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High Court Of Calcutta
CHITTATOSH MUKHERJEE, MONORANJAN MALLICK, SUDHANSHU SEKHAR GANGULY
SIBA PROSAD BHATTACHARYYA - Appellant
Versus
BIBHUTI BHUSAN BHATTACHARJEE - Respondent
C. O. 768 Of 1983
Decided On : 08/18/1987
PARTITION ACT - SEC. 4 - INTERPRETATION - RIGHT OF PRE-EMPTION AVAILABLE TO CO-SHARER - STRANGER PURCHASER IMPLEADED AS DEFENDANT - NO REQUIREMENT FOR STRANGER PURCHASER TO APPLY FOR PARTITION OR SEPARATE ALLOTMENT - SEC. 4 TO BE LIBERALLY CONSTRUED TO PREVENT DISINTEGRATION OF FAMILY DWELLING HOUSE.
Fact of the Case:
Plaintiffs, three brothers, filed a suit for partition and permanent injunction against defendant No. 1, their other brother, claiming 3/4th share in the undivided family dwelling house. During the pendency of the suit, defendant No. 1 sold his share to defendant No. 1(a), a stranger purchaser, who was impleaded as a party. After the preliminary decree, plaintiffs applied for pre-emption under Section 4 of the Partition Act, claiming the right to purchase the share transferred to defendant No. 1(a). The trial court dismissed the application on the ground that plaintiffs had waived their right to pre-emption by not offering an adequate price when defendant No. 1 offered to sell his share prior to the sale to defendant No. 1(a).
Finding of the Court:
The court held that the trial court erred in dismissing the application for pre-emption. It found that there was no sufficient material before the trial court to hold that the plaintiffs had waived their right to pre-emption. The court also held that the decision in Netai Das v. Hari Das, which held that the right of pre-emption is not available to a co-sharer when the stranger purchaser does not himself file the suit for partition or pray for separate allotment, was incorrectly decided. The court interpreted Section 4 of the Partition Act liberally, holding that the right of pre-emption is available to a co-sharer even when the stranger purchaser is arraigned as a defendant and irrespective of whether the stranger purchaser has actually applied for partition or separate allotment of his share.
Issues: 1. Whether the right of pre-emption under Section 4 of the Partition Act is available to a co-sharer of an undivided family dwelling house when the stranger purchaser is impleaded as a defendant in a partition suit? 2. Whether the decision in Netai Das v. Hari Das, which held that the right of pre-emption is not available to a co-sharer when the stranger purchaser does not himself file the suit for partition or pray for separate allotment, was correctly decided?
Ratio Decidendi: 1. The court held that the right of pre-emption under Section 4 of the Partition Act is available to a co-sharer of an undivided family dwelling house when the stranger purchaser is impleaded as a defendant in a partition suit. The court reasoned that the object of Section 4 is to prevent the disintegration of the family dwelling house by preventing the introduction of strangers therein. The stranger is adequately compensated by the market value of the property purchased so that the dwelling house of the family is preserved. The court further held that the words "to sue" in Section 4 include both "to prosecute" and "to defend", and that the right of pre-emption is available to the co-sharer even when the stranger purchaser is a defendant. 2. The court held that the decision in Netai Das v. Hari Das was incorrectly decided. The court reasoned that the liberal interpretation of Section 4 is necessary to prevent the object of the section from being frustrated. The court held that there is no scope for further limiting the right of the co-sharer by requiring the stranger purchaser to apply for separate allotment in order to exercise the right of pre-emption.
Final Decision: The court allowed the revisional application, set aside the order of the trial court, and directed that the application under Section 4 of the Partition Act be allowed. The court also directed the trial court to proceed in accordance with law and to pass further orders under Section 4 of the Partition Act.
( 1 ) ANIL Kumar Sen and S. N. Sanyal JJ. have referred this revisional application for disposal by Special Bench as the Learned Advocate appearing for stranger purchaser being the defendant No. 1 (a) of the Title Suit No. 131 of 1977 in the Court of the Subordinate Judge, First Court, Alipore, challenges the maintainability of the application under Sec. 4 of the Partition Act, on the ground that the same is not maintainable inasmuch as the stranger purchaser has neither prayed for partition nor for separate allotment. The Learned Judges have ex pressed the view that the view expressed in Nitai Das v. Hari Das, ILR (1967) 2 Cal 301 relied upon by the Learned Advocate is contrary to other earlier decisions of the Court. In order to resolve the conflict of the views the Learned Judges have ordered that the revisional application should be decided by a Larger Bench.
( 2 ) FOLLOWING are the facts : the petitioners being three brothers have filed as plaintiffs a suit for partition, permanent and mandatory injunctions being T. S. 131 of 1977 before Subordinate Judge, 1st Court, Alipore against the defendant No. 1 claiming 3/4th share in the 17/4, Pitambar Ghatak Lane, Calcutta-27 and alleging that defendant No. 1 being the other brother has the remaining 3/4th share. During the pendency of the suit as the defendant 1 has sold away his share to Chittaranjan Bhattacharjee, a stranger purchaser, he has been impleaded as defendant No. 1 (a ). After the preliminary decree has been passed, the petitioners have applied for pre-emption u/s. 4 of the Partition Act for purchasing the share transferred to defendant No. 1 (a) on the ground that the property is undivided family dwelling house of the plaintiffs and the defendant No. 1 and the defendant No. 1 (a) is a stranger purchaser. The learned Subordinate Judge registered the application as Misc. Case No. 3 of 1983. The Learned Subordinate Judge however dismissed the said application under an order dated 11th February, 1983 only on the ground that the plaintiffs have waived the right to pre-emption as the defendant No. 1 prior to his sale of his share to defendant No. 1 (a) offered the plaintiffs to purchase his share but the plaintiffs did not offer adequate price to purchase the share. Being aggrieved the petitioners have filed the revisional application u/s. 115, C. P. Code challenging the above order as illegal.
( 3 ) THE opposite party No. 2 being the stranger purchaser has opposed the application. Though in the trial Court no plea was raised that the application was not entertainable on the ground that the opposite party No. 2 neither filed the suit for partition nor prayed for separate allotment, such a contention was raised for the first time in revision before the Division Bench and the Learned Judges of the Division Bench have referred the revision application to be disposed of by the larger Bench Before us Learned Advocate for the petitioners has made two-fold submissions. Firstly there is no question of waiver of the right of preemption because the alleged offer which the petitioners very much dispute was made prior to the transfer and cannot prevent the petitioners from claiming the right of preemption u/s. 4 of the Partition Act, which right accrues to petitioners after a co-sharer sells his share in the undivided family dwelling house to the stranger. Secondly, the series of the decisions of Calcutta High Court beginning from Satyabhama v. Jatindra, AIR 1929 Cal 269 has consistently taken the view that the right of pre-emption is available to a co-sharer even in a case when the stranger purchaser does not himself file the suit for partition and is arraigned as a defendant in a partition suit filed by the co-sharer and that the Division Bench decision of Netai Das v. Hari Das, ILR (1967) 2 Cal 301 should not be accepted as the said decision is against the series of decisions of this High Court Mr. Arun Kr. Matilal learned Advocate for opposite pony No.
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