Abdul Sathar vs A. Nawab

Ratnam, J.—The defendant in O.S. No. 439 of 1967, Sub-Court, Coimbatore, is the petitioner is this civil revision petition. That suit was

instituted by the respondent herein for partition and separate possession of his 66/80 share in respect of a house. The petitioner, his mother, his

two brothers and four sisters were the owners of that property. All of them, excepting the petitioner, executed sales of their shares in the house in

favors of the respondent herein, who was a stranger to the frailly. Pursuant'' to such sales and claiming that the respondent was in joint possession

of the house along with the petitioner, the suit for partition, referred to earlier, was instituted by the respondent herein on 5th September, 1967. On

16th December, 1968 the parties put into Court a joint memo to the effect that a preliminary decree for partition may be passed; but the question

of past and future manse profits may be relegated to the final decree proceedings. In accordance with that the learned Subordinate Judge,

Coimbatore, passed a preliminary decree as under:

(1) That the plaint mentioned properties more fully described hereunder be divided into 80 equal shares and the plaintiff be allotted 66 such shares

and the possession of the same be delivered to the plaintiff and

(2) that question of past and future manse profits be delegated to final decree proceedings and that each party do bear bus own costs.

Pursuant to this preliminary decree, a Commissioner was appointed and he had submitted a report and in accordance therewith, lots were cast and

a final decree was also passed on 23rd December, 1969. Nearly eight years thereafter on 22nd November, 1977, the petitioner filed an

application purporting to be under S. 4of the Partition Act, 1893, praying that the share of the respondent may be valued and directed to be sold

to the petitioner. That application was opposed by the respondent herein on the ground that inasmuch as the final decree in the suit had been

passed and an allotment of properties had also been made, the application under S. 4of the Partition Act would not lie. The learned Subordinate

Judge sustained this objection of the respondent and held that the petition filed by the petitioner herein under S. 4of the Partition Act is not

maintainable and dismissed the same. In the civil revision petition, the learned counsel for the petitioner contends that an application under S. 4of

the Partition Act can be filed at any time, even after the passing of the final decree, but before possession of the properties allotted there under is

taken. On the other hand the learned counsel for the respondent contends that the passing of a final decree in a partition suit puts an end to the list

before the Court and the title of the parties to whom the properties have been allotted there under becomes indefeasible and therefore, no

application would lie after the passing of the final decree in the suit. Before proceeding to consider these rival contentions, the relevant statutory

provision viz., S. 4of the Partition Act may be noticed. That section runs as under:

4 (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 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 alt

necessary and proper directions in that behalf.

(2) If in case described in sub-s. (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-s. (2) of the last foregoing section.

Before an application under S. 4can be successfully maintained, the following conditions must be satisfied: (1) the suit must relate to the

dwelling-house of an undivided family; (2) a share in such a dwelling-house must have been transferred in favors of a stranger to the family; (3) that

stranger must have sued for partition; and (4) any member of the family, being a shareholder, should have claimed or undertaken to buy the share

of such transferee. If the above condition are satisfied, then Court shall make direction for the valuation of such share and direct the sale of such

share to such shareholder and give other necessary directions in this regard, Sub-s. (2) of S. 4is not really material, for purposes of the present

controversy. S. 4which provides for the purchase of the share of the transferee by a members of the transferor''s family comes into play only on the

institution of a suit for partition. Indeed, there is no indication as such, in the words of the section as to when the application under S. 4can be

successfully maintained. Even so, a provision as is found in S. 4cannot be so interpreted as to do away with rights, which have become confirmed

and final under a decree of Court. If, an application under S. 4can be permitted to be maintained at any point of time, irrespective of the attainment

of finality of rights of parties to the property dealt with and allotted under the decree, then, it would mean that S. 4is in the nature of an enabling

provision which permits going be bind a final decree and ultimately, undoing it. That the right under S. 4comes into existence and can be exercised

only on the institution of a suit for partition is clear and therefore, before the Court can proceed to act under S. 4with reference to any particular

property, it is obvious that the Court must have season over the subject-matter of the suit as well as the share of the party against whom the

application is filed. Only in that case, the Court can direct the sale of a share in favors of a member of the undivided family. In a case where the

final decree is passed as in the instant case and had remained un-assailed in any manner for nearly 8 years, it is doubtful whether the Court can be

said to have retained its season over the list in order to enable the party to invoke S. 4on the basis of which the relief could be afforded. Normally,

a suit for partition is deemed to be pending till the passing of the final decree by which specific and definite items of properties are allotted to the

respective parties or specific portions of a property are allotted to the parties. In such a case, on the passing of the final decree and the allotment of

the properties to the respective parties there-under, the court really becomes fuscous officio and does not retain in itself any further control over the

proceedings. In such a context therefore, after the passing of a final decree as such, the Court cannot act under S. 4of the Partition Act and

proceed to rewrite the final decree as it were undoubtedly, cases wherein an appeal has been preferred against the final decree stand on a different

footing. Having been appealed against, the final decree proceedings should be deemed to be pending and that precisely is the reason for S. 4being

permitted to be invoked even at the appellate stage in some cases. Apart from such cases, where a final decree had been passed by the trial court,

it appears that there is no question thereafter of an application being entertained under S. 4of the Partition Act to nullify the final decree which had

become final several years back. It is also necessary to bear in mind the difference between cases where title to the property had become

indefeasible and cases where possession of the properties so allotted under the final decree are sought to be taken. The object of S. 4is to put an

end to the title of the transferee to the share of the property purchased from the other members of the family and make it available to them and

