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2001 DIGILAW 730 (CAL)

BIMALENDU CHATTERJEE v. SARITA CHHYAJLANI

2001-12-05

BHASKAR BHATTACHARYA

body2001
BHASKAR BHATTACHARYA, J. ( 1 ) BY this revisional application, applicants under Section 4 of the Partition Act ("act") have challenged an order dated june 30, 1999 passed by the learned civil Judge, Senior Division, 4th court, Alipore in Misc. Case No. 72 of 1994 thereby rejecting an application under Section 4 of the Act filed by the petitioners. ( 2 ) THERE is no dispute that a suit for partition being Title Suit No. 23 of 1976 filed by some of the co-sharers of the petitioners was finally decreed on June 17, 1982. The present petitioner No. 1 was defendant No. 7 and the petitioner No. 2 is the son of the original defendant No. 2 of the said suit. The opposite party No. 1. an admitted stranger, by two different sale deeds dated September 11, 1993 and june 5, 1994 purchased Lot No. A allotted to the plaintiff Nos. 3 and 5 having 2/7th share and Lot No. B fallen to the plaintiff Nos. 4 and 6 having equal share respectively. After such purchase, the opposite party No. 1 started an execution case being Title execution Case No. 13 of 1994 for recovery of possession of her purchased portion by executing the final decree of partition passed in favour of her vendors. ( 3 ) THE present petitioners after getting notice of the said Title execution case entered appearance and filed an application under section 4 of the Act for pre-empting the shares purchased by the opposite party No. 1. The said application gave rise to the aforesaid Misc. Case No. 72 of 1994. ( 4 ) THE said application for preemption was resisted by the opposite party No. 1 by precisely raising two points. First, a part of the family dwelling house having been let out, the same lost the character of the 'family dwelling house' and secondly, the petitioners having accepted the final decree for partition by demarcating their respective portions in accordance with the allotment, they ceased to be co-sharers and as such at their instance the prayer for pre-emption was not maintainable. ( 5 ) THE learned trial Judge initially dismissed the prayer for preemption holding that the opposite party No. 1 being a tenant in the suit property for more than forty years could not be described as 'stranger purchaser'. ( 5 ) THE learned trial Judge initially dismissed the prayer for preemption holding that the opposite party No. 1 being a tenant in the suit property for more than forty years could not be described as 'stranger purchaser'. Besides, the learned trial judge was of the view that an application under Section 4 of the Act was not maintainable at the stage of execution. ( 6 ) BEING dissatisfied, the present petitioners preferred a revisional application under Section 115a of the code of Civil Procedure before the learned District Judge and the learned revisional Court below by the order dated August 19, 1995 disposed of the said rovisional application by setting aside the order passed by the learned trial Judge and remanding the matter back to him for fresh decision whether the property has been partitioned by metes and bounds. The learned revisional Court below however specifically held that an application under section 4 of the Act was maintainable even at the stage of execution. ( 7 ) AFTER remand, the learned trial Judge on consideration of the materials-on record again dismissed the application for pre-emption. This time, the learned trial Judge held that he was satisfied that the property was partitioned by metes and bounds and that the petitioners got their respective allotments. The learned Judge further held that by induction of tenant in a part of the property, the same lost the character of the family dwelling house. ( 8 ) BEING dissatisfied, the petitioners by the legal advice of their the then learned Advocates preferred a miscellaneous appeal being Misc, appeal No. 353 of 1999 before the learned Court below although no appeal lies against an order rejecting the application under Section 4 of the act. ( 9 ) THE learned Court of appeal below however instead of dismissing the appeal on the ground of maintainability went into the merit and dismissed the same. ( 10 ) THEREAFTER, the petitioners have been advised to challenge the order of the learned trial Judge after remand by filing the present application and have also filed separate application for condonation of delay in moving the present application after excluding the period spent in proceeding with the Misc. Appeal No. 353 of 1999. ( 10 ) THEREAFTER, the petitioners have been advised to challenge the order of the learned trial Judge after remand by filing the present application and have also filed separate application for condonation of delay in moving the present application after excluding the period spent in proceeding with the Misc. Appeal No. 353 of 1999. ( 11 ) AFTER hearing the learned counsel for the parties and after going through the materials-on-record I find that the petitioners on wrong legal advice of their learned Advocate preferred a miscellaneous appeal before the learned Court of appeal below which was not maintainable. It appears that the learned Court of appeal below erroneously entertained such appeal and even disposed of such an appeal on merit. The opposite party no. 1 also did not point out before court of appeal below that such an appeal was incompetent. If this defect was detected earlier, the petitioner could approach the appropriate forum earlier. Therefore, I am convinced that the petitioners were bona fide proceeding before a wrong forum and thus condone the delay in preferring this revisional application. ( 12 ) MR. Ghosh, the learned advocate, appearing on behalf of the petitioners has attacked the findings of the learned trial Judge by contending that mere induction of tenant in a portion of the suit property does not destroy the character of the house as a family dwelling house. According to