Mohamed Hanifa vs Abdul Latheef Sahib and Others

Sengottuvelan, J.—On a reference by Swamikkannu, JL, this second appeal is posted before us for an authoritative pronouncement

regarding the interpretation of Section 4 of the Partition Act, hereinafter referred to as the Act. As formulated by the learned Judge, the questions

for determination in this second appeal are:

Whether an application u/s 4 of the Partition Act (Act 4 of 1893) can be filed at the time of pendency of a second appeal which itself is against a

final decree,

When the respondents in the second appeal raise an objection under Clause 5 of Section 100, C.P.C., can the application u/s 4 of the Partition

Act be entertained without deciding the objections of the respondents?

If the said application is maintainable during the pendency of the second appeal against the final decree, whether the said application has to be

disposed of first, before actually determining the second appeal itself?

The facts of the case are briefly as follows : The entire suit property originally belonged to one Ahamed Ghouse. He died leaving behind him two

sons and two daughters. Two sons are defendants 1 and 2, respondents 1 and 2 and one of the daughters is the third defendant-third respondent

and another daughter is one Sultan Bi. The appellant herein purchased the 1/6th share of Sultan Bi in the house and on the strength of such sale,

filed O.S. No. 794 of 1973 for partition, and separate possession of his 1/6th share. On behalf of the respondents, several contentions were raised

relating to the divisibility as well as application of the provisions of the Act.

The trial court, after considering the case of both parties, passed a preliminary decree in favour of the appellant for partition and separate

possession of his 1/6th share in the suit house. The said judgment and decree of the trial court were confirmed by the Subordinate Judge,

Chidambaram in A.S. No. 50 of 1978. Questioning the legality and correctness of that judgment, this second appeal is filed.

The appellant herein also filed C.M.P. No. 16562 of 1983 u/s 4 of the Partition Act (Act 4 of 1893) read with Section 151, C.P.C. directing

the first respondent in the appeal to sell his 1/6th share in the property at such price the court may determine u/s 4 of the Partition Act.

On the basis of the questions of law formulated by Swamikkannu, J., the main point for determination is whether the provisions contained in

Section 4 of the Act can be filed before the final decree becomes conclusive. u/s 4 of the Act, where a share of any 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, then the other

members have a pre-emptive right to have such a share sold to them in a partition action, Section 4 reads as follows:

(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 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 sale of such share to such shareholder, and may give all

necessary and proper directions in that behalf.

(2) If in any case described in Sub-section (1) two or more members of the family being such share-holders severally undertake to buy such share,

the court shall follow the procedure prescribed by Sub-section (2) of the last foregoing section.

The only question to be considered is so far as the right available to the members of a family against the purchaser of his fractional share to have

the same sold to them, whether Section 4 of the Act gives an absolute right to the members of the family. Then the question that arises for

determination is the point of time within which such a right is to be exercised. In this case, though there is a plea in the written statement stating that

the Partition Act should be applied, yet, no issue had been framed by the trial court. The lower appellate Court also did not bestow any attention

to this plea. In the final decree application for appointment of a Commissioner to divide the suit property into six shares equally, in the counter

statement it is stated that the appellant is entitled to a right of pre-emption. But either during the preliminary decree proceedings or during the final

decree proceedings, the appellant has not filed an application for direction to direct the first respondent to sell his 1/6th share in the property.

Realising, the lacune in the matter the appellant has filed the present application No. 16562 of 1983 u/s 4 of the Act.

The main contention urged on behalf of the respondents is that the application is belated and at the same time cannot be filed at this stage, since

the partition decree had become final. On the basis of the question of law formulated on the facts of this case, the main point for determination is

whether an application u/s 4 of the Partition Act, can be filed before the final decree becomes conclusive, even at the stage of second appeal.

On behalf of the appellant, reliance is placed on the decision reported in Birendra Nath Banerjee Vs. Sm. Snehalata Devi and Another, . A

Division Bench of the Calcutta High Court observed as follows:

It is well-settled now that an application for pre-emption u/s 4 of the Partition Act can be made at any stage, while the suit is pending. There has,

no doubt, been a final decree passed in the instant case by the learned trial Judge, but that decree is under appeal to this Court and the matter is

sub judice. The suit, therefore must be held to be pending and during its pendency, the above application has been filed. The objection to the said

application, therefore, on the first of the above two grounds, cannot be accepted.

