Krishnadhone Chatterjee vs Ajit Kumar Mitra

S.K. Bhattacharyya, J.—This appeal by the Plaintiff is directed against the concurrent decision of the Courts below and arises out of a final decree in a suit for partition.

Facts which are no longer in dispute may briefly be stated : The Plaintiff, who is a stranger purchaser, purchased six annas interest in the suit property by a kobala, dated February 15, 1955 and thereafter sued for partition of his share of the said property. The Defendant No. 2, who is also a stranger purchaser of two annas share in the aforesaid bhiti, tank and bagan properties, was made a party Defendant in the suit. The property originally belonged to the predecessor of the Defendant No. 1, who contested the suit for partition, inter alia, asserting his right to pre-empt the portion purchased by the Plaintiff and the Defendant No. 2 u/s 4 of the Partition Act. The suit was decreed in preliminary form on June 1, 1960, by the learned Munsif and the Court gave the Defendant No. 1 liberty to purchase the shares of the Plaintiff and the Defendant No. 2 u/s 4 of the Partition Act. On September 26, 1962, the Defendant No. 1 filed two petitions--one for making the decree final, inter alia invoking his right u/s 4 of the Partition Act and expressed his intention to purchase the shares of the Plaintiff and the Defendant No. 2 and another for bringing on record the heirs of the deceased Respondent No. 2 who died in the meantime. The substitution having been effected, the Court directed appointment of a pleader Commissioner on November 19, 1964, for making partition in terms of the preliminary decree passed in the suit and for valuation of the shares that the Defendant No. 1 intended to purchase u/s 4 of the Partition Act. The Commissioner submitted his report on November 29, 1966, to which the Plaintiff filed an objection. The objection against the Commissioner''s report was heard on February 22, 1967, on which date the Court overruled the objection and accepted the report and map of the pleader Commissioner, made the preliminary decree final with the Commissioner''s report and map being made part of it. On March 3, 1967, the Defendant prayed for permission to deposit a sum of Rs. 1,415-63 and the challan for the amount was passed.

Against this decision of the learned Munsif accepting the Commissioner''s report and making the decree final, the Plaintiff preferred an appeal to the learned District Judge, Hooghly, who dismissed the appeal on the ground that the appeal was incompetent and the valuation of the Commissioner was rightly accepted by the learned Munsif. It is against this decision the Plaintiff preferred the Second Appeal to this Court.

Mr. Tarun Chatterjee, learned Advocate appearing for the Appellant, has assailed the decision of the learned Judge on three grounds. In the first place, it was contended that the learned Judge was in error in holding that the appeal was incompetent as no certified copy of the decree was filed. Mr. Chatterjee contends that an order for sale u/s 4 of the Partition Act is deemed to be a decree within the meaning of Section 2 of the CPC by virtue of the provisions of Section 8 of the Partition Act and an appeal against the said order need not be accompanied by the certified copy of a decree as required by Order 41, Rule 1 of the Code of Civil Procedure. In the second place, Mr. Chatterjee contends that there being no direction for sale of the Plaintiff''s share in accordance with the provisions of Section 4 of the Partition Act, the learned trial Court was not competent to refer the matter to the Commissioner for ascertaining the valuation of the Plaintiff''s share or to accept the same. Form of the decree passed in the suit was also challenged by Mr. Chatterjee. Lastly, Mr. Chatterjee contended that the valuation arrived at by the Court below was clearly erroneous and against the weight of evidence on record and as such, should be set aside by this Court.

Mr. Haridas Ghose, learned Advocate appearing for the Respondents Nos. 1 and 2, justified the order of the Court of Appeal below both on the ground of incompetency of appeal before the learned District Judge and also as on the form of the decree passed in this case. Mr. Ghose further contended that the finding of the Court of Appeal below on the question of valuation being a question of fact could not be interfered with by this Court in the Second Appeal.