Mr. Ghosh unless a permanent tenancy is created, such a finding is a perverse one. As regards the other finding that the suit property is already partitioned by metes and bounds, Mr. Ghosh contends that the opposite party No. 1 herself having initiated the execution proceedings, such plea is not available to the opposite party No. 1. ( 13 ) MR. Roychowdhury, the learned Counsel appearing on behalf of the opposite party No. 1 has on the other hand supported the order passed by the learned trial Judge. According to mr. Roychowdhury, the petitioners, not having applied for execution of the final decree for partition, it should be presumed that the petitioners have already got possession of their allotment and as such have ceased to be a co-sharer. Mr. Roychowdhury thus contends that at the instance of the petitioners, the prayer for preemption should not be entertained. Mr. According to mr. Roychowdhury, the petitioners, not having applied for execution of the final decree for partition, it should be presumed that the petitioners have already got possession of their allotment and as such have ceased to be a co-sharer. Mr. Roychowdhury thus contends that at the instance of the petitioners, the prayer for preemption should not be entertained. Mr. Roychowdhury further contends that a right of pre-emption being a very weak right, the Court while considering such a case should strictly construe Section 4 of the Act. Regarding the question whether by induction of a tenant, the character of the family dwelling house is lost, Mr. Roychowdhury relies upon the decision of the Supreme Court in the cases of Narashima v. Susheela Bai and Gautam Paid v. Devi Rani Paul and ors. ( 14 ) THE first question that arises for determination in this application is whether creation of tenancy in a portion thereof changes the character of a family dwelling house. The aforesaid question has been settled by a number of decisions of this Court. So long a permanent or irrevocable tenancy is not created, the question of the house ceasing to be a dwelling house of an undivided family does not arise. See Dulal Chandra v. Gosta behari. Even if, a part of the house, may be, a considerable part, has been let out to tenants, that fact does not justify the conclusion that the house has ceased to be a family dwelling house. See Santosh Kumar v. Kalipada satyendra v. Amar Nath. In the case of Narashima v. Susheela Bai (supra), relied upon by mr. Roychowdhury, the Supreme court was considering the provision of section 23 of the Hindu Succession act which deals with "dwelling house wholly occupied" by the members of the Hindu intestate. In such a case, the Supreme Court held that a tenanted house does not fit into this description. It was held therein that if the male heirs derive the right under that provision to resist partition of dwelling house, then correspondingly it is incumbent on the male heirs to keep the property well arranged, inhabited or occupied by themselves keeping the property available for female heirs to enforce the right of residence therein. It was held therein that if the male heirs derive the right under that provision to resist partition of dwelling house, then correspondingly it is incumbent on the male heirs to keep the property well arranged, inhabited or occupied by themselves keeping the property available for female heirs to enforce the right of residence therein. But if the latter right is frustrated on creation of third party rights or a contractual or statutory tenancy, the Apex Court continued, there remains no right with males to resist partition. Therefore, the principles laid down in the context of Section 23 of the Hindu Succession Act cannot have any application in interpreting Section 4 of the Act. ( 15 ) SIMILARLY, the principles laid down in the case of Gautam v. Debika (supra), are irrelevant for the purpose of deciding this case. In that case, the question was whether an application under Section 4 of the Act was maintainable even when the stranger does not pray for partition of his share. The apex Court answered the question in negative. In the present case, the opposite party No 1 a stranger, herself prayed for delivery of possession of the allotments in favour of her vendors. Thus, at her instance, the execution case having been initiated, in such an execution case, the other co-sharers, against whom execution has been levied, are entitled to maintain an action under Section 4 of the Act See ghanteswar Ghosh v. Madan Mohan ghosh and Ors. Therefore, the decisions cited by mr. Roychowdhury are of no avail to his client. ( 16 ) I thus hold by following the decisions of this Court mentioned above that by mere creation of tenancy in respect of a portion of the suit property does not affect the character of a family dwelling house and therefore does not disentitle the co-sharers from enforcing the right of pre-emption under Section 4 of the Act. ( 17 ) THE next question is whether the petitioners have ceased to be cosharers by virtue of partition of the property by metes and bounds. Since the opposite party No. 1 herself has started the execution case within the period of limitation for execution of the final decree for partition praying delivery of possession of the allotments of her vendors, she is precluded from alleging that the decree has been satisfied. Since the opposite party No. 1 herself has started the execution case within the period of limitation for execution of the final decree for partition praying delivery of possession of the allotments of her vendors, she is precluded from alleging that the decree has been satisfied. The fact that the opposite party No. 1 has sought execution and is bent upon to continue with the same against the petitioners and other co-sharers than her vendors itself suggests that it is her definite assertion that the other co-sharers are obstructing the opposite party No. 1 from getting the fruit of final decree. By filing such application she has further made it plain that her