PARTHA SARATHI GHOSH v. SULEKHA GHOSH — 1987 DIGILAW 125 (CAL)

SUKUMAR CHAKRAVARTY, J. ( 1 ) THIS is an appeal against the order dated 12th January, 1980 passed by Sri A. K. Das Gupta, the learned Subordinate Judge, 4th Court, Alipore in Title Suit No. 29 of 1970 in the matter of an application under Section 4 of the Partition Act in Misc. Case No. 21 of 1972. ( 2 ) THE facts in brief leading to this appeal are as follows: Plaintiff No. 1 Sulekha Ghosh and plaintiff No. 2 Srilekha Ghosh, the daughters of late Sailendra Math Ghosh filed the aforesaid partition suit being Title Suit No. 29 of 1970 against, their brother defendent No. 1 Partha Sarathi Ghosh impleading their mother Mira Ghosh as pro-forma defendant No. 2 The suit was decreed on 28th February, 1972 in a preliminary form for partition in respect of ?th share of each of the plaintiffs and on defendant No. 1's claim to buy the share of the plaintiffs under Section 4 of the Partition Act, the Trial Court allowed the defendant No. 1's claim to buy the share of plaintiff No, 1 only at the market price to be assessed on the finding that the plaintiff No. 1 was a stranger to the family dwelling house in question because of her marriage and living in the house of her husband when she filed the suit for partition after acquiring interest in her share and rejected the defendant No. 1's claim under Section 4 of the Partition Act so far as it related to the share of plaintiff No. 2 who was unmarried and was a member in the family dwelling house when the partition suit was filed. ( 3 ) THE plaintiff No. 2 Srilekha Ghosh filed one petition under Section 4 of the Partition Act on 30th March, 1972 to buy the share of the plaintiff No. 1, Sulekha Ghosh. Defendant No. 1 filed the objection to such petition on 22nd September, 1972 challenging the claim of the plaintiff No. 2. ( 3 ) THE plaintiff No. 2 Srilekha Ghosh filed one petition under Section 4 of the Partition Act on 30th March, 1972 to buy the share of the plaintiff No. 1, Sulekha Ghosh. Defendant No. 1 filed the objection to such petition on 22nd September, 1972 challenging the claim of the plaintiff No. 2. On 12th March, 1972, defendant No. 1 filed further objection to the plaintiff No. 2's application under Section 4 of the Partition Act contending inter alia that the plaintiff No. 2 had been given in marriage on 12th June, 1976 and that since then she had been residing in her marital home and had ceased to be the member of the family in the family dwelling house-in-question and that the plaintiff No. 2 was, therefore, not entitled to the benefit of Section 4 of the Partition Act in view of the changed events and circumstances. ( 4 ) ON 12th April, 1977, the. defendant No. 1 filed another petition describing the same as the petitioner under Section 4 of the Partition Act and requesting the court to give effect to the direction. already given in the preliminary decree with regard to the defendant No. 1's buying the share of the plaintiff No. 1. ( 5 ) BY the impugned order, the learned Subordinate Judge, disposed of the plaintiff No. 2's petition and defendant No. 1's petition as mentioned above on consideration of the preliminary decree already passed containing the direction upon the defendant No. 1 to buy the share of the plaintiff No. 1 at the market price to be assessed and found that the both the defendant No. 1 and plaintiff No. 2 had the right to buy the share of the plaintiff No. 1 and gave the direction for sale of the share of the plaintiff No. 1 by the Pleader Commissioner to be appointed for the purpose either to the defendant No. 1 or to the plaintiff No. 2 who would offer the highest market price. While passing the impugned order, the learned Subordinate Judge did not appear to have considered the defendant No. 1's petition dated 12th March, 1977 challenging the right of plaintiff No. 2 to buy the share of the plaintiff No. 1 in the changed events and circumstances. ( 6 ) BEING aggrieved, the defendant No. 1 has preferred this appeal against the impugned order. ( 6 ) BEING aggrieved, the defendant No. 1 has preferred this appeal against the impugned order. ( 7 ) MR. Mukherjee appearing for the appellant has attacked the impugned order on two points in his submission. His first point is that in the preliminary decree of the partition suit, the learned Trial Court after deciding the specific issue on the defendant No. 1's claim to buy the share of the plaintiffs under Section 4 of the Partition Act, in presence of