticed that an appeal was provided against orders passed by the Income-tax Officer under S.23 (4) or S.26-A either refusing to register the firm or cancelling registration of the firm, but no appeal could be filed by the department against the order granting registration. The scheme of the Act in respect of appeals to the Appellate Assistant Commissioner was that it was only the assessee who was given a right to make an appeal and not the department. The powers of the Appellate Assistant Commissioner, however, wide, have to be exercised in respect of the matters which are specifically made appealable under Sec.30 (1) of the Act. If any order has been deliberately left out from the jurisdiction of the Appellate Assistant Commissioner, it would not be open to the appellate authority to entertain a plea about the correctness, propriety or validity of such an order. The order granting registration can be cancelled by the Income-tax Officer himself either under Rule 6-B or under Section 23 (4). If any order has been deliberately left out from the jurisdiction of the Appellate Assistant Commissioner, it would not be open to the appellate authority to entertain a plea about the correctness, propriety or validity of such an order. The order granting registration can be cancelled by the Income-tax Officer himself either under Rule 6-B or under Section 23 (4). It could be cancelled by the Commissioner in exercise of his revisional power under S.33-B but it could not be cancelled by the Appellate Assistant Commissioner in exercise of his appellate jurisdiction under Section 31 of the Act. Hence it was observed that even after the appeal is decided and in consequence the appellate order was the only order which was valid and enforceable in law, what merged in the appellate order was the Income-tax Officers order under appeal and not his order of registration which was not and could never become the subject-matter of an appeal before the appellate authority. The theory that the order of the tribunal merges in the order of the appellate authority cannot therefore apply to the order of registration passed by the Income-tax Officer. The Supreme Court, therefore, laid down that if an appeal is provided against an order passed by a tribunal, the decision of the appellate authority is the operative decision in law irrespective of whether it confirms, modifies or reverses the decision of the tribunal. This case was relied on by the Supreme Court in the case of State of Madras v. Madurai Mills Co. Ltd. ( AIR 1967 SC 681 ) wherein it was observed that the doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that wherever there are two orders, one by the inferior authority and the other by a superior authority passed in an appeal or revision, there is a fusion or merger of two orders irrespective of the subject-matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute. The application of the doctrine of merger depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction. Applying these principles, can it be said that the order passed by the trial Court had merged in the order passed by this Court. 8. The application of the doctrine of merger depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction. Applying these principles, can it be said that the order passed by the trial Court had merged in the order passed by this Court. 8. The trial Court had in the suit passed a preliminary decree and a Commissioner was appointed to determine the valuation of the house in question. The defendant No. 3 in the meantime made an application under Section 4 of the Partition Act to purchase the share of the plaintiffs in the said house. The Commissioner submitted his report giving valuation of the house as Rs.10,245/-. The defendant No. 3 filed objection against that report of the Commissioner. The trial Court rejected the objection of the defendant and confirmed the report of the Commissioner. The trial Court had also while considering the application under Section 4 of the Partition Act allowed one weeks time to exercise the option to purchase the share of the plaintiffs in the said house. The defendant No.3 filed a revision petition challenging the order of the trial Court whereby the objection of the defendant No.3 had been rejected and the report of the Commissioner had been confirmed. Obviously, the revision was not directed against the order passed by the trial Court on the application under Section 4 of the partition Act. The plaintiffs had also not filed any appeal or revision against the order of the trial Court passed on the application of the defendant No.3 under Section 4 of the Partition Act. This Court rejected the revision petition filed by the defendant No.3. The effect was that the order passed by the trial Court confirming the report of the Commissioner merged in the order of this Court. The order passed on the application under Section 4 of the Partition Act having not been challenged either in appeal or revision could not, therefore be said to have merged in any order of this Court. No doubt this Court while dismissing the revision application of the defendant No.3 had directed that the defendant No.3 may deposit the purchase money within two weeks. The subject-matter of the revisional order was thus quite different. No doubt this Court while dismissing the revision application of the defendant No.3 had directed that the defendant No.3 may deposit the purchase money within two weeks. The subject-matter of the revisional order was thus quite different. As the doctrine of merger depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction, it cannot be said that the original order passed by the trial Court on the application under Section 4 of the Partition Act had merged in the order passed by this Court. The trial Court had, therefore, the jurisdiction to extend the period for making deposit of the purchase money. The trial Court was satisfied that sufficient cause had been shown by the defendant No.3 for not making the deposit earlier. It, therefore, condoned the delay and allowed the defendant No.3 to deposit the amount. The defendant No.3 has accordingly deposited the amount. The discretion exercised by the Court below cannot be said to be arbitrary, capricious or otherwise illegal. The plaintiffs have in my view failed to make out a case warranting interference under Sec.115 of the C.P.C. It cannot be accepted that the Court below has acted illegally or with material irregularity in the exercise of its jurisdiction. 9. There is no merit in the revision. It is accordingly dismissed but in the circumstances without costs. Revision dismissed..