Before I take up the first objection of Mr. Chatterjee it will be useful to refer to certain dates. The decision of the learned Munsif making the preliminary decree final, was passed on February 22, 1967. On March 23, 1967, the Plaintiff filed the appeal before the District Judge, Hooghly and on April 7, 1967, the decree was sealed and signed by the learned Munsif. On April 27, 1967, the appeal was admitted by the learned lower appellate Court on the representation that the decree had not till then been drawn up. As the appeal arose out of an order passed u/s 4 of the Partition Act, it was admitted. The learned Judge pointed out that even though the decree was actually drawn up on April 7, 1967 and the certified copy made ready it was represented to the Court on April 27, 1967, that the decree had not been drawn up yet. The learned Judge thought that the certified copy of the decree should have been filed even at a subsequent stage of the appeal, after obtaining time from the Court for the purpose. It appears from the order-sheet of the appellate Court that on April 4, 1967, the learned Judge recorded an order on the prayer of the Appellant for dispensing with the filing of the certified copy of the decree and deferred consideration of the matter till April 27. 1967 when the appeal was admitted. It is true that the Plaintiff Appellant took the certified copy of the decree before the appeal was admitted and it was not pointed out to the Court on April 27, 1967, that the decree had been drawn up in the meantime. Mr. Chatterjee relying on the provisions of the Partition Act and certain decisions of this Court contended that an order passed u/s 4 of the Partition Act directing sale of a share was deemed to be a decree within the meaning of Section 2 of the CPC as per provisions of Section 8 of the Partition Act. This deeming provision, according to Mr. Chatterjee, clothes the order passed u/s 4 with the colour of a decree and no formal decree is required to be drawn up for preferring an appeal to the appellate Court. Mr. Chatterjee also referred to the analogous provisions of Sections 47 and 144 of the Code of Civil Procedure, which are also deemed to be decrees within the meaning of Section 2(2) of the Code. By virtue of the definition of a decree in Section 2(2) of the Code of Civil Procedure, determination of any question within Section 47 or Section 144 of the Code shall be deemed to be a decree. Mr. Chatterjee thus contends that an order u/s 4 of the Partition Act is at par with an order under Sections 47 and 144 of the CPC as also with an order u/s 158(3) of the Bengal Tenancy Act and it is not necessary that appeals against such orders should be accompanied by a copy of the decree. In support, Mr. Chatterjee relied upon the cases of Ganga Dutt Murarka v. Bibhabati Debi 60 C.W.N. (1955) 871, Devendra Nath Sinha v. Narendra Naih (1925) 30 C.W.N. 497 and Kamala Das v. Tarapada Mukherji (1925) 15 C.W.N. 498.

Section 8 of the Partition Act does not provide that an order for sale made by a Court under Sections 2, 3 and 4 is a decree within the meaning of Section 2 of the CPC but directs that it ''shall be deemed to be a decree''. By Section 8 of this Act, the definition of a decree as given in Section 2(2) of the CPC is extended. The words ''deemed to be'' have been used to impose for the purpose of this Statute an artificial construction of the word decree'' that would not otherwise prevail. It is well-settled that when a thing is to be ''deemed'' something else, it is to be treated as that something else with the attendant consequences, but it is not that something else : Vide observation of Cave J. in the case Rex v. Norfolk Co. L.J. Q.B. 380. Therefore, the real object of this deeming provision, to quote the words of their Lordships of the Judicial Committee in the case of Commissioner of income tax v. Bombay Trust Corporation Ltd. 34 C.W.N. 230 (235), is that when a person or a thing is ''deemed to be'' something, the only meaning possible is that whereas he or the thing is not in reality that something, the Act of Parliament requires him to be treated as if he or the thing were. The word ''deemed'' is more commonly used for the purpose of creating a ''statutory fiction'', that is, for the purpose of extending the meaning of some term to a subject-matter, which it does not properly designate and when used in that sense, it becomes very important to consider the purpose for which the statutory fiction is introduced. Judged in the above background let me proceed to examine the cases relied on by Mr. Chatterjee.

In the last cited case of Kamala Das Supra the question that arose for decision before the Division Bench of this Court was whether an appeal against an order passed u/s 47 of the Code of 1908 was out of time and should be registered. The Division Bench held that in the case of an order and as much in the case of a decree, there may be a judgment which gives statement of the grounds upon which the decree or order is passed and the memorandum of appeal preferred against such a decree or order, should be accompanied by a copy of the judgment as also by a copy of the decree or order as the case may be. In execution proceedings, however, although there is a judgment, an order that is the formal expression of the decision is not frequently drawn up and in such cases the concluding portion of the judgment which embodies the order may be treated as the order against which the appeal is preferred and time would run from the date of such an order. In the case of Debendra Nath Sinha Supra the question that arose for decision before another Division Bench of this Court was whether the time for filing an appeal under Schedule III, Clause 4 of the Bengal Tenancy Act in case of an order passed u/s 158(3) of the Bengal Tenancy Act, 1885, should run from the date of such order and whether it was necessary to file a formal decree following such orders along with the memorandum of appeal. Section 158(3) of the Bengal Tenancy Act, inter alia, provides that the order on an application under that Section shall have the effect of and be subject to the like appeal as decree. The Division Bench held that the plain meaning of the Section was that an order passed u/s 158(3) should be regarded as a decree under Schedule III, Clause 4 and time would run from the date of the order. When it was pointed out to their Lordships that in such cases the Courts below usually drew up formal decrees in order to show the result of the litigation, their Lordships observed as follows:

But I am unable to hold that such decrees must be filed along with the memorandum of appeal and that the time for presentation of appeals ought to be calculated from the dates of such decrees.

The case of Ganga Dutt v. Bibhabati Supra arose out of an order passed u/s 4 of the Partition Act and a Division Bench of this Court vested with the jurisdiction to hear miscellaneous appeals arising out of orders was faced with a challenge that an order for sale passed u/s 4 of the Partition Act, which is deemed to be a decree within the meaning of Section 2(2) of the Code of Civil Procedure, is really an appeal from a decree and not an appeal from an order and as such the Division Bench had no jurisdiction to hear such an appeal. The Division Bench held that an order, u/s 4 of the Partition Act, which is deemed to be a decree within the meaning of the Code of Civil Procedure, is at par with orders passed under Sections 47 and 144 of the CPC and consequently, the appeals therefrom may be classified either as appeals from orders under Sections 47 and 144 of the Code or equally reasonably as appeals from original decree. The Division Bench further held that it was impossible to say that it was wrong to classify them as appeals from orders. The question whether the Appellant had to put in the copy of the decree in such a case was not, however, the subject-matter in issue in any of these decisions, but it is obvious that by reason of the deeming provision of Section 8, an order u/s 4 of the Partition Act is to be treated as a decree and no formal expression of the Court''s decision need be drawn up in such a case, or if drawn up, should necessarily accompany the copy of the order passed u/s 4 in any appeal filed before the superior Court. That being the position, the learned District Judge, in my opinion, was in error in treating the appeal as incompetent in view of the provisions of Order 41, Rule 1 of the Code.

Mr. Ghose for the Respondents sought to distinguish the decision of the learned lower appellate Court on the footing that the appeal was not against any order passed u/s 4 of the Partition Act but an appeal against the final decree in a partition suit and as such, the learned appellate Court was perfectly justified in throwing out the appeal as incompetent in the absence of the decree. According to Mr. Chose, the order passed u/s 4 has merged into the final decree, which is really under appeal in this case and in support relied on the Single Bench decision of the Patna High Court in the case of Kalipada Ash and Another Vs. Tagar Bala Dasi and Others, . In that case a preliminary decree was passed in a partition suit and the appeal was directed against that decree and the learned Judge held that whatever was done prior to the passing of the preliminary decree has merged into the decree, which was then under appeal and such questions whether Section 4 was applicable or not could not be agitated in the Second Appeal. Another decision on which Mr. Ghose placed reliance was the case of Nitish Chandra and Another Vs. Promode Kumar and Others, . That decision arose out or an order rejecting an application u/s 3 of the Partition Act after an order for sale was made u/s 2 of the Partition Act. That order was passed during the proceeding of a final decree in a partition suit and in the context, Section 8 was held inapplicable by the Division Bench to an order rejecting an application u/s of the Partition Act. This case, therefore, has no application to the facts of the instant case. The contention of Mr. Ghose, in the circumstances, cannot be accepted and the appeal, therefore, must be held to be competent before the learned District Judge.