the plaintiff No. 2, has given the direction to sell the share of the plaintiff No. 1 alone to the defendant No. 1 at the market price to be assessed and that accordingly plaintiff No, 2's application under Section 4 of the Partition Act to buy the share of the plaintiff No. 1 after the passing of the aforesaid decree can not be entertained by the court. His second and most important point is that the plaintiff No. 2 during the pendency of her petition under Section 4 of the Partition Act, ceased to be the 'member of the family because of her marriage in June 1976, and that accordingly she lost her right to buy the share of the plaintiff No. 1 and that the learned Subordinate Judge committed mistake is not taking into consideration the changed events and circumstances while disposing of the plaintiff No. 2's application under Section 4 of the Partition Act. In support of the submission, Mr. Mukherjee has relied on the decision in AI. R. 1977 Calcutta 207 and (1976) 3 S. C. O. 142. ( 8 ) MR. Banerjee appearing for the respondent while supporting the impugned order, has submitted that a member of the family being a shareholder can file the petition under Section 4 of the Partition Act to buy the share of the stranger shareholder at any stage before the final decree in the partition suit. Mr. ( 8 ) MR. Banerjee appearing for the respondent while supporting the impugned order, has submitted that a member of the family being a shareholder can file the petition under Section 4 of the Partition Act to buy the share of the stranger shareholder at any stage before the final decree in the partition suit. Mr. Banerjee has further submitted that the status of the co-sharer willing to purchase the share of the stranger co-sharer under Section 4 of the Partition Act at the time of the filing of such petition itself will be the guiding factor to determine whether such co-sharer will be entitled to get the relief under Section 4 of the Partition Act and the changed status of the plaintiff No. 2 regarding her membership in the family consequent upon her marriage during the pendency of the petition under Section 4 of the Partition Act, will not debar the plaintiff No. 2 to get the relief which she was entitled to get at the time of her filing such petition. Mr. Banerjee has relied on the decision in A. I. R. 1950 Calcutta 111. ( 9 ) SECTION 4 (1) of the Partition Act provides as follows :"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 shareholder 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 directions in that behalf. " ( 10 ) ON a consideration of the language in Section 4 of the Partition Act, its requirements and its scope and object, it is manifest that any application under Section 4 of the Partition Act should be filed before the final decree is passed. The decision in A. I. R. 1980 Madras 235 (Abdul Sattar vs. A. Nawab) is relied on. So viewed, the petition of plaintiff No. 2 under Section 4 of the Partition Act after the preliminary decree in the partition suit was entertainable and it has rightly been entertained for consideration. The decision in A. I. R. 1980 Madras 235 (Abdul Sattar vs. A. Nawab) is relied on. So viewed, the petition of plaintiff No. 2 under Section 4 of the Partition Act after the preliminary decree in the partition suit was entertainable and it has rightly been entertained for consideration. It is true that the defendant No. 1's claim during the trial of the partition suit to buy the share of the plaintiff No. 1 was disposed of by giving an order and direction in the preliminary decree when plaintiff No. 2 did not file any such petition, but such No. 1 shall be subject to such order as is passed by the same court on plaintiff No. 2's application under Section 4 of the Partition Act. In the instant case if the impugned order stands otherwise, the preliminary decree shall be subject to the same. We, therefore, do not find any substance in the first point as raised by Mr. Mukherjee in his submission. ( 11 ) UNDER Section 4 of the Partition Act, a member of the family being a shareholder can buy the share of the stranger shareholder in the family dwelling house. In the case of Surjit Lal Chhabda vs. Commissioner of Income Tax reported in (1976) 3 S. C. C. 142, it has been held that "the daughter, on marriage, ceases to be a member of her father's family and becomes a member of her husband's family. " In the instant case it is an undisputed fact that the plaintiff No. 2 Srilekha who as a member of the family