Lal Babu Sao and Another vs Ibnullah and Others

Lalit Mohan Sharma and S.S. Hasan, JJ.—The question involved in this case, referred to a Division Bench for hearing, relates to the interpretation of Section 4(1) of the Partition Act 1893, in the following circumstances. In January, 1970, the petitioners, who had purchased a share in the suit property, which is a dwelling house, filed a suit for partition. A decree was passed in 1975 and on the 15th April, 1976, the defendant No. 1 a co-sharer in the house, filed an application u/s 4(1) of the Partition Act which is in the following terms:--

Where a share of 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 share in such sale of such share to such share holder, and may give all necessary and proper directions in that behalf. It is not disputed that the house in salt is the residential house of the defendant No. 1 and the other members of his family some of whom sold their share to the petitioners strangers to the family. Since the defendant No. 1 exercised his right of purchasing the share of the plaintiffs, the court below proceeded to fix the valuation of the said share, as on the 17th January, 1970, the date of the institution of the suit. By this revision application the petitioners contend that the correct date with reference to which the valuation has to be determined is the 15th April, 1976, the date on which the defendant No. 1 applied before the court.

It is not suggested that the application in the court below was not maintainable on account of late filing. An application u/s 4(1) can be filed at any stage before possession of the portions given to the parties (see Harendra Nath Mukharjee Vs. Shyam Sunder Kuer and Others, ).

On behalf of the petitioners reliance has been placed on the case of (1) Lal Kejriwal and Others Vs. Bhawanath Jha, ) decided by a learned Single Judge of this Court holding that the relevant date with respect to which the valuation has to be assessed is the date on which the application is filed. The learned counsel for the opposite party said that since this decision needed reconsideration; the learned Single Judge, who earlier heard the present revision application, has referred the matter to Division Bench. He has relied upon the cases of (2) Bhikari Behera Vs. Dharmananda Natia and Others, and (3) AIR 1952 193 (Nagpur) . In Lal Kejriwal''s case the decision of the Calcutta High Court reported in 1971 (75) CWN 185 was followed. It is true that no reasons were given in these cases in support of the view taken; but on a consideration of the language of the section and the object for which it has been enacted, we are of the view that it was correctly decided that the relevant date with respect to which the market value of the share should be fixed, is the date on which the application u/s 4(1) of the Act is made. It will be observed by reference to the language of Section 4(1) quoted above, that, the right of a co-sharer to purchase the share of a transferee is optional. He may choose to get the residential house partitioned by metes and bounds permitting the purchaser co-sharer to take possession of his share, or he may elect to purchase his share, by filing an application. Until such an application is filed, no necessity for determining the market value of the transferred share arises. The assessment of the price being occasioned by and dependant on the filing of the application, the date with respect to which the value has to be fixed, must be held to be the date on which the application is filed. In none of the Orissa or Nagpur cases, relied upon by the opposite party, this question arose for decision. There, one party said that the value should be fixed in accordance with consideration money for which the transfer took place, and the other side asserted that the market value as on the date of institution of the suit should be fixed. They are, therefore, not helpful for the decision of the point) now under consideration.

Mr. Hussain appearing for the opposite party, next contended that in view of the observations made towards the end of paragraph 6 of the judgment in Lal Kejriwal''s case, it should be held that the High Court has no jurisdiction to interfere with the order of the court below u/s 115 of the Code of Civil Procedure. We do not agree. The court by refusing to fix the valuation as obtaining in 1976 has failed to exercise its jurisdiction vested in it by law and by fixing the valuation with respect to the date of institution of the suit in 1970, it has exercised jurisdiction not tested in it. In any view, the court must be held to have exercised its jurisdiction with material irregularity, by choosing a wrong date, which prejudices the petitioners. We hold that the High Court has ample authority to interfere with the impugned order in its revisional jurisdiction. We, accordingly, allow this revision application, set aside the order passed by the court below and remand the case for reconsideration. The learned counsel jointly state that their respective clients would appear in the court below on the 7th May, 1979 with their evidence. In that view of the matter, the court shall not direct fresh service of notice on the parties before us, for the purpose of further proceeding with the case.