V. Govindaswamy vs Mangammal and Others

S. Tamilvanan, J.—Challenging the order and decretal order, dated 21-10-2008 passed in I. A. No. 18017 of 2003 in O. S. No. 4818 of

1994 on the file of the XIV Assistant Judge, City Civil court, Chennai, this Revision has been preferred.

The revision Petitioner is the Plaintiff in the suit. The suit was filed by the Petitioner/Plaintiff, seeking for a judgment and Decree, declaring that

the Plaintiff is entitled to l/6th share in the suit property and to appoint an Advocate-Commissioner to divide and allot the l/6th share to the Plaintiff.

If it is not capable of division, direct the Advocate-Commissioner, so appointed to sell the plaint schedule property and to pay l/6th share of the

sale proceeds to the Petitioner/Plaintiff.

Subsequently, the Interlocutory Application in I. A. No. 18017 of 2003 was filed by the Petitioner/Plaintiff, under Sections 3 and 4 of Partition

Act, 1893, whereby the Petitioner/Plaintiff sought a direction to fix the value of 5/6th share of the Respondents/Defendants of the suit property and

sell the same for the sum so ascertained or alternatively direct the Respondents to sell their 5/6th share of the suit property in favour of the

Petitioner/Plaintiff at Rs. 4.5 lakhs.

By the impugned order, the application filed by the Petitioner/Plaintiff was dismissed by the Court below. Aggrieved by which, this Civil

Revision Petition has been filed.

Learned Counsel appearing for the Petitioner submitted that the Petitioner is entitled to l/6th share and the Respondents/Defendants are only

subsequent purchasers of 5/6th share in the plaint schedule property, hence, the Petitioner is entitled to purchase 5/6th share, being a co-sharer of

the undivided property, as per Section 44 of the Transfer of Property Act. According to the learned Counsel for the Petitioner, the Court below

has not considered the scope of Section 44 of the Transfer of Property Act properly and further contended that the relief u/s 4 of the Partition Act

is available to the Petitioner, being a co-sharer, however, the Interlocutory Application filed by him was dismissed. In support of his contention, the

learned Counsel appearing for the Petitioner cited the following decisions:

Gyan Chand and Another Vs. Sumat Rani and Others, .

Ramaswami v. Subramania AIR 1967 Mad 156.

Harendra Nath Mukharjee Vs. Shyam Sunder Kuer and Others, .

Ghantesher Ghosh Vs. Madan Mohan Ghosh and Others, .

Babulal Vs. Habibnoor Khan (Dead) by LRs. and Others, .

Sennammal v. Natarajan AIR 1967 Mad 76.

Alekha v. Jagabandhu AIR 1971 Ori 127.

Per contra, Mr. J. R. K. Bhavanantham, learned Counsel appearing for the eighth Respondent/purchaser submitted that the revision petition filed

by the Petitioner/Plaintiff is not legally maintainable and according to him, there is no legal cause of action for filing the suit. In support of his

contention, the learned Counsel for the Respondents cited the following decisions:

Gautam Paul v. Debi Rani Paul AIR 2001 SC 61.

Gyan Chand and Another Vs. Sumat Rani and Others, .

In Gyan Chand and Another Vs. Sumat Rani and Others, , Hon''ble Supreme Court has held that a right of co-sharer u/s 4 of the Partition Act,

is available only if the transferee files a suit for partition. Relying on the decision, Gautam Paul Vs. Debi Rani Paul and Others, , the Hon''ble Apex

Court has held as follows:

This Court in the above said case reversing the view taken by the Calcutta, Patna, Nagpur and Orissa High Courts, has held that so long as the

stranger purchaser does not seek actual division and possession either in the suit or in executing proceedings, a co-sharer cannot in a suit, brought

for partition by him or by another co-sharer, exercise the right u/s 4 of the Partition Act. In other words, the said right of a co-sharer u/s 4 of the

Partition Act will be available only if a transferee files a suit for partition.

In Ramaswami v. Subramania reported in AIR 1967 Madras 156, this Court has held that a stranger-transferee though Defendant in suit for

partition, can be considered as one who sues for partition, if he claims his share in suit and prays for allotment thereof. Co-sharer can buy off such

transferee u/s 4 of the Partition Act, 1893. Learned single Judge of this Court relying on various earlier decisions held that it would be open to a

sharer in the family to buy other shares under the provisions of Section 4 of the Partition Act, 1893.