being a shareholder filed the petition under Section 4 of the Partition Act to buy the share of the plaintiff No. 1 ceased to be the member of the family consequent upon her marriage in June, 1976 during the pendency of her petition under Section 4 of the Partition Act. ( 12 ) IN the case of Boto Krishna Chose vs. Akshoy Kr. Ghose and others reported in A. I. R. 1950 Calcutta 111, the competence or qualification of the person to apply under Section 4 of the Partition Act has been discussed and it has been held by a Division Bench of this Court that the qualification of the applicant has to be judged with reference to his position at the date of application. It has been further held that if the applicant shows that he is a co-sharer member of the family at the date of his application, he establishes his competence to make the application. The aforesaid case has, however, not specifically decided the question whether the applicant under Section 4 of the Partition Act who loses his status either as a member of the family or as a shareholder during the pendency of the said application, would still get the relief under Section 4 of the Partition Act. ( 13 ) IN the case of Safura Bibi vs. Ram Prasad Shaw and Others reported in A. I. R. 1977 Calcutta 207, we, however, find the answer of such question so far as it relates to the status of the shareholder. In the aforesaid decision the Division Bench of this Court presided over by S. K. Datta and H. N. Sen, JJ. while keeping in view the decision in A. I. R. 1980 Calcutta 111 have held as follows :"thus the shareholder who applies for pre-emption under Section 4 of the Partition Act must continue and retain his status as such shareholder when the order of sale to him is directed by the Court and sale is completed accordingly. In view of this position if there is any change in the status of such shareholder by any intervening act whereby the interest of such shareholder in the property is lost, subsequent acquisition of such interest by him again will not make the same shareholder re-acquire his status as was his at the time when he made the application under Section 4. Accordingly, it appears that, if there is such ceasation of the interest of the shareholder in the property within the said period leading to a change of the status of the shareholder by reason of any intervening factor, such shareholder will not retain the same capacity he had by reason of such transfer and, as such, will not be entitled to the benefit under Section 4 (1) of the Act. This aspect of the question was not required to be considered and accordingly not considered in the decision cited above. This aspect of the question was not required to be considered and accordingly not considered in the decision cited above. " ( 14 ) IN view of what is discussed above, we are of the view that the principle of law as enunciated in the decision in A. I. R. 1977 Calcutta 207 with reference to the question of the application under Section 4 of the Partition Act as a shareholder will be applicable also to the case involving the question with reference to the qualification of the applicant as a member of the family. We, therefore, find sufficient substance in the submission of Mr. Mukherjee on the second point and accordingly accept the same as legally sustainable. We are not, however, unmindful of the fact that the marriage of the plaintiff No. 2 in June, 1976 changing her status as a member of the family during the long pendency of her application under Section 4 of the Partition Act filed by her while she was a member of the family being unmarried, has disentitled her to obtain and exercise that right under Section 4 of the Partition Act and that the early disposal of plaintiff No. 2's 'application under Section 4 of the Partition Act before her marriage in 1976 would have perhaps ensured to the benefit of the plaintiff No. 2 in the matter of the said application under Section 4 of the Partition Act. ( 15 ) BE that as it may, in view of what has been stated and discussed above, we find the merit in the appeal. ( 16 ) IN the result, the appeal is allowed and the impugned order of the learned Subordinate Judge so far as it relates to the plaintiff No. 2's application under Section 4 of the Partition Act is set aside and the 'said application in the Misc. Case No. 21 of 1972 is rejected. We make no order as to costs in the appeal as well as in the matter of that application. Gobinda Chandra Chatterjee, J. I agree. Appeal allowed