The next contention of Mr. Chatterjee was that there was no order directing sale of the Plaintiff''s share, in accordance with the provisions of Section 4 of the Partition Act, by the Court and as such, the whole procedure adopted was irregular. Section 4 contemplates three conditions before the Court can take action under it. The first was that there must be a dwelling house belonging to an undivided family. The second was that the share thereof should have been transferred to a person who is not a member of such a family and the third is that the transferee should sue for partition. It is no longer disputed before me that these three basic conditions contemplated in Section 4 of the Partition Act are present in the instant case. When a stranger purchaser has sued for partition of an undivided family dwelling house on the basis of his purchase of a share therein, Section 4 comes into play only after the Court has found that the transferee was entitled to a decree for partition. Such a view was taken by a Division Bench of this Court in the case of Niranka Sashi Roy and Another Vs. Swarganath Banerjee, . In fact, that decision goes even further and lays down that no order can be passed u/s 4 of the Partition Act before the Court has found that such a transferee has succeeded in establishing his claim for partition of the undivided family dwelling house. It is only where the three aforesaid conditions are fulfilled, any shareholder of the family is entitled to pre-empt the share of the stranger transferee provided he gives an undertaking to buy the share of the transferee and upon such undertaking being given, the Court may make a valuation of the share and direct sale of the same to the pre-empting share-holder. It is clear, therefore, that the pre-empting share-holder must give an undertaking to the Court to buy the share of the stranger transferee at a valuation to be made by the Court and such an undertaking, it has been pointed out in several cases, must be an unconditional undertaking to buy the share or at any rate a substantial compliance therewith. Reference may in this connection be made to the case of Krushna Kar and Others Vs. Kanhu Charan Kar and Others, and Govindji Dosa v. Kanji Mavji AIR 1952 Kut. 14. In the latter cited decision it is further pointed out that it is one of the prime conditions in an application u/s 4 that the Applicant should give an unconditional undertaking to buy the share from which he cannot subsequently resile. If we examine the records of the proceedings in the instant case, it is obvious that the learned trial Court in the instant case adopted a somewhat queer procedure in dealing with the application u/s 4. The Defendant No. 1 in his defence (para. 14) no doubt set up a case that he was entitled to pre-empt the share of the Plaintiff u/s 4 of the Act as the Plaintiff was a stranger to the family and a man of different caste. This assertion in the defence was not followed up in the evidence of the Defendant, nonetheless the Court in the preliminary decree dated June 1, 1960, gave the Defendant liberty to purchase the share of the Plaintiff and the Defendant No. 2 u/s 4 of the Partition Act. There was no undertaking on the part of the Defendant as contemplated in Section 4 of the Act and as interpreted in the cases of Krishna Kar v. Kanhu Charan Kar AIR 1962 Oris 85 and Govindji Dosa v. Kanji Mavji AIR 1952 Kut. 14. Assuming that the assertion made by the Defendant in para. 14 of his written statement is sufficient compliance with the provision of Section 4 the Court clearly failed to act in terms of the section or to direct the sale of the shares, but merely give the Defendant liberty to purchase the share of the Plaintiff and the Defendant No. 2 u/s 4 of the Partition Act. Mr. Ghose drew my attention to an application filed by the Defendant on September 26, 1962, inter alia, stating that he had been permitted to pre-empt 6 annas share of the Plaintiff and 2 annas share of the Defendant No. 2 in the suit property and he was willing to purchase the said shares of the Plaintiff and Defendant No. 2 and also prayed for ascertaining the valuation of the said shares by appointment of a pleader Commissioner. If this application is to be treated as an application u/s 4 of the Partition Act, it would be obvious that there was no order of the Court directing sale in terms of Section 4 in the instant case. The trial Court in making the decree final merely accepted the Commissioner''s report and made the preliminary decree final. The decree that was actually drawn up would show that there was no direction for sale at a valuation made by the Court nor did it contain any direction as to how the transfer was to be effected.

This takes us to the form of a decree in a partition suit where one of the share-holders had been permitted to pre-empt u/s 4 of the Partition Act. The question came up for consideration before the Allahabad High Court in the case of Chaudhri Mohammad Sulaiman Khan Vs. Mt. Amir Jan, . Dar J. pointed out that in such cases ordinarily the purchaser should be asked to deposit in Court the purchase money within a time to be fixed by the Court. If the purchaser deposited the purchase money within the time allowed by the Court, a decree should be passed in the suit in favour of the purchaser declaring that all rights of the Plaintiff or persons claiming partition in the property in the suit had been transferred by a court sale in favour of the Defendant on payment of the said sale price and the Plaintiff''s claim for partition stood dismissed. It was also pointed out therein that if necessary a sale certificate might be issued to the purchaser and in case of default by the pre-emptor, the decree for partition should be made in favour of the Plaintiff and the work of allotment should proceed. This decision was followed by the Nagpur High Court in the case of Sumitra v. Dhanu Bhiwaj AIR 1953 Nag. 193 and the learned Single Judge in that case in allowing the appeal directed the Defendants to deposit in the trial Court a certain sum on or before a certain date for payment to the Plaintiff for the purchase of his 2/3rd share in the plot in suit and upon such deposit being made by the Defendants Nos. 2 and 3 within the time fixed, the amount was directed to be paid to the Plaintiff and the Defendants Nos. 2 and 3 were to become owners of 2/3rd share of the Plaintiff of the site in suit and the Plaintiff''s claim for partition and separate possession of that share was to be dismissed. There was a further direction that if the Defendants Nos. 2 and 3 failed to make deposit by the time fixed, their claim u/s 4 of the Partition Act would stand dismissed and the Plaintiff would be entitled to apply for partition of his 2/3rd share and for separate possession.

