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2005 Supreme(Cal) 228
High Court Of Calcutta
Narayan Chandra Sil
BISWA NATH NATH - Appellant
Versus
SANDHYA GHOSHAL - Respondent
C. O. 2665 Of 2004
Decided On : 04/01/2005
GAUTAM DAS, HARISH TANDON, NIRMAL KUMAR DEY
A co-sharer cannot obtain delivery of possession of the uncertain share of an undivided dwelling house purchased by a stranger purchaser unless there is a regular partition by metes and bounds by passing a decree.
Headnote:
PARTITION ACT, 1893 - SECTION 4 - TRANSFER OF PROPERTY ACT, 1882 - SECTION 44 - CIVIL PROCEDURE CODE, 1908 - ORDER XLI RULE 5 - STAY OF EXECUTION - CO-SHARER'S RIGHT TO PURCHASE - APPLICABILITY OF SECTION 4 OF THE PARTITION ACT - INTERPRETATION OF SECTION 44 OF THE TRANSFER OF PROPERTY ACT AND SECTION 4 OF THE PARTITION ACT - COURT'S DISCRETION TO GRANT STAY OF EXECUTION - CONDITIONS FOR STAY - SUFFICIENT CAUSE - CO-SHARER'S RIGHT TO OBTAIN DELIVERY OF POSSESSION OF UNCERTAIN SHARE OF UNDIVIDED DWELLING HOUSE PURCHASED BY STRANGER PURCHASER - JURISDICTIONAL ERROR OR ILLEGALITY - MAINTAINABILITY OF REVISIONAL APPLICATION.
Fact of the Case:
A partition suit was filed by the plaintiff against the defendants for partition of the suit property, a residential house. The defendants contested the suit and claimed ownership of half share of the suit property by virtue of a will executed by the previous owner in their favor. The trial court passed a preliminary decree declaring half share of the plaintiff in the suit property. The defendants appealed the decree, but the appeal was dismissed. The defendants then filed a second appeal, which was pending before the High Court. During the pendency of the second appeal, the plaintiff applied for and obtained a final decree in the partition suit and put the decree into execution. The defendants filed an application under Section 4 of the Partition Act for pre-emption in respect of the other half share of the suit property. The plaintiff filed an application for stay of the execution proceedings till the disposal of the pre-emption application. The executing court rejected the stay application. The defendants appealed the order of the executing court, but the appeal was dismissed by the Additional District Judge.
Finding of the Court:
The High Court held that the order of the Additional District Judge was not erroneous or illegal and did not suffer from any jurisdictional error. The court observed that the defendants, as co-sharers, could not obtain delivery of possession of the uncertain share of the undivided dwelling house purchased by a stranger purchaser unless there was a regular partition by metes and bounds by passing a decree. The court also noted that the defendants had not made out any cogent ground to show how they would be prejudiced if the execution proceedings were to continue while their pre-emption application was being decided separately.
Issues: 1. Whether the defendants, as co-sharers, were entitled to obtain delivery of possession of the uncertain share of the undivided dwelling house purchased by a stranger purchaser without a regular partition by metes and bounds? 2. Whether the Additional District Judge erred in dismissing the defendants' appeal against the order of the executing court rejecting their application for stay of execution?
Ratio Decidendi: 1. The court held that the defendants, as co-sharers, could not obtain delivery of possession of the uncertain share of the undivided dwelling house purchased by a stranger purchaser unless there was a regular partition by metes and bounds by passing a decree. The court relied on the ratio of the Supreme Court decision in Srilekha Ghosh (Roy) and Anr. v. Partha Sarathi Ghosh, 2002 (6) scc 359, which held that a co-sharer cannot maintain an application under Section 4 of the Partition Act when the said co-sharer himself sues for partition. 2. The court held that the Additional District Judge did not err in dismissing the defendants' appeal against the order of the executing court rejecting their application for stay of execution. The court observed that the defendants had not made out any cogent ground to show how they would be prejudiced if the execution proceedings were to continue while their pre-emption application was being decided separately.
Final Decision: The High Court dismissed the revisional application and affirmed the order of the Additional District Judge. The court directed the parties to bear their respective costs.
( 1 ) THIS present revisional application under Article 227 of the Constitution of India was directed against the order dated 6/8/2004 passed by Sri A. K. Mondal, the learned Additional District Judge, Katwa in connection with miscellaneous Appeal No. 2 of 2004 affirming the Order No. 38 dated 17/1/2004 passed in Title Execution Case No. 11 of 1995.
( 2 ) IT appears from the facts stated in the revisional application that smt. Champa Rani Devi, the mother of the opposite parties filed a suit for partition being Title Suit No. 46 of 1990 in the Court of learned Assistant district Judge, Katwa against the petitioner/defendant in respect of the suit property being plot No. 757 under Mouza Dainhat within Katwa Police station.
( 3 ) IN the present revisional application the revisionist has given the facts as to how the property devolved upon different parties. It is stated that the suit property originally belonged to Radhika Prasad Nath, Nasiram nath and Raghu Nath Nath. Radhika died leaving two sons Siba Pada and ram Pada. Nasiram died leaving his son Baidya Nath who is husband of the plaintiff. Raghu Nath died leaving his widow Jnanda Sundari. On 31st july, 1934 Jnanda Sundari purchased 2/3rd shares from Siba Pada Ram pada and Baidya Nath and thus she became the owner of the entire suit property. There was a stipulation rather condition in the agreement at the time of sale that if the heirs of Baidya Nath, Ram Pada and Siba Pada, want to repurchase the property sold to Jnanda Sundari she will reconvey the same to such heirs. Thus, "champa Rani, the plaintiff being the wife of baidya Nath purchased half share of the entire property from Jnanda Sundari on 28. 8. 1995. The entire devolvement of the property by inheritance and also by purchase may be shown in the following table :- radhika (1/3rd) nasiram (1/3rd) raghu Nath (1/3rd) siba Pada Ram Pada (1/3rd) baidya Nath (1/3rd) (husband of the plaintiff) jnanda Sundari (widow) (1/3rd) jnanda Sundari purchased 2/3rd on 31. 07. 34 with some conditions. Thus she became full owner. Champa Rani Purchased 1/2 share (8/annas) on 24. 08. 55 thus, the plaintiff requested the defendants to partition of the suit property amicably but the defendants disclose that they got the entire suit property from Jnanda Sundari by a Will which was probated and the Letters of administration had been taken and so the defendants did not agree to the proposal of amicable partition of the suit property given by the plaintiff and as such the suit was filed.
( 4 ) THE defendants contested the suit by filing a written statement and all the material allegations were denied and it is stated inter alia there that Jnanda Sundari being the sixteen annas owner of the suit property executed a will appointing Baidya Nath as an executor of the Will. Baidya nath taking advantage of the confidence reposed by the illiterate lady Jnanda sundari procured her signature on a blank stamp papers which were subsequently converted the same into the sale deed in respect of half share of the suit property in favour of Champa Rani Devi. It was claimed there that Jnanda never sold any portion of the suit property to Champa Rani. It is also stated that Jnanda Sundari executed a second Will in 1961 bequeathing all her properties in favour of the defendants cancelling her first Will after being aware of the mal-practice of Baidya Nath. The defendants took the probate of the second Will of Jnanda Sundari but it was in respect of half share of the suit property due to mistake. It was also alleged there that the plaintiff never got the possession of the suit property and the alleged sale was never acted upon.
( 5 ) IT is further stated in the application for consideration before us that both the sides adduced/produced evidence in that partition suit before the learned trial Court and the learned trial Court after having considered those evidence passed the decree in preliminary form declaring half share of the plain
