Calcutta High Court (Appellete Side)
Bijan Kumar Ghosh vs Swapan Mondal & Ors on 4 October, 2023
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE AJOY KUMAR MUKHERJEE
FMA 3390 of 2014
Bijan Kumar Ghosh.
Vs
Swapan Mondal & Ors.
For the Appellants : Mr. Debjit Mukherjee
Mr. Kaustav Bhattacharya
Ms. Susmita Chatterjee
Ms. Dipanwita Ganguly
For the Respondents : Mr. Buddhadeb Ghosal
Mr. Ramprokas Banerjee
Mr. Promode Ranjan Chatterjee
Heard on : 05.09.2023
Judgment on : 04.10.2023
Ajoy Kumar Mukherjee, J.
1. This appeal has been preferred against Judgement and order dated
24th April 2014 passed by Learned Additional District Judge, 5th court
Howrah, in Title Appeal no 152 of 2012, which was preferred against
judgement and decree dated 28.08.2012 passed by Civil Judge (Sr.Division)
2nd court, Howrah in Title Suit no 25 of 1998.
2. Brief background of the present case needs to be stated at the outset.
The property in dispute comprising of dwelling house over land measuring
about 2 katha 7 chattak 20 sq ft, known as 6/2, Asutosh Mukherjee Lane,
originally belonged to one Bhola Nath Majilya who during his lifetime
executed a registered deed of "Nirupan Patra" on 10th July 1985, by which he
settled the said dwelling house in favour of his three sons namely, Subuddhi
Bhajan Majilya, Harekrishna Majilya and Debnarayan Majilya in equal
share. Thereafter Subuddhi Bhajan mortgaged his 1/3rd share in the said
premises in favour of respondent no. 1 herein, Swapan Mandal by executing
an ostensible deed of sale and simultaneously an agreement of reconveyance
was also executed on the same date. Subsequently on 16th Sep 1998, said
respondent no. 1 Swapan Mandal reconveyed the property by executing a
registered deed of Re-conveyance in favour of Subuddhi. Thereafter on 11th
April 1997, aforesaid Harekrishna and Debnarayan sold their 2/3rd share of
the said premises in favour of appellant herein, Bijon Ghosh. On 26th
February 1998 appellant/Bijon filed Title Suit no. 25 of 1998 against said
Subuddhi Bhajan and Swapan for partition and injunction relating to
aforesaid suit building. During pendency of the said partition suit, Subuddhi
Bhajan i.e. defendant no 2 of that suit filed one Misc. case being 5 of 2000
under section 4 of the Partition Act 1893, seeking pre-emption of the
transferred portion to the stranger purchaser i.e. appellant herein.
3. Learned Trial Court heard the partition suit as well as aforesaid Misc.
case seeking Pre-emption analogously and by the judgement and decree
dated 28.08.2012 was pleased to dismiss aforesaid Misc. case no. 5 of 2000
on the ground of limitation relying upon section 97 of the Limitation Act and
decreed the partition suit being Title Suit no. 25 of 1998 in preliminary form.
4. Being aggrieved by that judgment and decree, the substituted
defendant/respondent no 2 series herein preferred appeal being Title Appeal
no. 152 of 2012 before Learned District Judge, Howrah, which was
subsequently transferred before Additional District Judge, 5th court, Howrah
for disposal. The appellate court vide its judgement dated 24th April 2014
was pleased to allow the said appeal after setting aside the judgment and
decree passed by the learned Trial Court and sent back the suit on remand
to the Trial Court for hearing afresh the Misc. case no. 5 of 2000.
5. Being aggrieved by the aforesaid judgment of remand, passed by the
first appellate court the appellant/plaintiff have preferred this Misc. Appeal
before this court. While admitting the Misc. Appeal this court was pleased to
formulate following substantial questions of law :-
(i) Whether the Ld. Judges in the courts below, substantially
erred in law in not considering the provisions of Articles 97 of
the Limitation Act, which says that the period of Limitation to
Pre-empt a property is one year?
(ii) Whether the ld. Judge in the lower appellate Court
substantially erred in law in not considering that the
application for pre-emption under Section 4 of the Partition Act
was barred by limitation in view of Article 97 of the Limitation
Act?
