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2000 DIGILAW 686 (PAT)

Bimla Devi Saraf v. Thakur Gopinath Jee

2000-05-08

GURUSHARAN SHARMA

body2000
Judgment Gurusharan Sharma, J. 1. One Sitaram left behind six sons, Brij Bihari Das, Nawal Bihari Das, Narayan Das, Purushottam Das, Hari Das and Awadh Bihari Das. 2. According to plaintiff, after death of Sitaram, his son, Narayan Das filed Partition Suit No. 59 of 1928, which was disposed of on 2.2.1929 in temrs of compromise, whereby three brothers, namely, Brij Bihari Das, Nawal Bihari Das and Narayan Das separated and got properties to the extent of their respective shares of 2 annas 8 pies each and the remaining three brothers, namely, Purushottam Das, Hari Das and Awadh Bihari Das jointly got takhta of 8 annas share. Some properties were endowed to the family idol, Thakur Gopinath Jee in the said compromise and Purushottam Das acted as Shebait. 3. On 17.10.1949, Purushottam Das executed a will in favour of the said family idol and bequeathed his 1/3rd share to the said deity and Hari Das and Awadh Bihari Das were appointed executors therein. 4. Purushottam Das died on 25.12.1953. Thereafter in respect of the said will, Probate Case No. 22 of 1954 was filed, which was converted into Title Suit No. 5/3 of 1954 and was decred after contest and probate was granteed. F.A. No. 388 of 1962 filed against grant of probate by Mostt. Chamela Kuer and Mostt Bhagwan Dei, who were respectively widow and daughter of Purushottam Das was also dismissed. 5. In the meantime, Partition Suit No. 13 of 1957 was filed by the aforesaid two ladies, which was decreed and F.A. No. 344 of 1960 filed by Hari Das and others against the said decree was dismissed by this court on 2.1.1965. In the meantime, Mostt. Chamela Kuer expired and so in the final decree separate takhta of 1/3rd share was prepared only for Mostt. Bhagwan Dei and she was given her share at one place in Holding Nos. 13/16 and 26/26. 6. Thereafter Mostt. Bhagwan Dei filed Execution Case No. 11 of 1968, but before delivery of possession was given to her she died issueless. 7. However, according to plaintiff heirs of Hari Das and Awadh Bihari Das, defendants 3 to 7 got 2/3rd share in Holding no. 47/39 and remaining 1/3rd share therein belonged to Thakur Gopinath Jee, defendant no. 1. Defendants 3 to 7 by registered sale deeds dated 16.6.1988 and 28.7.1988 transferred their 2/3rd share in the aforesaid Holding no. 7. However, according to plaintiff heirs of Hari Das and Awadh Bihari Das, defendants 3 to 7 got 2/3rd share in Holding no. 47/39 and remaining 1/3rd share therein belonged to Thakur Gopinath Jee, defendant no. 1. Defendants 3 to 7 by registered sale deeds dated 16.6.1988 and 28.7.1988 transferred their 2/3rd share in the aforesaid Holding no. 47/39 to the plaintiff. Plaintiff thereafter started realising rent from the tenants in occupation of the aforesaid holding. 8. In course of mutation proceeding in Patna Municipal Corporation, Ramashish Mishra, defendant no. 2 filed objection claiming to be purchaser of 1/3rd share in the said holding from Mostt. Bhagwan Dei. Objection of defendant no. 2 was rejected and plaintiffs name was mutated. 9. Plaintiff claimed that sale deed, if any, alleged to be executed by Mostt. Bhagwan Dei in favour of defendant no. 2 was forged, fabricated, void and fictitious document and he did not acquire any right, title or interest in the property in question, in view of grant of probate of the aforesaid will executed by Purushottam Das. 10. There was no partition by metes and bound between plaintiff and defendant no. 1 in respect of the suit property, detailed in Schedule II to the plaint and as such plaintiff filed the present suit for partition of her 2/3rd share therein. 11. Defendant no. 1 filed written statement supporting the plaintiffs case that she was entitled to partition of her 2/3rd share in holding no. 47/39. 12. Defendant no. 2 filed separate written statement and contested the suit. It was admitted by him that those three brothers, namely, Purushottam Das, Hari Das and Awadh Bihari Das had equal share in the joint family property. According to him, Mostt. Bhagwan Dei, daughter of Purushottam Das, who had inherited 1/3rd share in Holding no. 47/39 sold the same by registered sale deed dated 2.7.1974 to him. 13. Further case of defendant no. 2 was that Thakur Gopinath Jee, defendant no. 1 had no right, title or interest over any portion of the suit property and as such plaintiff was not entitled to seek partition from the said defendant no. 1. 47/39 sold the same by registered sale deed dated 2.7.1974 to him. 13. Further case of defendant no. 2 was that Thakur Gopinath Jee, defendant no. 1 had no right, title or interest over any portion of the suit property and as such plaintiff was not entitled to seek partition from the said defendant no. 1. In alternative, it was pleaded that as evident, the suit premises covered only an area of 1 katha 5 dhurs and 12 dhurkies and in the way in which constructions have been made on it, any partition thereof in favour of plaintiff would render it completely useless. In case court was of the opinion that principle of Section 4 of the Partition Act was not applicable in alternative, applying principle of Section 2 of the said Act, defendant no. 2 ought to be given preferential right to purchase plaintiffs 2/3rd share therein. 14. Defendant no. 2 was in occupation of the suit premises as tenant from before and purchased 1/3rd share therein. As such in case suit was decreed and plaintiff was held entitled to partition 2/3rd share in the holding, it would not affect right of defendant no. 2 to continue therein as tenant. 15. By impugned judgment and decree dated 20th March 1996, suit was decreed in part against defendant no. 2. The plaintiff was field entitled to get compensation of Rs. 2,25,000/- for her 2/3rd share in the suit holding no. 47/39, within Ward no. 26/32 of Mohalla Jhauganj, P.S. Chowk, Patna City, town and District, Patna. Defendant no. 2 was directed to pay the above amount to plaintiff within four months, otherwise she would pay compensation of Rs. 1,12,500/- to defendant no. 2 for his 1/3rd share in the suit holding and then she (the plaintiff) would also be entitled to get possession over the entire holding through processes of court. 