Subal Chandra Modak vs Gostha Behari Das

Mookerjee, J.—Six items of properties, which are the subject matter of a suit for partition, out of which this appeal arises, originally belonged to an undivided Hindu family. The Plaintiff Respondent, a stranger to that family, had purchased 1/4th share from one of co-sharers. The preliminary partition decree was duly passed. The Defendant No.1 who is the Appellant in this Court filed an application u/s 4 of the Partition Act claiming that all the items of properties included in the Schedule to the Plaint were part and parcel of the dwelling house of the family and he should be given an opportunity to purchase the share which had been acquired by the Plaintiff. The learned Subordinate Judge has found that five of these six items attract the operation of Section 4 of the Partition Act. C.S. Dag No.1024 which is described as a garden has been found not to be a part of the dwelling house. The learned Subordinate Judge has further directed that the entire plot C.S. Dag No.1024 might be allotted in favour of the Plaintiff and the value thereof adjusted as against the Plaintiff''s share in the other properties, including the dwelling house.

Subal Chandra Modak, Defendant No.1, has appealed to this Court. Two points have been taken before us on behalf of the Defendant Appellant.

It is contended in the first place that C.S. Dag No.1024 should have been considered to be a part of the dwelling house attracting the operation of Section 4 of the Partition Act.

No doubt, the term "dwelling house" embraces not merely a structure or building, but includes also adjacent buildings, cartilage, garden, courtyard, orchard and all that is necessary for the convenient occupation of the house, but not that which is only for the personal use and convenience of the occupier [Kshirode Chandra Ghosal v. Sarada Prosad Mira (12 CLJ 525)]. It is now also well settled that whether a particular plot adjacent to a dwelling house is or is not necessary for the enjoyment of such use is to be determined on the evidence which may be adduced in each particular case.

From the materials on the record, it is evident that C.S. Dag No.1024 is detached from the dwelling house by a broad Municipal road which is shown in the Commissioner''s Map to be 26 ft. wide. The evidence as adduced by the Defendant also falls short of what is required to show that this garden is an essential part of the dwelling house. The lower Court has already allowed a tank and some garden lands as component parts of the dwelling house. It cannot be shown from the evidence that C.S. Das No.1024 had ever been required for the convenient and beneficial use of the dwelling house. The decision by the trial Court excluding C.S. Das No.1024 from the operation of Section 4 of the Partition Act must accordingly be upheld.

The other point urged on behalf of the Defendant Appellant relates to the direction given by the learned Subordinate Judge in his order dated 31st March 1951 that the entire plot covered by C.S. Dag No.1024 must be allotted by the Commissioner in favour of the atranger Plaintiff. The learned Subordinate Judge observed:

"The Commissioner will also determine the valuation of plot No.1024 and will allow the entire plot to the Plaintiff by way of compensation and if the value of this plot as determined be less than the value of the aforesaid plots (which have been held not to be partible) the deficit will be paid by the Defendant to the Plaintiff. The Commissioner who will be appointed to effect partition will comply with this direction."

The learned Subordinate Judge purported to apply what he thought to be the principle enunciated in Satyabhama v. Jatindra Mohan Deb (49 CLJ 136 at page 149). The learned Judge was, in our view, not correct in assuming that any principle had been enunciated in that decision.