A Division Bench of Patna High Court in Harendra Nath Mukharjee Vs. Shyam Sunder Kuer and Others, , has held that the family continues to

be undivided qua dwelling house till possession is delivered to the members of the family in execution of the final decree for partition and as such,

the application u/s 4 is maintainable after passing of the final decree and before the possession of the dwelling house in question is delivered to the

stranger transferee.

However, in Babulal Vs. Habibnoor Khan (Dead) by LRs. and Others, , the Hon''ble Apex Court held that application by members of family

to purchase stranger''s share u/s 4 of the Partition Act (4 of 1893) is maintainable, only if stranger outsider moves for getting partition and separate

possession of his share.

In the decision, Gautam Paul v. Debi Rani Paul reported in AIR 2001 SC 61, it has been categorically held by the Hon''ble Apex Court that

right of family member to pre-empt share purchased by stranger is available u/s 4 of the Partition Act, only when the stranger sues for partition.

In Gautam Paul Vs. Debi Rani Paul and Others, , the Hon''ble Supreme Court has held as follows:

There is no law which provides that co-sharer must only sell his/her share to another co-sharer. Thus strangers/outsiders can purchase shares even

in a dwelling house. Section 44 of the Transfer of Property Act provides that the transferee of a share of a dwelling house, if he/she is not a

member of that family, gets no right to joint possession or common enjoyment of the house. Section 44 adequately protects the family members

against intrusion by an outsiders into the dwelling house. The only manner in which an outsider can get possession is to sue for possession and

claim separation of his share. In that case, Section 4 of the Partition Act comes into play. Except for Section 4 of the Partition Act there is no other

law which provides a right to a co-sharer to purchase the share sold to an outsider. Thus before the right of pre-emption u/s 4 is exercised, the

conditions laid down therein have to be complied with. As seen above, one of the conditions is that the outsider must sue for partition. Section 4

does not provide the co-sharer a right to pre-empt where the stranger/outsider does nothing after purchasing the share. In other words, Section 4

is not giving a right to a co-sharer to pre-empt and purchase the share sold to an outsider anytime he/she wants. Thus even though a liberal

interpretation may be given, the interpretation cannot be one which gives a right which the legislatures clearly did not intended to confer. The

legislature was aware that a partition suit would result in a decree for partition"". The legislature only provided for such right when the ""transferee

sues for partition"". The intention of the legislature is clear. There had to be initiation of proceedings or the making of a claim to partition by the

stranger/outsider. This could be by way of initiating a proceeding for partition or even claiming partition in execution. However, a mere assertion of

a claim to a share without demanding separation and possession (by the outsider) is not enough to give to the other co-sharers a right of pre-

emption. There is a difference between a mere assertion that he has a share and claiming for possession of that share. So long as the stranger-

purchaser does not seek actual division and possession, either in the suit or in execution proceedings, it cannot be said that he has sued for

partition.

It is an admitted fact that the 8th Respondent, R. Malarvizhi purchased 5/6th share in the suit property. Only the Petitioner herein filed the suit

in O. S. No. 4818 of 1994 on the file of the Court below, seeking partition of his l/6th share and allot the said share to him and further, he has

specifically stated that if the premises is not capable to division, direct the Advocate-Commissioner to sell the plaint schedule property and pay

1/6th share out of the sale proceeds to the Petitioner/Plaintiff.

As contended by the learned Counsel appearing for the eight Respondent, subsequent purchaser, the relief sought for by the Petitioner/Plaintiff

is for partition of l/6th share as co-sharer of the property and the alternate relief sought for by the Petitioner/Plaintiff is to sell the schedule of

property by appointing an Advocate Commissioner, if it is not capable of division and pay l/6th share to the Petitioner, out of the sale proceeds.

Contrary to the said main relief sought for in the suit, the Petitioner has filed the Interlocutory Application relating to the revision petition, wherein,

the relief sought for is to"" fix the value of 5/6th share of the Respondents/Defendants and direct them to sell the same for the sum, so ascertained or

alternatively he may be permitted to pay a sale price Rs. 4.5 lakhs to the Petitioners to purchase 5/6th share of the suit property from the 8th

Respondent.