In this connection reference may be made to the provisions of Order 20, Rule 14 of the CPC which provides for the requirements of a decree in a pre-emption suit and the Court in dealing with an application of Section 4 of the Partition Act, where it directs sale of a share whether in the preliminary decree or in the final decree, should in my view proceed to follow the directions contained in the provisions of Order 20, Rule 14(1) with suitable modification and should direct sale of the stranger purchaser at a valuation to be made by the Court and direct the pre-emptor to deposit the purchase money so fixed within a certain date together with such costs as the Court may direct and upon such deposit being made the share of the stranger purchaser shall be taken to have accrued to the pre-emptor as and from the date of such payment with a further direction that the stranger purchaser shall deliver up possession of the property if obtained by him to the pre-emptor and he will also be given the liberty to withdraw the purchase money upon compliance. If the purchase money is not deposited as per directions contained in the Court''s order, the application u/s 4 shall be rejected with such order as to costs as the Court considers fit and proper. The direction for sale u/s 4 may be passed either at the time of the preliminary decree or the final decree and the Court shall also direct that in the event of the pre-emptor not depositing the purchase money within the time specified, the stranger purchaser will be entitled to have his allotment in terms of the final decree.

Coming now to the question of valuation it is to be pointed out that the Courts below have approached the matter from an entirely wrong angle and the Commissioner also failed to come to a correct valuation. The Commissioner refused to consider a sale deed produced by the Plaintiff on the ground that the purchaser thereof was compelled to purchase a small piece of land under circumstances for which he had to pay an exorbitant rate. This document though produced before the Commissioner was ignored by the learned trial Court on the footing that it was not produced before the Commissioner and the learned trial Court failed to consider a very important piece of evidence before it. The learned appellate Court no doubt considered this document and rejected it, but the reasons given by him does not appear to be convincing. The Commissioner mainly relied upon the oral testimony of three witnesses who failed to prove their competency to speak on the matters of valuation. They spoke only about the character of the doba which, according to them, was shallow and filled with water hyacinth. The valuation suggested by the three witnesses for the Plaintiff was not in any way supported by any documentary evidence and should not as such have been accepted by the learned Commissioner. Two of the witnesses obviously did not reside near the place where the land is situated and in respect of one witness the Plaintiff was denied his right of cross-examination for which no reasons are recorded. The Plaintiff appears to have purchased this property in the year 1955 for a sum of Rs. 2,800 and odd and the Commissioner assessed the valuation of this share of the Plaintiff at Rs. 1,400 only for which basically he did not give cogent reasons. The Commissioner could have adopted a different test in the instant case, if no other suitable document was forthcoming in support of either parties'' contention, namely, the cost of filling up of the doba and after deducting the cost of filling up from the price of the adjoining bagan land of plot No. 7505, which was assessed by the Commissioner at Rs. 200 per cottah. In the absence of anything better to go by that would have been a better method for ascertaining the valuation of the doba in the instant case. In any event, I find that the valuation made by the Commissioner on the materials was improper and unreasonable and the appeal, accordingly, must be allowed and the case must be sent back to the trial Court for a fresh decision on the question of the valuation and for passing a proper decree and also for a direction for sale u/s 4 of the Partition Act in the light of the observations made above.

The appeal is accordingly allowed. The judgment and decree of the Courts below are set aside and the case is sent back to the trial Court for a fresh decision on the valuation and for passing a final decree as also for a direction for sale u/s 4 of the Partition Act in accordance with the direction contained in the judgment. Cost will abide the result.

Leave under Clause 15 of the Letters Patent is prayed for and is granted.