If we refer to the facts in Satyabhama v. Jatindra Mohan (Supra) it will appear that there were certain peculiar circumstances. In that case a suit was filed by some strangers to the joint family for partition of the share acquired by them. Defendant No.9 was one of the original co-sharers and Defendant No.10 her husband. Defendants No.14 to 19 were another set of stranger purchasers. The Plaintiffs had made a specific prayer in the Plaint to the effect that if they were not allowed any allotment in the dwelling house they might be allowed a proportionate parcel of the agricultural lands in lieu of their share in the dwelling house. Defendant No.9 had not appeared at the earlier stages of the suit. Defendant No.10 raised entertain objections. Defendant Nos.14 to 19 prayed for a separate allotment for themselves. A preliminary decree was passed by the Court directing inter alia that the Plaintiffs should not get any share in the dwelling house but that they would get an allotment from out of the other lands compensating the value of the share they had purchased in the entire property. After the preliminary decree a final decree was also passed. Thereafter one of the Defendants was successful in having the final decree set aside. Before a fresh final decree could be passed Defendant No.9 filed an application u/s 4 of the Partition Act. She prayed for being permitted to purchase the share of the two sets of stranger purchasers, namely the Plaintiffs and Defendants 14 to 19, in the dwelling house. The trial Court allowed the application u/s 4 of the Partition Act and directed that the defendant co-sharer should be permitted to purchase the shares of both sets viz., of the plaintiff and defendants Nos.14 to 19. Appeal was filed by the plaintiff and the defendants 14 to 19 and the learned District Judge dismissed the appeal so far as it related to the plaintiff''s share but allowed the appeal in respect of the shares of defendants 14 to 19. From the decree of the District Judge two appeals were brought to this Court; one by the plaintiff against the order for sale of his share of the dwelling house and another by defendant No.9 against the order dismissing her prayer to purchase the shares of defendants 14 to 19. This Court allowed the plaintiff''s appeal and held that defendant No.9 was not entitled to claim any relief against the plaintiff u/s 4 of the Partition Act. We have not before us the of this Court so far as this portion of the decision is concerned. That judgment has not been reported and is also not available from the record room of this Court as the records were transferred to Pakistan after 1947.

The judgment as reported in 49 CLJ 136 deals only with the appeal by defendant No.9 as against defendants 14 to 19. This Court came to the conclusion that defendant No.9 was entitled to claim relief against these defendants u/s 4 of the Partition Act. Defendants 14 to 19 had applied before the passing of the preliminary decree for a separate allotment so far as their share was concerned, and they were treated by this Court as suing for the partition of the dwelling house and to be in the same category as the plaintiff.

From the statement of facts in that case it will immediately appear that in the preliminary decree the Court had given direction that the plaintiff would not get any share in the dwelling house but would get the value of the share they had purchased out of the lands, other than the dwelling house. Defendants 14 to 19 were treated by this Court as suing for the partition of the dwelling house and to occupy the same position as the plaintiff. They were therefore entitled under the preliminary decree to the directions which had been given by the Court at that initial stage. No appeal having been preferred by either of the parties against the preliminary decree, that decree was binding on all the parties and on the Court which would pass the final decree. It is for this reason that this Court had given in that case the following direction about the future allotment:

"In the final decree which is to be passed in this case a direction may be given that the respondents'' share in the joint properties may be allotted to them out of the lands other than the dwelling house; and if it is not entirely covered by such allotment the members of the undivided family may be directed to compensate them for the deficiency".

This Court was not in that case formulating any general principles or laying down the limits of the powers of the Court while dealing with an application u/s 4 of the Partition Act. In view of the directions given in the preliminary decree this Court repeated the directions to suit the changed circumstances, some of the defendants being considered to occupy the same position as the plaintiffs.

The decision of Satyabhama v. Jatindra Mohan, (49 CLJ 136), cannot therefore be considered to be an authority for the general proposition that while dealing with an application u/s 4 of the Partition Act the Court should or be competent to give a direction about the future partition of properties other than the dwelling house. The Court was not called upon to decide and had not decided the jurisdiction of the Court to give a direction in the form in which it was given while dealing with an application u/s 4 of the Partition Act.

We have, therefore, to consider the implications of the provisions contained in Section 4 of the Partition Act and to ascertain whether such a direction can be given by the Court at this stage.

Sub-section 1 of Section 4 of the Partition Act provides that "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 shareholder shall undertake to buy the share of such transferee, make valuation of such share in such a 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".

The point for decision which comes up before the Court at that stage, when an application is made by a co-sharer u/s 4(1) of the Partition Act is first to ascertain whether the property in question is dwelling house; and, if the answer is in the affirmative, to proceed to value the share in such dwelling house which is held by the stranger. The Court is then to require the co-sharer who was a member of the undivided family to deposit the amount within a date to be fixed by the Court. If such deposit is made, then the Court is to require transfer of the stranger''s share in the dwelling house to the co-sharer. If the deposit as required to be made is not so done, the petition made u/s 4 of the Partition Act fails and the Court takes necessary steps for partitioning the entire property including the dwelling house.