DECISION
6. At the outset it is to be mentioned that learned Trial Court rejected
defendants prayer for pre-emption filed under section 4 of the Partition Act
stating that in the instant case the sale was effected on 11.04.1997 and the
Trial Court observed that Article 97 provides that the period of limitation to
pre-empt the property is one year, which runs from the time when the
purchaser takes physical possession of the property. In that view of the
matter the right of pre-emption ought to have exercised within 11.04.1998.
Since the prayer for pre-emption was filed long after one year and since
there was no prayer for condonation of delay, the Trial Court rejected
defendant's prayer for pre-emption with further observation that pre-
emption right being a weak right, should have filed ordinarily within the
prescribed period of a limitation.
7. Learned Appellate Court did not agree with said observation and
relying upon a judgment reported in 72 CWN 128 (Birendra Nath Banerjee
Vs. Smt. Snehalata Devi & Ors.) observed that an application of pre-
emption under Section 4 of the Partition Act can be made at any stage of the
suit and the law of limitation does not apply in such case and accordingly
she set aside the Trial Court's judgment and remanded the case for disposal
of the application of pre-emption filed by Subuddhi Bhajan afresh and if
defendant's pre-emption case fails, the decree passed by Trial Court will be
affirmed.
8. Before going to further details let me reproduce Section 4 of the
Partition Act
Section 4. Partition suit by transferee of share in dwelling-house.
(1) Where a share of a dwelling-house belonging to an undivided family has
been transferred to a person who is not a member of such family and such
transferee sues for partition, the court shall, if any member of the family being a
shareholder shall undertake to buy the share of such transferee, make a
valuation of such share in such manner as it thinks fit and direct the sale of
such share to such shareholder, and may give all necessary and proper
directions in that behalf.
(2) If in any case described in sub-section (1) two or more members of the family
being such shareholders severally undertake to buy such share, the court shall
follow the procedure prescribed by sub-section (2) of the last foregoing section.
9. In view of the aforesaid provision of law it is quite clear that for the
applicability of Section 4 at any stage of the proceeding the following
condition must be satisfied as held by Apex Court in Ghantesher Ghosh vs.
Madan Mohan Ghosh and others reported in AIR 1997 Supreme court
471 (Para 4).
(i) A Co-owner having undivided share in the family dwelling
house should effect transfer of his undivided interest therein;
(ii) The transferee of such undivided interest of the co-owner
should be an outsider or stranger to the family;
(iii) Such transferee must sue for partition and separate possession
of the undivided share transferred to him by the concerned co-
owner;
(iv) As against such a claim of the stranger transferee, any member
of the family having undivided share in the dwelling house
should put forward his claim of pre-emption by undertaking to
buy out the share of such transferee; and
(v) While accepting such a claim for pre-emption by the existing co-
owner of the dwelling house belonging to the undivided family,
the Court should make a valuation of the transferred share
belonging to the stranger transferee and make the claimant co-
owner pay the value of the share of the transferee so as to
enable the claimant co-owner to purchase by way of pre-
emption the said transferred share of the stranger transferee in
the dwelling house belonging to the undivided family so that
the stranger transferee can have no more claim left for partition
and separate possession of his share in the dwelling house
and accordingly can be effectively denied entry in any part of
such family dwelling house.
10. In the said judgment the Apex Court has also reiterated the object of
the said Act which is to prevent the introduction of any foreign element into
the group of the family members and its aim is to maintain homogeneity in
respect of the entire family. The object of such a right being the avoidance of
a disagreeable stranger and to prevent the intrusion of stranger into the
family residence which is allowed to be possessed and enjoyed by the
members of the family alone inspite of the transfer of a share to the stranger.
11. In the instant case there is no dispute about fulfilment of the aforesaid
conditions for filing a pre-emption Misc case by the defendant /pre-emptor.