therefore, in that context, the question of defeating the title of the purchaser by resort to S. 4assumes importance rather than the question of

possession of the property. It must also be stated that on the allotment of properties under a final decree, the title of the person to whom that

property is allotted becomes indefeasible. Thereafter, it is upto such a person to secure possession of the property so allotted to him by resorting

to execution proceedings in relation to that property. The circumstance that a particular person had not resorted to secure possession of the

property allotted to him under a final decree in a partition really does not touch upon the question of the applicability of S. 4which, as stated

already, has an impact on the question of title to the property and indeed extinguishes by the operation of that section the title of the person so

entitled to a share. Therefore, non-obtaining of possession of the properties allotted under the final decree cannot be pressed into service to claim

the benefit of the application of S. 4of the Partition Act. It is open to a person to whom the property has been allotted under a decree either to

resort to [execution for purposes of obtaining delivery or not. In some cases, it might even be that there is a surrender of the property without

resort to execution. Therefore, it cannot be laid that in all cases where the final decree had not been executed and possession taken, S. 4of the Act

can be given effect to. Prima fame, these considerations impel me to hold that the application filed by the petitioner eight years after the passing of

the final decree is certainly not maintainable.

However, the learned counsel for the petitioner as well as the respondent have invited my attention to certain decided cases of other Courts in

this regard. The learned counsel for the petitioner relied upon the decision in Satya Narayan Chakravarty v. Biswanath Paul and others 74.

Cal.W.N. 871 In that case a final decree was drawn up on 4th September, 1957 and the defendant in that suit, an undivided member of the family

and a shareholder, filed an application under S. 4of the Partition Act on 6th March, 1958, when the decree was pending execution. In considering

the question of the maintainability of that application, the Court took into account the scheme of the Act which, according to the Court, was to

prevent the introduction of a foreign element into the group of family members and to maintain homogeneity in respect of the entire family and held

that before possession of the allotted property is delivered pursuant to the final decree, an application under S. 4is maintainable. As pointed out

already, the scope and effect of S. 4is to do away with the title of the stranger purchaser and the question therefore of his taking possession or not

is not germane. It may also be pointed out that the title of the stranger purchaser does not become complete or effective only on his taking

possession of the property. Equally, it must be remembered that if the application under S. 4of the. Partition Act can be maintained after the final

decree, it will have the effect of compelling the purchaser of the undivided share to accept money equivalent in lieu of the share of the property in

specie, which would be directly opposed to the terms of the final decree as such, which has not in any manner been either modified or altered by

any procedure known to law. In addition, the view taken in this decision tunes counter to the expression of opinion in Birendra Nath Banerjee Vs.

Sm. Snehalata Devi and Another, to which attention apparently had not been drawn. Therefore, it is not possible to accept the reasoning in the

decision referred to by the learned counsel for the petitioner. To-similar effect is the judgment in Harendra Nath Mukharjee Vs. Shyam Sunder

Kuer and Others, . In that case also, the application under S.4was made in the course of the execution proceedings before the executing Court and

the Court had applied the principles in the decision in Satya Narayan Chakravarty v. Bishwanath PAUI 74. CAL.W.N. 871 referred to above.

The reasons for not accepting that view as correct have already been indicated and the same would hold good in respect of this decision as well.

On the other hand, in Sheodhar Prasad Singh and Others Vs. Kishun Prasad Singh and Others, . Halve, J., has held that application under S. 4of

the Partition Act may be made at the appellate stage or at any stage before the final decree.

In Mst. Mohammedi Begum v. Mohd, Nabi Hadi A.I.R 1955 N.U.C 4450 a Division Bench of the Allahabad High Court in dealing with the

question whether the benefit of an application under S. 4of the Partition Act can be availed of during the course of execution proceedings after the

final decree for partition, held that the executing court must execute the decree as it is found and cannot go behind the same and that any contention

that the execution court can meddle with the decree must have clear support of the statute. It was further held that S. 4of the Partition Act does not

say that the executing court can undo the partition decree and in place of a partition decree, substitute a decree for money equivalent of the

partitioned share. The count also further pointed out that S.4contemplates that such an offer should be made at such a stage, that the court should

have nothing to do with the partition of the share at all and therefore, the benefit of S. 4could not be given during the execution proceedings after a

final decree for partition was passed. In Birendra Nath Banerjee Vs. Sm. Snehalata Devi and Another, referred to earlier a Division Bench of the

Calcutta High Court equated the right to resort to an application under S. 4of the Partition Act to a right of preemption. Construing the section, the

Court held that on its wording, the right subsist; so long as the suit has not been concluded or terminated by an effective final decree for partition.

In this view, it was held that an application made at a time when an appeal Against a final decree is pending cannot be held to be not maintainable.

The learned counsel for the respondent brought to my notice the Judgment reported in Kali Kumar Mukherji v. Brahmananada Mukherji and

others. Though it is stated in the head note that it is only when the suit is for partition, that a member of the joint family may buy out the plaintiff

under S. 4of the Partition Act and that he is hot entitled to do so when the suit has been decreed and the decree for possession is being executed,

a perusal of the report shows that the judgment proceeded on the footing that the case does not fall within S. 4of the Partition Act at all. This case

therefore does not in any manner establish the stand taken by the learned counsel for the respondent. On a consideration of the language employed

in S. 4of the Partition Act and its requirements and its scope and object, it is manifest that any application under S. 4should be filed before the final

decree in a partition suit is passed and not later. In this view, the order of the Court below is per-fickly correct and cannot be assailed in any

manner. This civil revision petition fails and is dismissed. No costs.