vendors also did not get possession of their allotments by dint of any partition by metes and bounds. In the same breath, she cannot assert that the final decree for partition has been satisfied by metes and bounds. Therefore, the aforesaid plea is not available to the opposite party no. 1. ( 18 ) I am not at all convinced by the extreme submission of Mr. Roychowdhury that after passing of the final decree and consequent physical possession of the petitioners in accordance with the allotments, the petitioners are not entitled to maintain the prayer for pre-emption as they have ceased to be co-sharers. ( 19 ) A final decree for partition takes effect not from the moment of passing of decree but from the time such decree is engrossed on stamp papers. Once it is so engrossed, the new separate title relates back to the date of passing of decree. No execution can be started unless the decree is so engrossed. Thus, after a decree is drawn up on stamp papers, the joint title of the parties comes to an end and the parties cease to be co-sharers. Now it is settled by the Apex Court in the case of Ghanteswar v. Madan mohan (supra), that the application under Section 4 of the Act can be filed for the first time in the execution proceedings if a stranger tries to take possession. The fact that an execution case has been filed necessarily follows that the decree has been engrossed on stamp papers and consequently it implies that by that time the erstwhile co-sharers have acquired separate title. The fact that an execution case has been filed necessarily follows that the decree has been engrossed on stamp papers and consequently it implies that by that time the erstwhile co-sharers have acquired separate title. ( 20 ) THUS, in the aforesaid decision, the Apex Court has approved the position that even after co-sharers have become separate in title they can maintain an application for preemption. All that is necessary is that the decree for partition must not be fully satisfied. Therefore, even if the petitioners are in possession of their respective allotments, so long the entire decree is not satisfied they can maintain such application if a stranger purchaser tries to take possession in execution of the final decree for partition. ( 21 ) MR. Roychowdhury lastly contended that a right of pre-emption is a weak right and as such the Court should strictly construe the language of Section 4 of the Act. I am quite alive to the observation of the Supreme court in the cases of Bishan Singh and ors. v. Khazan Singh and Ors. and radhakrishan v. Shridhar, wherein the Apex Court while considering the provision of Punjab Pre-emption Act and Berar Land Revenue Code respectively observed that a right of pre-emption is a weak right and the court does not look at such a right with favour. v. Khazan Singh and Ors. and radhakrishan v. Shridhar, wherein the Apex Court while considering the provision of Punjab Pre-emption Act and Berar Land Revenue Code respectively observed that a right of pre-emption is a weak right and the court does not look at such a right with favour. However, in case of ghanteswar v. Madan Mohan, the supreme Court while considering a case of pre-emption under Section 4 of the Act quoted with approval the following observations of Laik, J. in the case of Satya Narayan v. Biswanath in Paragraph 14 of the judgment:-"having considered the scheme of the Partition Act including its object which is to prevent the introduction of any foreign element into the group of family members and its aim which is to maintain homogeneity in respect of the entire family and particularly the provisions of Section 4 thereof, which does not indicate a contrary intention and after giving anxious consideration to the principles laid down but following the principle that the residence in a dwelling house of an undivided family should not, if possible (but not contrary to law), be thrown open to a stranger to the family and remembering that the terms of Section 4 of the Act are quite general and distinct from a decree passed in a partition suit and holding further the rule that the executing Court should not go behind the decree, is inapplicable in an application under Section 4 of the partition Act and not ignoring the provisions of section 44 of the Transfer of property Act and the rules of pre-emption governing the muhammadans, Buddhists, jews, Romans and others and agreeing with respect to the dictum of the judicial committee in 1915 (42) Ind app 10, ILR 37 All 129 (141): AIR 1914 PC 11 that the right of pre-emption is a "valuable right"- the object of such a right being the avoidance of a disagreeable stranger (though some may think it anarchism and a clog on freedom of contract)the Court held that an application under Section 4 of the Partition Act is maintainable even after the final decree is passed. . . . . . "thus, a right of pre-emption under Section 4 of the Act has been held to be a valuable right. . . . . . "thus, a right of pre-emption under Section 4 of the Act has been held to be a valuable right. ( 22 ) BE that as it may, I find that the learned trial Judge acted in the exercise of his jurisdiction illegally and with material irregularity in rejecting the application, for pre-emption by not considering that the averments in the execution application do not permit the opposite party No. 1 to take the plea of satisfaction of the final decree by metes and bounds. I have already indicated that she is a stranger and that the property is a family dwelling house of an undivided family within the meaning of the said section. ( 23 ) I thus hold that the petitioners are entitled to the relief of pre-emption. The learned trial Judge is directed to make valuation in accordance with law and to pass consequential direction for payment of the amount. Since the matter is pending for last seven years the trial Judge is directed to dispose of the proceedings within a month from the date of communication of this order. No Costs. Revision allowed.