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CALCUTTA HIGH COURT
Girish Chandra Gupta and Shib Sadhan
Sadhu, JJ.
Mihir Kumar Das —Appellant
versus
Smt. Ajanta Dutta & Ors. —Respondents
F.M.A. No.2631 of 2007
Decided on 30.10.2014
For the Appellant:Mr. Sudhis Dasgupta, Mr.Sibasis Ghosh, Mr.Rwitendra Banerjee and Mr.Shibasish Chatterjee, Advocates
For the Respondents:Mr. Gopal Chandra Ghosh, Advocate
IMPORTANT POINT
S. 4 of Partition Act does not provide as condition for its applicability that stranger transferee must file suit for partition.
Headnote:Partition Act, 1893 — Section 4 — Applicability of — Partition suit — Appellant in WS pleaded for partition of property in question by metes and bounds — He gave evidence and deposed as witness for defendant — In his examination-in-chief asserted in clear voice - “We have 50% share in suit house and pray for partition of our share in suit house” — HELD — Clear picture reflected that appellant not only asserted his share in suit property — But emphatically demanded partition of same — As such he can certainly be said to be suing for partition — Contention of Counsel for appellant that as appellant did not sue for partition — Benefit of S. 4 of Partition Act could not be given to respondents — Cannot be accepted. [Paras 13 to 14]
Result: Appeal dismissed
Shib Sadhan Sadhu, J.—The instant appeal is against an order dated 16.5.2007 passed by the Learned Civil Judge (Senior Division), 9th Court, Alipore, 24 Parganas (South) in Misc. Case No.9 of 1999 arising out of Title Suit No.33 of 1997.
2. The factual background leading to this appeal stated in brief is as follows:
The respondent Nos.1, 2 and 3 namely Smt. Ajanta Dutta, Smt Bipasa Raha and Smt. Monisha Chowdhury respectively had filed a suit (Plaintiffs of Title Suit No.33 of 1997) for partition of their eight (8) anas share in the suit property which is an undivided dwelling house originally owned by two brothers Dilip Kumar Dutta and Pradip Kumar Dutta. Dilip died leaving behind the respondents 1, 2 & 3 as his sole legal heirs while Pradip died leaving behind respondent Nos. 4 & 5 Smt. Gayatri Dutta and Sumit Dutta (defendant Nos.1 & 2 in Title Suit No.33 of 1997). The present appellant Mihir Kumar Das was made Proforma Defendant in that Title Suit No.33 of 1997. After closure of evidence in that suit he produced a certified copy of sale deed showing that he had purchased the share of Pradip in the suit property for Rs.1,80,000. Accordingly, he was transposed as defendant No.3. Thereafter, the suit was decreed in preliminary form declaring the eight (8) anas share of the plaintiffs i.e. present respondents 1,2 & 3 in the suit house.
3. During pendency of the suit the respondents 1, 2 & 3 filed an application under Section 4 of the Partition Act for enforcing their claim for pre-emption against the appellant stranger transferee in respect of ½ undivided interest of the original title-holder Pradip Dutta, predecessor-in-interest of the defendants 1 & 2 Smt. Gayatri Dutta and Sumit Dutta. The said application was contested by the appellant by submitting that it was not maintainable. The Learned Trial Judge after taking evidence and hearing the parties allowed the application under Section 4 of the Partition Act holding that the suit house is an undivided family dwelling house, that the ½ share of it was transferred by one of the co-owners in favour of the appellant who is a stranger to the family and that the respondents 1,2 & 3 being the co-sharer members of the family are competent to claim pre-emption and so they are entitled to pre-empt the share of the appellant stranger purchaser and passed order accordingly. Being dissatisfied, the appellant has come up with the present appeal.
4. We have heard Mr. Sudhish Dasgupta, Learned Senior Counsel appearing for the appellant and Mr. Gopal Chandra Ghosh, Learned Counsel appearing for the respondents. Mr. Dasgupta contended that the respondents filed the suit for partition as plaintiffs and the appellant was made a defendant therein. Thus, it cannot be said that the appellant at all “sued for partition”. He vehemently contended further that Section 4 could only be invoked when the stranger transferee “sues for partition”. Therefore, according to him one of such essential conditions for applicability of Section 4 being not satisfied, the Learned Trial Court erred in law in allowing the application under Section 4 of the Partition Act and accordingly, submitted that the impugned judgment is liable to be set aside on this count alone. He relied on the decisions reported in Sakhawat Ali v. Ali Husain and Others, AIR 1957 Allahabad 356.; Gautam Paul v. Debi Rani Paul and others, (2000) 8 Supreme Court Cases 330.; and Gyan Chand and another v. Sumat Rani and Ors., (2002) 9 Supreme Court Cases 477. in support of his contention.
5. On the other hand Mr. Ghosh in reply submitted that settled legal position is that to invoke Section 4 of the Partition Act, the transferee need not necessarily sue as plaintiff and the word ‘to sue’ may be applied indifferently either to the defendant or the plaintiff and it signifies not only “to protect” “but also to defend” or to do something which the law requires for the better prosecution or defence of the cause. He submitted further that the termi