The same view was taken in Abdul Sathar Vs. A. Nawab, , wherein Ratnam, J., has held that application u/s 4 of the Partition Act can be

granted even in the second appeal stage.

In the case reported in Sennammal Vs. K. Natarajan and Others, , Ananthanarayanan, O.C.J. (as he then was) has taken the view that the

application for relief u/s 4 of the Partition Act can be granted even in the second appeal stage.

Similar question arose in the proceedings u/s 9 of the Tamil Nadu City Tenants Protection Act, where also pre-emption right is given to the

owner of the superstructure to purchase the land. In coining to a conclusion with reference to the stage at which such an, application is to be filed,

the following observation has been made in the case reported in S. Ramanujam and Others Vs. M.E. Manicka Mudaliar, .

Under these circumstances, we are clearly of the opinion that the law laid down by a Bench of this Court is that the pendency of a first appeal or

second appeal will be tantamount to the pendency of the suit itself and consequently persons like the appellants herein would be entitled to file an

application u/s 9 of the Act in the said first appeal or second appeal, provided they satisfied the other statutory requirements....

In view of the above pronouncements, it is clear that the pendency of the second appeal will be tantamount to the suit being pending and an

application u/s 4 of the Act can be filed before the suit is finally concluded. Since in this case, application u/s 4 of the Act is filed when the second

appeal is pending the petitioner, viz., the appellant herein, is entitled to enforce the provisions contained in Section 4 of the Act.

On behalf of the respondents, it is contended that in view of the amendment to Section 100, C.P.C. appeal can be filed only on the substantial

question of law and such an appeal can be heard only on the questions of law so formulated and the appellant will not be allowed to argue what do

not relate to the questions of law formulated. In short, the argument is that since the application of Partition Act is not the question of law that had

been formulated, the appellant is debarred from contending that he is entitled to enforce the benefits under the Partition Act. But Section 4 of the

Act gives rise to separate proceedings by means of application, apart from the second appeal. It is a statutory right given to the family members

and it is open to them to exercise the same at any time before the partition decree becomes conclusive. In this case, in view of the pendency of the

second appeal, the matter is not concluded and as such the appellant has got every right to file an application u/s 4 of the Act, which he did in this

case. In view of the principles laid down in the above decisions, the matter is not yet concluded and as such the appellant is entitled to file an

application u/s 4 of the Act. Accordingly our answers to the questions formulated are as follows:

(1) Application u/s 4 of the Partition Act can be filed at any time before the final decree becomes conclusive, even during the stage of second

appeal.

(2)The provisions contained in Section 100, C.P.C., are not applicable to application u/s 4 of the Partition Act, since the cause of action for

Section 4 application is entirely different and is based upon the provisions of the Act,

(3) Application u/s 4 of the Act will have to be decided before concluding the shares between the parties.

On a reading of the Commissioner''s report and the objections thereon, it is seen that the objection has been taken even for the manner of

division filed by the appellant, the Commissioner had divided the property in such a way that enjoyment is well-nigh impossible in view of the

narrow width given to his share. According to the plan, the width of each sharer comes to 6"" � 8"" and such a division will only make the entire

property useless. In this view of the matter also, the mode of division will have to be thought of by which the, utility of the property is not in any

way hampered. Hence the final decree passed by the trial court will, have to be set aside and the matter remitted back to the trial court for fresh

disposal. Mr. Vanchinathan states that if the purchaser can be allotted a share which is not in any way inconvenient to the members of the other

sharers in the house, then the same may be considered provided the other sharers are willing for such a course.

In the result, the judgment and decree of both the courts below are set aside and the matter is remitted back to the trial Court for fresh disposal

in the light of the observations made above. The trial Court will also take on file the application filed by the appellant u/s 4 of the Partition Act and

dispose of the same in accordance with law and in the light of the observations made above. There Will be no order as to costs.