16. The plaintiff has filed the present appeal challenging the impugned judgment and decree, inter-alia, on the ground that the trial court erred in directed (sicing ?) sale of plaintiffs 2/3rd share in the suit holding to defendant no. 2, instead of passing a preliminary decree for partition of her 2/3rd share therein. 17. Mr. T.N. Maitin, counsel for the appellant submitted that suit holding is a double storied building consisting of rooms, Varanda, hall, latrine, bathroom etc. 2, instead of passing a preliminary decree for partition of her 2/3rd share therein. 17. Mr. T.N. Maitin, counsel for the appellant submitted that suit holding is a double storied building consisting of rooms, Varanda, hall, latrine, bathroom etc. and no material was brought on record to show that it was not fit to be partitioned into two parts. Even a commission was not appointed to hold local inspection and submit report in this regard. 18. It was further submitted that as defendant no. 2 was in occupation of the entire holding, wrongly and forcefully without any right, title or interest, it was not correct to say that in case the suit holding was partitioned in two parts, its intrinsic worth was to be destroyed. It was, therefore, submitted that since there was no dispute that in the suit holding plaintiff has got 2/3rd and defendant no. 2 has got 1/3rd share, the impugned judgment and decree may be set aside and direction be given to carve out two portions in holding no. 47/39 to the extent of 2/3rd for the plaintiff and 1/3rd for the defendant no. 2. 19. Mr. Sidheshwari Prasad Singh, Senior Counsel for the respondent no. 2 placed reliance on a decision of apex court in Badri Narain Prasad Choudhary & others V/s. Nilratan Sarkar ( AIR 1978 S.C. 845 ), wherein it was held that where the suit property was so small that it cannot be conveniently partitioned by metes and bounds without destroying its intrinsic worth, there was no alternative but to resort to processes called owelty, according to which rights and interest of the parties in the property could be separated, only by allowing one of them to retain the whole of the suit property by payment of just compensation to the other. It was further held in the said decision that where the defendant was the smaller co-sharer holding 3/16th share and was using the property as shop-cum-residence, equity required that he should be given preferential right to retain the whole of the suit property on payment of compensation being the just equivalent to the value of the plaintiffs 13/16th share to them. 20. 20. In the said case the defendant, who was the smaller co-sharer was using the suit property as shop-cum-residence, therefore, in the opinion of their lordships equity required therein that the said defendant should be given a preferential right to retain whole of the suit property on payment of compensation being the just equivalent to the value of the plaintiffs share to them. The apex court, in such circumstance, gave the said defendant first option to retain the whole property on payment of 13/16th share of that valuation to the plaintiff within a period of three months or such further period that may be granted by the court of first instance, failing which plaintiff was held entitled to be allotted and put in possession of the whole of the property on payment to the defendant on 3/16th share of the value of the property determined by the court. 21. Another decision of a Division Bench of Calcutta High Court in Basanta Kumar Ghosh V/s. Motilal Ghosh & others (11 Indian Cases 370) was cited, wherein it was held that whether section 4 of the Partition Act, 1893 applied or not, it was a well known principle of equity, which must be adopted in all partition cases, that when it was inconvenient to divide property, that property must be left in possession of the person in occupation and the other person, who cannot conveniently get actual possession may be compensated. 22. Admittedly, area of the suit premises is 1 Katha 5 dhurs 12 dhurkies and it is a double storied building. Its opening is on the main road, namely, Ashok Raj Path. There is nothing on record to suggest that partition of the holding in question in two parts2/3rd and 1/3rd was not possible or if partitioned its intrinsic worth shall be destroyed. 23. According to his requirement, defendant no. 2 had purchased 1/3rd share in the holding as far back as in the year 1974 and the plaintiff purchased the remaining 2/3rd share in the year 1988 for her requirement. In my opinion, in the present case ratio of decision in Badri Narain Choudhary (supra) was not applicable. When defendant no. 2 purchased 1/3rd, he had no proposal to purchase remaining 2/3rd also. There is nothing on record to show that defendant no. In my opinion, in the present case ratio of decision in Badri Narain Choudhary (supra) was not applicable. When defendant no. 2 purchased 1/3rd, he had no proposal to purchase remaining 2/3rd also. There is nothing on record to show that defendant no. 2 ever approached defendants 3 to 7 to transfer the remaining 2/3rd interest in the holding in question to him. 24. In my view, considering area of the suit holding and constructions existing thereon, it can conveniently be partitioned into two parts2/3rd and 1/3rd. 25. I, therefore, modify the impugned judgment and decree to the extent that the plaintiff is entitled to 2/3rd share and defendant no. 2 is entitled to remaining 1/3rd share in the suit holding no. 47/39. Parties may proceed for preparation of final decree and a Survey Knowing Commissioner may be appointed by the trial court to carve out two separate patties for the parties according to their respective shares. 26. This appeal is disposed of with aforesaid modification in the impugned judgment and preliminary decree. However, there shall be no order as to costs.