Sri Muthangi Butchi Ramayya vs Gurrala Venkata Subbarao and Others

Raghava Rao, J.—The appellant before me was the sixth defendant in the original suit which was laid for recovery of a one-tenth share out

of a two-third share of a, whole property of the other one-third of which the sixth defendant had become owner by virtue of a Court auction

purchase of the interest of one Krishna Rao a member of the family of the plaintiff and the other defendants to the present suit, by the sixth

defendant himself as his execution creditor. After the purchase, the sixth defendant in fact filed his own suit for partition and recovery of his one-

third share in the right of Krishna Rao and before the final decree in that suit was actually passed, defendants 1 to 5 in the present suit, of whom the

second defendant is the father of the plaintiff in the present suit, applied to buy up the share of the present sixth defendant who was the plaintiff in

the former suit, under the provision of Section 4 of the Partition Act. Defendants 1 to 5 in fact were given the chance to buy up the share in

accordance with the provision 0f that section of the Act, but, they did not avail themselves of it. The present plaintiff who is the respondent before

me, claims that he is entitled to assert his own right to buy up the share of the present sixth defendant by force of the provision of Section 4 of the

Act which, according to him, confers upon him an individual right of his own irrespective of the rights of his father the second defendant or of the

other members of his branch of the family who were parties to the former action.

This claim of the plaintiff is answered by the sixth defendant in a two-fold way; firstly, by saying that there is no individual right as is sought to be

asserted by the plaintiff who must be held bound by the conduct of his father, the second defendant, who actually along with his brothers did not

avail himself of the right given by the decree in the former suit u/s 4 of the Partition Act and, secondly, by saying that the present suit is not within

the purview of Section 4 of the Partition Act and that consequently there is no right such as is claimed by the plaintiff which can be asserted by him.

The learned District Munsif who tried the suit gave effect to both the pleas which were made by the sixth defendant and accordingly dismissed the

suit as against him. On appeal taken to the Subordinate Judge he rejected both the pleas and decreed the suit.

Both the points taken in the original suit by the sixth defendant are repeated here by his learned Counsel; but, it is not necessary for me to deal

with the first of them, as on the second I have come to the distinct conclusion that the plaintiff-respondent must fail. The view that I take of the

section is that there must be a suit at the instance of a transferee of a share of a dwelling-house for partition and then, if any member of the family

being himself a share-holder in respect of the dwelling-house, undertakes to buy the share of the transferee-plaintiff the Court shall make a

valuation of such share in such manner as it thinks fit and direct the sale of such share to such share-holder. This is the view which necessarily

follows on the language of the section, and, if effect were given to the language, as indeed has been done in a Bombay case reported in Khanderao

Dattatraya v. Balakrishna Makadev ILR (1921)46 Bom. 341, there is no doubt but that this appeal must succeed and the plaintiff must fail as there

is no suit by a stranger-purchaser of a share here and now. It is said, however, by Mr. Suryanarayana the learned Counsel for the respondents,

that there are two other decisions, one of the Calcutta High Court and the other of the Nagpur High Court, reported respectively in Satyabhama

De Vs. Jatindra Mohan Deb and Others, , and AIR 1937 4 (Nagpur) which support what has been described in the latter of the two decisions as

a more liberal interpretation of the section on which he is placing reliance. I have examined the two decisions and I do not think that they afford any

real assistance to the learned Counsel for the respondents with reference to the contention that he has advanced, namely, that although there is no

suit now and here by a stranger-transferee of a share, his client may be allowed to buy up the sixth defendant''s share on the spirit, if not on the

letter of the section. Even without deciding that a more liberal construction of the section is permissible than is warranted by its letter as virtually

held in those cases, I am still of opinion that the present case can well be distinguished from them on the facts. In fact, neither of the cases actually

dissents from the case in Khanderao Dattatraya v. Balakrishna Makadev ILR (1921)46 Bom. 341. The Nagpur case makes no reference at all to

the Bombay case while the Calcutta case which refers to it does not disapprove of it but only distinguishes it. In both the cases there is one peculiar

feature which distinguishes them from the case before me, viz., that the stranger-transferee happened in those cases himself to apply for partition

with the result that it became open to the Court notionally and virtually to regard him as plaintiff and thereafter to regard the original plaintiff as

himself or herself entitled to ask for the relief u/s 4 on the basis that there was a suit in the eye of law by the stranger-transferee himself for a

partition. I am not sure that this sort of strain put upon the situation in those crases was rightly put. It is hardly necessary for me however to

pronounce on the exact soundness in this respect of the two cases which, as I have pointed out, are on the view of facts taken therein

distinguishable. The case before me does not accordingly attract the Calcutta or the Nagpur case., I may state however that the view of law taken

by the learned Chief Justice in the Bombay case seems to my mind, if I may say so with respect, to be the only sound view possible, which

accords with the spirit as well as the letter of the section and which, unlike the view taken in the Nagpur and Calcutta cases does not extend the

spirit of the section beyond its letter. The equity of the statute, as it is sometimes called cannot override its plain language and the contention of the

respondents'' learned Counsel must accordingly be repelled.

In these circumstances, I have no hesitation in reversing the judgment and decree of the lower appellate Court on the basis of my decision on the

point which I have dealt with, and in allowing the Civil Miscellaneous Appeal and restoring the decree of the trial Court with costs to the appellant

throughout.

No leave.