The only dispute that has been raised by the appellant is that plaintiff
purchased undivided 2/3 share of the property on 11.04.1997 and
defendant no 2 filed written statement on 20.06.1998, opposing partition
suit and long thereafter on 27.01.2000, he filed Misc. case seeking pre-
emption under section 4 of the Partition Act and as such the prayer for pre-
emption is whether barred under article 97 of the Limitation Act. Article 97
of the limitation act runs as follows:-
To enforce a right of One year When the purchaser takes
preemption whether the under the sale sought to be
right is founded on law or impeached, physical
general usage or on special possession of the whole or
contract. part of the property sold,
or, where the subject
matter of the sale does not
admit of physical
possession of the whole or
part of the property, when
the instrument of sale is
registered.
12. It is no longer res integra that an application for preemption under
section 4 of the Partition Act can be made at any stage, of partition suit so
long the entire partition decree is not satisfied. It is only when the decree
engrossed on stamp paper, the joint title of the parties comes to an end and
the parties ceases to be a co-sharer. In Bimalendu Chatterjee and others.
vs. Sarita Chhyajlani and others reported in (C.O 1374 of 2000), a co-
ordinate bench of this court observed in paragraph 25, 26, 27 as follows:-
25. A final decree for partition takes effect not from the moment of passing of
decree but from the time such decree is engrossed on stamp papers. Once it is
so engrossed, the new separate title relates back to the date of passing of
decree. No execution can be started unless the decree is so engrossed. Thus,
after a decree is drawn up on stamp papers, the joint title of the parties comes
to an end and the parties cease to be co-sharers. Now it is settled by the Apex
Court in the case of Ghantesher vs. Madan Mohan (supra) that the application
under section 4 of the Act can be filed for the first time in the execution
proceedings if a stranger tries to take possession. The fact that an execution
case has been filed necessarily follows that the decree has been engrossed on
stamp papers and consequently it implies that by that time the erstwhile co-
sharers have acquired separate title.
26. Thus, in the aforesaid decision, the Apex Curt has approved the position
that even after co-sharers have become separate in title they can maintain an
application for pre-emption. All that is necessary is that the decree for partition
must not be fully satisfied.
27. Therefore, even if the petitioners are in possession of their respective
allotments, so long the entire decree is not satisfied they can maintain such
application if a stranger purchaser tries to take possession in execution of the
final decree for partition.
13. In an old judgment passed by a Divisions Bench of this court in
Nirankar Sashi Roy and another vs. Swarganath Banerjee, reported in
AIR 1926 Cal 95, while interpreting the terms "court" appearing in section
4 of the Partition Act observed that the word "court" is not confined to the
Trial Court, but the power conferred by the section may be exercised by an
appellate court and therefore, a Court of Appeal is as much entitled to pass
an order under section 4 as the Trial Court and the right conferred by
section 4 may be exercised at any time before the final allotments take place.
14. In the subsequent decisions the same consistent view was expressed
by Apex Court and the High Courts. In Birendra Nath Banerjee vs. Sneha
Lata Devi and another, reported in AIR 1968 Cal 380, it was observed in
paragraph 14 as follows:-
14. Of the above again, the decision in 49 Cal LJ 136 : (AIR 1929 Cal 269)
(supra) may also be taken as an authority for the proposition that in regard
to such an application, the right arises from day-to-day, while the partition
suit is pending, and no matter that the application has been made beyond
three years of the date of the preliminary decree, it will still be in time. This is
with regard to the second contention of the opposing respondents. The right
of pre-emption under the aforesaid statutory provision is a right, given by the
statute, and on its wording, it subsists so long as the suit remains pending,
or, in other words, so long as the suit has not been concluded or terminated
by an effective final decree for partition. In the instant case, applying the
above test, the plea of limitation in respect of the application must be
rejected. The contesting respondents' second objection, also, to the
appellant's above application must, accordingly, be overruled. That view will
also be supported, by the decision of this Court in (1882) ILR 8 Cal 420.
15. In Ghantesher Ghosh case (supra) the Supreme Court approved the
same view in paragraph 17 which runs as follows:-
17. As a result of the aforesaid discussion, it must be held that Section 4 of
the Act can validly be pressed in service by any of the co-owners of the
dwelling house belonging to the undivided family pending the suit for partition
till final decree is passed and thereafter even at the stage of execution of the
final decree for partition so long as the execution proceedings have not
effectively ended and the decree for partition has not been fully executed and
satisfied by putting the shareholders in actual possession of their respective
shares. Beyond that stage, however, Section 4 will go out of commission.
