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2015 DIGILAW 276 (CAL)

Prasanta Saha v. Susanta Kumar Saha

2015-03-20

HARISH TANDON

body2015
JUDGMENT : Harish Tandon, J. 1. The parties have been litigating since several decades in respect of a small property for partition and separation of their shares. 2. Admittedly, the property is not partible or divisible because of the number of co-sharers. It further appears that in course of the proceeding, some of the cosharers sold, transferred and conveyed their undivided interest in favour of the defendant no. 2, who, admittedly, acquired the undivided ¾th share of the property and the plaintiffs having undivided ¼th share in the suit premises. The partition suit is pending since 1955. 3. By the impugned order, the Court even after treating the application filed by the defendant no. 2 to be an application under Section 2 of the Partition Act (hereinafter referred to as 'said Act') proceeded to allow another application filed by the said defendant under Section 3 of the said Act. Simultaneously, the Court rejected the other applications filed by the plaintiffs by which the order dated 19th November, 2011 was sought to be recalled and/or reconsidered. 4. Mr. Dilip Kumar Mondal, learned advocate appearing on behalf of the petitioners, is very much vocal that by the impugned order the Court, in fact, rejected their application by which they seek to buy the shares of defendant no. 2 under Section 3(1) of the said Act. 5. The disputes, which hinges on the score of the respective submissions, are whether the defendant no. 2 has a right to invoke Section 3(1) of the said Act and an application filed by the petitioners under the aforesaid provisions can be rejected on the observations and/or findings recorded in the impugned order. 6. My attention is drawn to the aforesaid provisions of the Partition Act, which I feel that it would be relevant to reproduce the same as under: "2. 6. My attention is drawn to the aforesaid provisions of the Partition Act, which I feel that it would be relevant to reproduce the same as under: "2. Power to court to order sale instead of division in partition suits.- Whenever in any suit for partition in which, if instituted prior to the commencement of this Act, a decree for partition might have been made, it appears to the court that, by reason of the nature of the property to which the suit relates, or of the number of the shareholders therein, or of any other special circumstance, a division of the property cannot reasonably or conveniently be made, and that a sale of the property and distribution of the proceeds would be more beneficial for all the shareholders, the Court may, if it thinks fit, on the request of any of such shareholders interested individually or collectively to the extent of one moiety or upwards, direct a sale of the property and a distribution of the proceeds. 3. Procedure when shares undertakes to buy.- (1) If, in any case in which the court is requested under the last foregoing section to direct a sale, any other shareholder applies for leave to buy at a valuation the share or shares of the party or parties asking for a sale, the Court shall order a valuation of the share or shares in such manner as it may think fit and offer to sell the same to such shareholder at the price so ascertained, and may give all necessary and proper directions in that behalf. (2) If two or more shareholders severally apply for leave to buy as provided in sub-section (1), the court shall order a sale of the share or shares to the shareholder who offers to pay the highest price above the valuation made by the Court. (3) If no such shareholder is willing to buy such share or shares a the price so ascertained, the applicant or applicants shall be liable to pay all costs of or incident to the application or applications." 7. In operative portion of the order, the Trial Court recorded that the defendant no. 2 filed an application under Section 2 of the said Act and, therefore, has rightly proceeded under Section 3(1) of the said Act. 8. In operative portion of the order, the Trial Court recorded that the defendant no. 2 filed an application under Section 2 of the said Act and, therefore, has rightly proceeded under Section 3(1) of the said Act. 8. Under Section 2 of the said Act if it appears to the Court that by reason of the nature of the property to which the suit relates, or of the number of the shareholders therein, or of any other special circumstances, a division of the property is not reasonably and conveniently be made and it would be beneficial for the shareholders to have the distribution of the proceeds in the event the Court passes an order for sale, each shareholders interested individually and collectively are entitled to receive such proceeds as per their share and the Court shall order that the same to be effected in this regard. 9. Sub-section (1) of Section 3 of the said Act starts with the expressions "if, in any case in which the court is requested under the last foregoing section to direct a sale", which necessarily implies that the said provision can be invoked, the moment a request is made under Section 2 of the said Act. The expressions "any other shareholder" is of significant import as it does not apply to a shareholder, who approaches the Court under Section 2 of the said Act. If the expression "other" was absent in the said section and any shareholder is permitted to apply, there was no difficulty that a shareholder, who applies under Section 2 of the said Act, was legally entitled to invoke Section 3(1) of the said Act. The expression "other" debars the shareholder, who approached the Court under Section 2 of the said Act to apply under Section 3(1) of the said Act. 10. On plain and simple reading of the provisions it does not appear that there is any ambiguity in its interpretation. If both the provisions are read conjointly, this Court does not find that there is any ambiguity in holding that Section 3(1) of the said Act is subject to the provisions of Section 2 of the said Act. 10. On plain and simple reading of the provisions it does not appear that there is any ambiguity in its interpretation. If both the provisions are read conjointly, this Court does not find that there is any ambiguity in holding that Section 3(1) of the said Act is subject to the provisions of Section 2 of the said Act. There is no hesitation to say that the expressions "any other shareholder applies for leave to buy at a valuation the share or shares of the party or parties asking for sale" sufficiently indicates that the shareholder other than the shareholders applying for sale under Section 2 of the said Act is entitled to invoke the said provision and the Court is obliged to ascertain the price or the valuation of the shares. 