Mithilesh Thakur and Others vs Radha Devi and Others

Radha Mohan Prasad, J.—This appeal is directed against the judgment passed in Title Appeal No. 9 of 1997 by the 2nd Additional District Judge, Darbhanga, whereby he has partly allowed the appeal on contest against the Plaintiffs, who are the Appellants before this Court. It has been held that the Respondents-Appellants are entitled to buy the share of the Plaintiffs-Respondent 1st party on the valuation to be fixed by the learned Court below at the prevailing rate in the manner prescribed u/s 4 of the Partition Act (hereinafter referred to as the Act'').

According to the learned Counsel for the Appellants, the lower appellate Court has erred in law in partly allowing the appeal and reversing that part of the judgment of the trial Court whereby the claim of the Respondents u/s 4 of the Act was rejected. It is submitted that in the absence of formal application giving undertaking, the lower appellate Court is not legally justified in holding that the Respondent is entitled to buy the share of the Plaintiffs-Respondent 1st party on the valuation to be fixed by the Court below at prevailing rate in the manner prescribed u/s 4 of the Act. In support of this he placed reliance on the decision of the Apex Court in the case of R. Ramamurthi Iyer Vs. Raja V. Rajeswara Rao, and of this Court in the case of Harendra Nath Mukharjee Vs. Shyam Sunder Kuer and Others, and in the case of Lal Babu Sao and Another Vs. Ibnullah and Others, including the decision of the Apex Court in the case of Hurmat Bibi v. Probash Kumar Bajpayee, 1988 (Supp) SCC 507.

I am unable to accept the said submission of the learned Counsel for the Appellants. In none of the decisions, referred to above, the Court has held that there is mandatory requirement of making formal application u/s 4 of the Act. In all the cases, the Courts have been dealing with the circumstances and the occasion for filing of such application. There is no formal requirement u/s 4 that there should be separate application made. The only requirement u/s 4 of the Act is that if any member of the family being a shareholder shall give an undertaking to buy the share of such transferee, the Court will make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder.

The Supreme Court in the case of Hurmat Bibi v. Prodosh Kumar Bajpayee (supra), while dealing with object of Section 4 of the Act, in paragraph 9, has held that "... The object of Section 4 is to enable the members of a family to buy out a strange transferee from one of the members, who seeks partition of dwelling house. Section 4 was enacted having in mind the consideration of corporate property existing as a rule with special reference to joint property and social desire to preserve the unity of such property. It was also enacted with a view to maintain indivisibility and integrity of the property" and, thus, in the facts and circumstances, the Apex Court held that even if a family member co-sharer once fails to purchase snare of a strange transferee, a second application u/s 4 filed by the co-sharer or his successor-in-interest for purchase of such share is maintainable.

The lower appellate Court has fully considered about the undertaking given by the Respondents in paragraph 31 of the written statement and, in my opinion, has rightly come to the conclusion that in paragraph 31 of her written statement, the Respondent-Appellant has given such undertaking and as such, she has substantially complied with the requirement of Section 4 of the Act.

This Court, thus, does not find any infirmity in the impugned judgment much less involving substantial question of law warranting interference in the second appeal.

The appeal is, thus, dismissed in limine.