When an application u/s 4 of the Partition Act comes up for consideration the jurisdiction of the Court is limited to questions relating to the rights of the co-sharers of the original undivided family to compel the stranger transferee to sell to the former the portion of the dwelling house purchased by the latter. As was pointed out in Boto Krishna Ghose Vs. Akhoy Kumar Ghose and Others, so long as the dwelling house has not been completely alienated to a stranger the actual position is that it is still an undivided family house and the possession and enjoyment of which are conferred on the members of the family, the stranger transferred being debared u/s 44 of the Transfer of Property Act from exercising his right to joint possession which is one of the main incidents of co-ownership of property. The Courts have not hesitated to put a liberal construction upon the Partition Act and to interpret its provisions in such a way as would promote and fulfil the object of the Partition Act which is to preserve the integrity of the family dwelling house and to enable the members of the family to keep it for themselves as far as possible.

The Court is not at this stage considering as to what direction should be given to the Commissioner for the final decree for complete partition of all the items of joint property. Giving a direction as regards one or of the properties, other than the dwelling house, will be dealing with a part of the case which is not before the Court at that time.

There is another aspect of the question to which also reference may be made. While dealing with the application u/s 4 of the Partition Act the Court is required to value the stranger''s share in the dwelling house. The stranger is compelled to transfer that share for the amount so fixed. How is this valuation to be made?

The position is somewhat analogous to the one when a property cannot be reasonably or conveniently allotted to all the parties and one or more of the shareholders may apply to the Court u/s 3 of the Partition Act for leave to purchase the same at a price which may be ascertained by the Court. When the property is to be sold u/s 3 of the Partition Act at a valuation to be fixed by the Court the method of assessing the value is different from the method adopted for determining the valuation for allotting shares to the different parties. In the case of a sale to an outsider u/s 2 of the Partition Act the valuation is fixed only for the purpose of having a reserve price above which outsiders would be required to bid. In the case of a sale u/s 3 of the Partition Act the co-sharers applicants become entitled to get the property at the valuation fixed by the Court. As was observed inNitish Chandra Ghose v. Promode Kumar Ghose, Nitish Chandra and Another Vs. Promode Kumar and Others, that requires

"a very careful decision by the Court as the interest of all the co-sharers must be borne in mind in fixing such a price for the purpose of Section 3".

While fixing a valuation after an application is made u/s 4 of the Partition Act the valuation is to be fixed on the proper market value. Such valuation is to be fair both to the stranger purchaser and also to the co-sharers of the erstwhile undivided joint family. The sale by the stranger to the co-sharer is a forced sale and therefore such valuation is to be fixed with great care and precision.

When a Commissioner for Partition makes allotments to different co-sharers and for that purpose values a particular property he fixes relative values of the different shares as allotted to different parties; it is not really a case of a forced sale by one party to another.

The direction given by the learned Subordinate Judge about an item of property, which was not the subject matter of the application u/s 4 of the Partition Act, cannot stand.

The proper order therefore will be to expunge that direction in the judgment of the Court below. The Court is not now to make any observation about the allotment in respect of the C.S. Dag No.1024.

The limited direction to be given now is to ascertain, after hearing the parties on the Commissioner''s Report the value only of the Plaintiff''s share in the dwelling house which is proposed to be purchased by the Defendant. A date is thereafter to be fixed within which the Defendant Petitioner is to deposit the amount as may be ascertained by the Court on the report of the Commissioner. If the amount is so paid a conveyance is to be executed by the Plaintiff in favour of the Defendant. On the deposit being made by the Defendant the Court will issue necessary directions to the Commissioner for effecting partition of the remaining item of joint property. As to how that plot is to be partitioned will be decided at the stage when the Commissioner of Partition submits his final report and the Court proceeds to consider the same. In what manner C.S. Dag No.1024 is to be partitioned at that stage is a matter on which we do not express any opinion.

The result, therefore, is that this appeal is allowed in part and the direction given by the learned Subordinate Judge about the partition of C.S. Plot No.1024 is to be deleted and the case is to be dealt with in accordance with the directions given in this judgment.

As success is divided, party will bear their respective costs in this Court.

No order is necessary on the application.

P.K. Sarkar, J.

I agree.