11. The support can be conveniently made to the aforesaid propositions to the judgment of the Hon'ble Supreme Court rendered in case of Nitish Chandra & Anr. v. Promode Kumar & Ors., reported in AIR 1953 Calcutta 18 and it would be apt to quote paragraph 12 thereof, which runs thus: "12. On a plain reading of the section, it seems to us that an application under section 3 can be filed after the request has been made to the Court under section 2, Partition Act. The section does not provide for any limit of time after which the application cannot be entertained. In these circumstances, on a plain reading of the section we would hold that an application under section 3 could be made at any time after the request is made under section 2 and before a sale has actually been held under section 2." 12. While concurring with the aforesaid judgment, R.P. Mookerjee, J. in a separate judgment held: "It is one of the fundamental rules of interpretation that the sections should ordinarily be interpreted as they stand without the addition of any word. If section 3, Partition Act, can reasonably be interpreted without the importation of such words it will not be proper for the Court to introduce limitations based upon such new words so as to make it impossible for an application to be made after a particular date." 13. If section 3, Partition Act, can reasonably be interpreted without the importation of such words it will not be proper for the Court to introduce limitations based upon such new words so as to make it impossible for an application to be made after a particular date." 13. The learned advocate for the opposite parties submits that if the property have been valued through a Commissioner and an objection to the acceptance of the report is rejected by the Court and affirmed on dismissal of the revisional application, the petitioners cannot wriggle out therefrom and invite the Court to recall the said order. It is further submitted that there is no impediment on the part of the shareholder applying under Section 3(1) of the said Act even when an approach is made under Section 2 of the said Act by himself or no approach is made under Section 2 of the said Act, as the said provision is independent and Section 2 is subject thereto. By relying upon a judgment rendered in case of Sukhendu Bikash Addy v. Bipin Behari Addy & Ors., reported in AIR 2002 Calcutta 60, it is submitted that any of the co-sharer can apply under Section 3 and once the sale is directed, it cannot be assailed subsequently. 14. In the said report, the Co-ordinate Bench had no occasion to consider the point whether Section 3 of the said Act can be invoked by a shareholder after having applied under Section 2 of the said Act or Section 3 imbibed within itself all the shareholders including the one, who approached under Section 2 of the said Act. 15. As I have already indicated that the expression "any other shareholder" would be rendered otios and/or meaningless if all or any of the shareholders is permitted to apply and/or invoke the said provision including the one, who already approached the Court under Section 2 of the said Act. Any interpretation, which is opposed to the legislative intent or rendering the provisions unworkable should be avoided. It is no longer res integra that the judgment rendered by the Court, which is contrary to the statute, cannot be held to be good law. 16. The Division Bench in the case of Nitish Chandra & Anr. Any interpretation, which is opposed to the legislative intent or rendering the provisions unworkable should be avoided. It is no longer res integra that the judgment rendered by the Court, which is contrary to the statute, cannot be held to be good law. 16. The Division Bench in the case of Nitish Chandra & Anr. (supra) was considering the point, which is directly involved in the instant case and have observed that Section 3(1) of the said Act is subject to Section 2 of the said Act. 17. This Court does not find that any departure to the said decision is called for. It is abundantly clear that a shareholder, who earlier applied under Section 2 of the said Act, is kept outside the purview of Section 3(1) of the said Act and it is only the other shareholders, who can invoke such provision. 18. The Trial Court, in my view, has acted just opposite to the spirit and purport of the statute and the provisions contained therein and, therefore cannot be legally sustainable. 19. However, an argument is advanced on behalf of the opposite parties that his clients never applied under Section 2 of the said Act and the Court have proceeded as the plaintiffs at one point of time agreed to sale their shares to them, which can be deciphered from the recording made in an order dated 19th November, 2011. 20. This Court does not find that the Trial Court had considered the matter in the light of the aforesaid contentions but have proceeded on the wrong premise that the defendant no. 2, who having applied under Section 2 of the said Act, is entitled to invoke the provisions of Section 3(1) of the said Act. 21. The order impugned is, therefore, set aside. 22. The Trial Court is directed to consider the said application filed by the defendant no. 2 afresh and shall record its finding as to whether the defendant no. 2 had, in fact, approached the Court under Section 2 of the said Act previously or not and thereafter shall record his finding over the entitlement of the said defendant to maintain an application under Section 3(1) of the said Act. 23. With these observations, the revisional application is disposed of. There will be no order as to costs. Application disposed of.