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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
Jaspreet Singh, J.
Yogesh Kesarwani And Anr. - Appellant
Vs.
Devi Shankar Shukla - Respondent
SECOND APPEAL No. - 202 of 2017
Decided On : 17-02-2022
Partition Act, 1893 - Section 4 - Transfer of Property Act - Section 44 - Gift deed - Partition suit by transferee of share in dwelling-house - Valuation of share of stranger purchaser - Transfer by co-owner - Scope and ambit of Section 4 of Act, 1893 - Decree of declaration against defendants - Whether valuation of share of stranger in house of shareholder must be made by court on date of judgment determining respective shares of transferee and co-sharer? If yes, its effect on decree passed by lower appellate court - Whether "Undertaking " must be un-conditional and if yes whether absence of any finding recorded by lower appellate court in favour of the present respondent that he gave un-conditional 'undertaking to buy' benefit of Sec. 4, partition Act could have been extended? And, if not, its effect.
Finding of the court: While enforcing right under Section 4, there must be something more than a mere offer and undertaking give to Court should be unconditional and a person should not be able to resile from same - This Court holds that in so far as undertaking is concerned, same was unconditional and respondent is entitled to exercise his rights under Section 4 of Partition Act - Dealing with valuation of share of stranger purchaser, this Court finds that while doing so it will necessarily involve consideration of fact that (i) who is to make such a valuation and (ii) what would be material date on which valuation is to be determined - Perusal of Section 44 of Transfer of Property Act, would indicate that a stranger to a family who becomes transferee of an undivided share of one of co-owners in a dwelling house belonging to an undivided family can not claim a right of joint possession of house with other co-owners of dwelling house. The date of valuation can never be date of purchase or date of institution of suit or date of preliminary decree but has to be at least date on which co-sharer makes offer and undertakes to buy share of stranger purchaser, whatever be stage of proceedings - Admittedly, same has not been done by either Trial Court or Lower Appellate Court. Lower Appellate Court has merely taken valuation as given by appellants in their plaint and value of sale deed as price upon which appellants have been directed to sell the share to respondents. There has been no determination regarding valuation of share - Court finds that judgment and decree passed by two Courts is not sustainable and this Court would not venture into exercise of determining valuation as same would require evidence, hence, it would be most appropriate that matter be remitted to Trial Court with direction that it shall appoint a Government approved property valuer who would visit property and determine valuation of property in question prevailing in December, 2009 i.e. date when defendant respondent herein made an application seeking enforcement of his rights to purchase share of stranger purchaser. Parties would also be entitled to lead their evidence in respect of valuation and also indicate natural/reasonable escalation/stagnation/fall in prices of property in question, as case may be.
Result: Second appeal allowed.
JUDGMENT :
1. The issue involved in the instant second appeal revolves around the scope and ambit of Section 4 of the Partition Act, 1893.
2. The present second appeal has been preferred by the plaintiffs/appellants being aggrieved against the judgment and decree dated 14.02.2017 passed by the First Appellate Court in Regular Civil Appeal No. 63 of 2016 whereby the Lower Appellate Court allowed the defendants appeal and set aside the judgment and decree dated 20.01.2016 passed by the Civil Judge, Senior Division, Lucknow in R.S. No. 436 of 2009 whereby the counter claim of the defendant was denied, as a result the counter claim has been decreed.
3. The instant second appeal was admitted on the following two substantial questions of law which read as under:-
ii. Whether the "Undertaking " must be un-conditional ? and if yes whether the absence of any finding recorded by lower appellate court in favour of the present respondent that he gave un-conditional 'undertaking to buy' the benefit of Sec. 4, partition Act could have been extended? and, if not, its effect?"
Factual Matrix:
4. In order to appreciate the controversy involved, it will be relevant to notice the facts giving rise to the present appeal.
5. Devi Shankar Shukla (the respondent herein and referred to as the co-sharer) instituted a suit bearing No. 4 of 2007 before the Court of Civil Judge, Senior Division, Lucknow, seeking a decree of declaration against the following defendants namely Vijay Shankar Shukla, Ravi Shankar Shukla, Smt. Pratibha Shukla, Dr. Kripa Shankar Shukla and subsequently by amendment Sri Satya Prakash Nigam (transferee) was also impleaded as a defendant.
6. It was the case of the respondent herein that one Smt. Sadhu Devi wife of late Sri Sarjudeen Shukla was the exclusive owner in possession of the house bearing old house No. 19 and 15/8 and New Nagar Nigam House No. 50/110 situate at Jai Narayan Road, Hussainganj, Lucknow having purchased the said house by means of registered sale deed dated 13.10.1917.
7. It was also pleaded that Sarju Deen Shukla had two sons from his first wife namely Shyam Sunder Shukla and Shyam Manohar Shukla while from his second wife namely Smt. Sadhu Devi, he had a son namely Gaya Shankar Shukla.
8. Sri Shyam Manohar Shukla died during the lifetime of Sri Shyam Sunder Shukla. The wife of Shyam Manohar Shukla namely Smt. Tulsa Devi and Shyam Sunder Shukla both in their lifetime, on 14.11.1931, had relinquished their shares in favour of Smt. Sadhu Devi in respect of the property in question.
9. Thus, Smt. Sadhu Devi was the exclusive owner in possession of the property in question and after her death, the father of the respondent herein namely Gaya Shanker Shukla became its exclusive owner. The respondent herein was born in the said property and continued to live therein with his parents. His father expired on 15.11.1992 and his mother too expired on 16.10.2005, leaving behind the respondent and three other siblings and thus the respondent claimed 1/4th share in the property in question.
10. It was also pleaded that one of the brothers of the respondent namely Sri Anoop Shankar Shukla expired on 11.05.2004 and his share devolved on his wife namely Smt. Pratibha Shukla. It was also pleaded that though by means of the registered deed dated 14.11.1931. Smt. Tulsa Devi and Shyam Chandra Shukla had relinquished their shares in favour of Smt. Sadhu Devi but later it came to light (through a sale deed executed by the defendants nos. 1, 2 and 3 of Suit No. 4 of 2007 in favour of the defendant no. 5) that Smt. Sadhu Devi had executed a gift deed in favour of the defendant no. 4 Dr. Kripa Shankar Shukla and thus, the respondent herein who was the plaintiff of the Regular Suit
Point of Law : In terms of Section 4, the duty is cast upon Court to determine the valuation of the share of the stranger purchaser.
Power To Sell Share - Under Section 3(1) of Act, court has power to sell share or shares to shareholder who offers highest price above valuation made by court.
The character of a property as a dwelling house under the Partition Act is retained even with temporary use for commercial purposes, necessitating fresh adjudication of related applications.
A co-sharer cannot invoke the right to repurchase under Section 4 of the Partition Act without the stranger purchaser instituting a partition suit.
A request for public sale under Section 2 of the Partition Act is essential for a co-owner to invoke rights under Section 3, and mutual clarity in requests is critical for maintaining property within....
The court established that shareholders in a partition suit have a right to preemption and must be offered the opportunity to purchase their shares at a determined valuation before auction.
The application under Section 4 of the Partition Act, 1893 read with Section 44 of the Transfer of Property Act, 1882 was not premature and should be reheard by the lower court.
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