It has been categorically held by the Hon''ble Apex Court that there is no law which would say that a co-sharer must sell his/her share only to

other co-sharer. Hence, a stranger/outsiders can also purchase shares even in a dwelling house, though Section 44 of the Transfer of Property Act,

adequately protects the family members against intrusion by an outsiders into the dwelling house.

As held by the Hon''ble Supreme Court in Babulal Vs. Habibnoor Khan (Dead) by LRs. and Others, , the Application filed by the Petitioner

herein being a co-sharer or a member of the family to purchase the stranger''s share is maintainable, only if the stranger or outsiders moves for .

getting partition and separate possession of his share, as per Section 4 of Partition Act (4 of 1893).

In the instant case, the suit was admittedly filed by the Petitioner/Plaintiff a co-sharer having l/6th share in the property for partition and the

consequential prayer is to sell the entire property by appointing Advocate-Commissioner, if it is indivisible and pay l/6th share amount out of the

sale proceeds. The relief sought for in the suit clearly shows that the 8th Respondent/purchaser has not moved the Court for getting partition and

separate possession of her 5/6th share in the property. As the 8th Respondent had not moved the Court for partition and separate possession of

her 5/6th share, filing an Interlocutory Application under Sections 3 and 4 of Partition Act, 1893, seeking a direction to fix the value of 5/6th share

of the Respondents/Defendants of the suit property, in order to sell the 5/6th share to the Petitioner or the sale consideration paid by the 8th

Respondent for the 5/6th share in the suit filed by the Petitioner himself for partition and separate possession of his l/6th share or to pay l/6th share

out of the sale proceeds, after selling the entire property through an Advocate Commissioner is not at all maintainable.

It is an admitted fact that the suit was filed only by the Petitioner/Plaintiff, seeking partition of his l/6th share in the property and no such suit

was filed by the 8th Respondent, subsequent purchaser for her 5/6th share. As Plaintiff, the Petitioner herein has made it clear in the suit that in

case if the property is not divisible, the entire property be sold through an Advocate-Commissioner and l/6th share amount out of the sale

proceeds be paid to him. When such is the main prayer in the suit, the Petitioner/Plaintiff cannot go beyond the main prayer, by way of filing

Interlocutory Application, seeking direction to value the property, by way of Advocate-Commissioner and directing the Respondents to sell the

property to the Petitioner/Plaintiff. As contended by the learned Counsel for the 8th Respondent, the relief sought for in the Interlocutory

Application is against the main prayer in the suit, hence, the relief sought for in the Interlocutory Application is not legally maintainable. As the 8th

Respondent/subsequent purchaser has not filed any suit for partition and separate possession of her 5/6th share, only the revision Petitioner/Plaintiff

has filed the suit for partition and separate possession of his l/6th share in the property. If the property is not divisible, alternatively the Petitioner

had asked to sell the property by appointing an Advocate-Commissioner and in the sale proceeds, the Petitioner/Plaintiff has claimed 1/6th

amount.

It is a well settled proposition of law that the relief sought for in the Interlocutory Application could not be beyond the main relief sought for in

the suit. Considering the same, I am of the view that the relief sought for in the Interlocutory Application relating to the Civil Revision Petition is not

legally sustainable, since the relief is totally a new relief, contrary to the main relief sought for in the plaint.

As ruled by the Hon''ble Supreme Court in the decisions referred in Babulal Vs. Habibnoor Khan (Dead) by LRs. and Others, , referred to

above, the subsequent purchaser/8th Respondent, who purchased the 5/6th share has not filed any suit for partition and separate possession,

hence, by filing a suit, seeking partition and separate possession of l/6th share and an alternative relief to appoint an Advocate Commissioner to sell

the property and out of the sale proceeds to pay l/6th share to the Petitioner. The Petitioner herein had filed the Interlocutory Application before

the Court below, seeking a totally different prayer to direct the Respondents, subsequent purchaser to sell their 5/6th share to the Petitioner is not

legally sustainable, hence, the Interlocutory Application was rightly dismissed by the Court below.

On the aforesaid facts and circumstances, I could find no error or infirmity in the impugned order, passed by the Court below, dismissing the

Application filed by the Petitioner/Plaintiff and accordingly, the Civil Revision Petition is liable to be dismissed.

In the result, this Civil Revision Petition is dismissed. Consequently, connected miscellaneous petitions are also dismissed. However, no order

as to costs.