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IN THE HIGH COURT AT CALCUTTA
T.K. Basu, J.
Madhukar Pranjivan & other – Plaintiffs
Versus
Jagmohan Narottam & other – Defendants
Suit No. 1910 of 1964
Decided On: May 2, 1985
PARTITION ACT, 1893 - SECTION 4 - DWELLING HOUSE - TRANSFER TO NON-FAMILY MEMBER - PRE-EMPTION RIGHT OF CO-SHARER - LIMITATION - INTERPRETATION OF DWELLING HOUSE - PREMISES SUBSTANTIALLY USED FOR DWELLING PURPOSES - CO-SHARERS' INTENTION TO USE IT AS SUCH - APPLICATION UNDER SECTION 4 MAINTAINABLE - VALUATION OF UNDIVIDED SHARE BY COURT-APPOINTED VALUER.
Fact of the Case:
The suit was filed for a declaration of shares in two properties, one in Mangrol and the other in Calcutta, and for partition of the said properties by metes and bounds and allotment to the co-sharers in severalty. During the pendency of the suit, one of the co-sharers, Jagmohan Narottam, transferred his 1/3rd undivided share in the Calcutta property to Savita, who later sold it to M/s. Doon Realty. The plaintiffs, being the descendants of the other two co-sharers, filed an application under section 4 of the Partition Act, 1893, seeking to purchase the 1/3rd share transferred to Savita and subsequently to Doon Realty.
Finding of the Court:
The court held that the plaintiffs were entitled to the reliefs prayed for in their application under section 4 of the Partition Act, 1893. The court found that the premises in question was substantially used for dwelling purposes and that the co-sharers had not given up their intention of using it as such.
Issues: 1. Whether the application under section 4 of the Partition Act, 1893, was barred by limitation? 2. Whether the property in question was a dwelling house within the meaning of section 4 of the Act? 3. Whether the plaintiffs could abandon part of the claim made in the suit and maintain the application under section 4 of the Act?
Ratio Decidendi: 1. The court held that the right of a co-sharer to make an application for pre-emption under section 4 of the Partition Act for starting a proceeding at any stage is valid and effective. It was held that an application for pre-emption under section 4 of the Act can be made at any stage of the suit and the law of three years limitation does not apply. 2. The court held that if a substantial portion of the premises is used for dwelling purposes then it is a dwelling house within the meaning of section 4 of the Act. The fact that a small portion of the premises is used for other purposes will not make a difference to the legal position. Further, if the co-sharers do not give up the intention of dwelling there, section 4 applies. 3. The court held that the plaintiffs could always abandon part of the claim made in a suit and on that basis maintain an application under section 4 of the Act.
Final Decision: The court appointed a valuer to value the undivided 1/3rd share of the premises in question and directed the valuer to submit his report by a specified date. The court also directed that the remuneration of the valuer was to be paid by the petitioner in the first instance.
T.K. Basu, J.
1. This suit is for a declaration of shares in two properties one in Mangrol in Saurashtra and the other in Calcutta being Premises No. 48, Ezra Street, Calcutta and for partition by metes and bounds of the said two properties and allotment to the co-sharers in severalty.
2. The suit was originally filed by Pranjivan Jaitha, since deceased, his wife Maneckbai and his three sons Vidyachand, Madhukar and Tilak against three (i), Narottam's descendant Jammohan and Jagmohan's sons namely Kishore Kirit, and Dinesh (ii) Ramchand's descendants i.e. five sons of Ramchand, namely Bhagwandas, Dharamdas, Amritlal, Devi Das and Hemchand and five grand sons of Ramchand, namely Tribhuban, Arun, Prabhudas, Vimal and Suresh, and (iii) Varjiban and his wife Savita who had separated from the branch of Pranjivan.
3. The case of the plaintiffs in the plaint is that one Jaitha Jaic hand was the absolute owner of the Premises No. 48, Ezra Street, Calcutta. He died intestate on or about the 19.6.1911 leaving behind him his widow, Hem Keorbai and three sons namely Ramchand, Narottam and Pranjivan each having 1/3rd share in the above premises.
4. Ramchand died intestate on or about 11.1.1918 leaving behind him his descendants mentioned above. Jaitha Jaichand's wife Hem Keorbai died in 1944.
5. Narottam died on or about 8.12.1948 leaving him surviving his only son Jagmohan Narottam. Thus, prior to 4.9.1962 the branches of the three sons of Jaitha Jaichand namely Ramchand, deceased; Narottam, deceased and Pranjivan had acquired undivided 1/3rd share each in the said properties including 48, Ezra Street, Calcutta with which only we are concerned in the present application.
6. On the 4.9.1962, a deed of Partition was executed whereby Pranjivan's son Varjivan's branch consisting of Varjivan, his wife Savita and two sons separated from Pranjivan's branch and relinquished their interest in the premises No. 48, Ezra Street, Calcutta in favour of Pranjivan and his other sons. Thus Varjivan's sons ceased to have any interest in premises No. 48, Ezra Street, Calcutta.
7. Thus prior to the 16.5.1963 the branch of Ramchand deceased, the branch of Narottam deceased and the branch, of Pranjivan minus Varjiban's sub-branch were interested in premises No. 48, Ezra Street to the extent of undivided 1/3rd share each.
8. It appears that on the 16.5.1963 Narottam's sons Jagmohan conveyed his 1/3rd share in the premises No. 48, Ezra Street, Calcutta to Smt. Savita Varjiban for Rs. 90,000/-. The conveyance was registered in Bombay but it was only in May, 1964 that the original plaintiff' came to know of this conveyance.
9. On 25.5.1964 the present suit was filed for a declaration of shares and the partition of the properties in severalty. It appears that during the pendency of this suit Savita Varjiban conveyed her 1/3rd share which she had purchased from Jagmohan Narottam to one M/s. Doon Realty for a sum of Rs. 42,000/-.
10. In the original plaint, the plaintiffs had challenged the sale by Jagmohan Narottam to Savita as being in breach of an agreement which has been pleaded in paragraph 3 of the original plaint.
11. In the written statements filed by Savita and Varjiban they have asserted that the sale dated the 16.5.1963 is valid and that Savita had validly acquired the right of 1/3rd share in 48, Ezra Street, Calcutta and demanded partition of the 1/3rd share.
12. As already indicated Savita conveyed her 1/3rd share, to M/s. Doon Realty on the 16.6.1972 for Rs. 42,000/-. Varjiban was a confirming party to the conveyance. The present petitioner before me in the application discovered this fact in July, 1972. Thereafter the original plaint was amended by an order of this Court on the 30.3.1973 whereby Doon Realty was added as a defendant. Paragraphs 15(a) and 15(b) and 18(a), 18(b), 18(c), 18(d), 18(e) and 18(f) and prayers h(i), h(ii) and h(iii) were inserted in this plaint by way of amendment.
13. In 1974 Madhukar and Tilak the two sons of Pranjivan purchased
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