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2001 DIGILAW 522 (CAL)

Soumen Paul v. Babulal Rojha

2001-08-20

PRABIR KUMAR SAMANTA

body2001
JUDGMENT Prabir Kumar Samanta, J. 1. An application under section 4 of the Partition Act in a pending partition suit whether would be hit or not by Article 97 of the Limitation Act, 1963 is the subject matter for consideration in this revisional application. 2. The facts of this case for the present purpose are stated as under. One Sibapada Paul filed a suit for partition against the predecessor-in-interest of the defendant/petitioner of this revisional application. The said suit was registered as Title Suit (Partition) No. 44 of 1981. The said suit was for partition of a joint family dwelling house being premises No. 8D. Akrur Dutta Lane. It was alleged in the said partition suit that the aforesaid joint family dwelling house namely premises No. 8D, Akrur Dutta Lane belonged to Sibapada Paul and Nader Chandra Paul, the predecessor-in-interest of the defendant in majority shares. During the pendency of the aforesaid partition suit said Sibapada Paul allegedly entered into an agreement on 23rd December, 1986 with the opposite parties herein namely Babulal Rojha, Gogen Rojha, Gorachand Rojha and Gobinda Rojha for sale of his share in the said premises. On his death his wife, namely Smt. Dolly Paul by a registered deed of conveyance dated 5.10.1991 sold away all her right, title and interest in the said premises in favour of the said Rojhas. The said Rojhas' were thus added as plaintiffs in the said partition suit. In the said partition suit the defendant/petitioner made an application under section 4 of the Partition Act for buying out the share of Sibapada Paul in the said joint family dwelling house which was transferred as above to the strangers to the family namely the said Rojhas, the opposite parties herein. The said application was filed on 18th March, 1993 while the deed of conveyance in favour of the said Rojhas was registered on 5.10.1991. The said Rojhas being added as plaintiffs to the partition suit raised a plea that in view of the Article 97 of the Limitation Act, 1963 the said petition under section 4 of the Partition Act was barred by limitation which was upheld by the impugned order dated 30th June, 2000 made in Misc. The said Rojhas being added as plaintiffs to the partition suit raised a plea that in view of the Article 97 of the Limitation Act, 1963 the said petition under section 4 of the Partition Act was barred by limitation which was upheld by the impugned order dated 30th June, 2000 made in Misc. Case No. 2560 of 1994 which arose out of the said application under section 4 of the Partition Act filed in the original partition suit being Title Suit No. 44 of 1981 as aforesaid. 3. The Article 97 of the Limitation Act in its terms prescribes limitation of one year for the purpose of enforcing a right of pre-emption where the right is founded on law or general usage or on special contract. The starting point of limitation has been prescribed as the time, when the purchaser takes under the sale sought to be impeached, physical possession of the whole or part of the property sold, or where the subject matter of the sale does not admit of physical possession of the whole or part of the property, when the instrument of sale is registered. In this case the added plaintiffs/opposite parties alleged that possession of one room in the suit premises was made over to them on the date of sale i.e., 5.10.1991. Accordingly, it was contended that the application by the defendant/petitioner under section 4 of the Partition Act on 18.3.93 after expiry of the period of one year was barred. The learned Trial Court upheld the said contention as it was recited in the said deed of conveyance dated 5.10.1991 that possession had been delivered to the said transferees on the self same date. 4. Apart from the question involved in this revisional application the impugned order on it's face cannot be sustained as the learned Judge took it for granted that possession was delivered on the date of registration as recited in the deed of conveyance. Such a question ought to have been decided on the basis of the evidences of the parties in relation thereto. Even upon plain reading of the Article 97 of the Limitation Act, it appears that the possession as mentioned therein speaks of actual physical possession of the whole or part of the property sold. Such a question ought to have been decided on the basis of the evidences of the parties in relation thereto. Even upon plain reading of the Article 97 of the Limitation Act, it appears that the possession as mentioned therein speaks of actual physical possession of the whole or part of the property sold. The learned Judge did not discuss the evidences led by the respective parties in relation to their respective actual physical possession in the suit premises. The learned Judge therefore, ought not to have proceeded on the basis of the recital made in the deed of conveyance. In this respect he acted illegally and with material irregularity. 5. On the question as to the applicability of the Article 97 of the Limitation Act in an application under section 4 of the Partition Act in a pending partition suit it is necessary to look into the provisions of section 4 of the said Act. The said section reads as under: Partition suit by transferee of share in dwelling house. (1) 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 share holder 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, may give all necessary and proper directions in that behalf. (2) If in any case described in sub-section (1) two or more members of the family being such shareholders severally undertake to buy such share, the court shall follow the procedure prescribed by sub-section (2) of the last foregoing section. 6. Upon close scrutiny of section 4 it appears that for the purpose of invoking the right of pre-emption by a co-sharer the following conditions must exist (a) there must be a dwelling house belonging to an undivided family, (b) a share thereof has been transferred to a person who is not a member of such family, (c) the transferee has sued for partition. In the absence of any of these conditions the provision of the said section is not attracted. In the absence of any of these conditions the provision of the said section is not attracted. The said section therefore on it's face has it's applicability only in the partition suit and on its terms does not prescribed for any time frame for invoking the provisions thereof. 7. At the same time the law of limitation being the rules of procedure operates to bar the remedy but it cannot extinguish the right itself. The section 4 of the Partition Act confers a right on any member of a family being a shareholder of a dwelling house belonging to an undivided family to buy back a share of such a dwelling house which has been transferred to a person who is not a member of such family. In terms of the said section such right of pre-emption can be invoked only after a suit for partition is instituted and not before that. The Division Bench of this court in a decision reported in 72 CWN 128 (Birendra Nath Banerjee vs. Smt. Snehalata Devi & Ors.) held in paragraph 12 of the said report that it is well settled now that an application for pre-emption under section 4 of the Partition Act can be made at any stage of the suit or, in other words, at any stage, while the suit is pending. Furthermore, in that case the suit was treated as pending as because an appeal against the final decree passed in the suit was pending. In the said judgment it was further held that the decision reported in 49 CLJ 136, (Smt. Sattyavama Dey Vs. Jatindra Mohan Deb & Ors.) is an authority for the proposition that in regard to an application for pre-emption under section 4 of the Partition Act, the right arises from day to day while the partition suit is pending and no matter that the application has been made beyond three years of the date of the preliminary decree, it will still be in time. 8. It was further held in the said judgment that the right of pre-emption under the aforesaid statutory provision is a right, given by the statute, and on its wording, it subsists so long as the suit remains pending, or, in other words, so long as the suit has not been concluded or terminated by an effective final decree for partition. 9. 9. On the analogy of the principle that the right of pre-emption under section 4 of the Partition Act is exercisable in a pending partition suit at any stage, the rules of procedure as per Article 97 of the Limitation Act will have no application in relation to an application for pre-emption in the pending partition suit. Because the right of pre-emption under section 4 is not lost by the fact that the stranger purchaser has obtained possession of the whole or part of the property sold to him as the said section 4 does not make any difference for the purpose of its application, whether the transferee is in possession of the dwelling house or not. The substantive right of pre-emption conferred by the statute being thus irrespective of delivery of possession in favour of the stranger purchaser and exercisable in a pending partition suit, the bar of such remedy under Article 97 of the Limitation Act cannot have application so long the partition suit is pending. Thus, an application under section 4 of the said Act if made in a pending partition suit, for which the cause of action arose upon institution of such a partition suit and such a cause of action being a recurring one pending such partition suit, the provision of Article 97 of the Limitation Act cannot have any application therein. 10. As a matter of principle the aforesaid section was applied consistently to preserve the integrality of the family dwelling house and to enable the members of the family to keep the same for themselves as far as possible. Thus, section 4 is not confined only to a claim for pre-emption independently and irrespective of any partition of a family dwelling house. Thus, the Article 97 of the Limitation Act which on its face speaks of an independent proceeding for pre-emption does not have any application in a matter of pre-emption under section 4 of the Partition Act in a pending partition suit. 11. In all these views the impugned order holding the petition under section 4 of the Partition Act filed by the defendant/petitioner in the Partition Suit being Title Suit No. 44 of 1981 barred under Article 97 of the Limitation Act, 1963 is set aside. 11. In all these views the impugned order holding the petition under section 4 of the Partition Act filed by the defendant/petitioner in the Partition Suit being Title Suit No. 44 of 1981 barred under Article 97 of the Limitation Act, 1963 is set aside. The learned court below is accordingly directed to dispose of the said petition under section 4 of the Partition Act filed by the defendant/ petitioner on merits. The revisional application is thus allowed. 12. If urgent xerox certified copy of this order is applied for by the parties, the same should be given expeditiously. Revisional application allowed.