16. In Sharada Verma vs. Dilip Gupta and others, reported in (2000)
10 SCC 560 Supreme Court observed that an application under section 4 is
maintainable even at the execution stage.
17. Since it is well settled in view of aforesaid judicial pronouncements
that right of pre-emption under section 4 of the Partition Act is a right given
by the statute, on its wording, it subsists so long as the suit remains
pending or the suit has not been concluded or terminated by an effective
final decree of partition. An application under section 4 of the partition act,
can only be made in a pending partition suit for which the cause of action
arose upon institution of a partition suit and such a cause of action being a
recurring one, the provision of Article 97 of the Limitation Act cannot have
any application therein. On a bare reading of Article 97 of the Limitation Act
it is clear that it speaks of an independent preceding for pre-emption and as
such it cannot have any application in a prayer for pre-emption made under
Section 4 of the Partition Act, which can only be made in a pending partition
suit.
18. In Madhukar Pranjivan and others vs. Jagmohan Narottam and
others, reported in 1986 (1) CLJ 241 the same question arose before a
Coordinate Bench of this court and relying upon the case of Birnedra Nath
Banerjee (supra) this Court is of clear view that in regard to an application
for pre-emption the right arises from day to day, while the partition suit is
pending and no matter that the application has been made beyond 3 years
of the date of preliminary decree, it will still be in time. In other words right
of pre-emption under section 4 subsists so long as the suit remains pending
and has not been concluded or terminated by an effective final decree for
partition.
19. The applicability of Section 97 of the Limitation act in an application
under Section 4 of the Partition Act in a pending partition suit, again came
up for consideration before this court in Soumen Paul vs. Babulal Rojha
and others reported in 2002(1)CHN 398, where it was held in paragraph
6,7,8,9 as follows :-
"6. Upon close scrutiny of section 4 it appears that for the purpose of
invoking the right f pre-emption by a co-sharer the following conditions must
exist (a) there must be a dwelling house belonging to an undivided family,
(b) a share thereof has been transferred to a person who is not a member of
such family (c) the transferee has sued for partition. In the absence of any
of these conditions the provision of the said section is not attracted. The
said section therefore on it's face has it's applicability only in the partition
suit and on its terms does not prescribed for any time frame for invoking the
provisions thereof.
7. At the same time the law of limitation being the rules of procedure
operates to bar the remedy but it cannot extinguish the right itself. The
section 4 of the Partition Act confers a right on any member of a family
being a shareholder of a dwelling house belonging to an undivided family to
buy back a share of such a dwelling house which has been transferred to
a person who is not a member of such family. In terms of the said section
such right of pre-emption can be invoked only after a suit for partition is
instituted and not before that. The Division Bench of this court ih a decision
reported in 72 CWN 128 (Birendra nath Banerjee vs. Smt. Snehalata Devi &
Ors.) held in paragraph 12 of the said report that it is well settled now that
an application for pre-emption under section 4 of the partition Act can be
made at any stage of the suit or, in other words, at any stage, while the
suit is pending. Furthermore, in that case the suit was treated as pending
as because an appeal against the final decree passed in the suit was
pending. In the said judgment it was further held that the decision reported
in 49 CLJ 136, (smt. Sattyavama Dey Vs. Jatindra Mohan Dev & Ors.) is an
authority for the proposition that in regard to an application for pre-emption
under section 4 of the Partition Act, the right arises from day to day while
the partition suit is pending and no matter that the application has been
made beyond three years of the date of the preliminary decree, it will still
be in time.
8. it was further held in the said judgment that the right of pre-emption
under the aforesaid statutory provision is right, given by the statue, and on
its wording, it subsists so long as the suit remains pending, r, in other
words so long as the suit has not been concluded or terminated by an
effective final decree for partition.
9. On the analogy of the principle that the right of pre-emption under section
4 of the Partition Act is exercisable in a pending partition suit at any stage,
the rules of procedure as per Article 97 of the Limitation Act will have no
application in relation to an application for pre-emption in the pending
partition suit. Because the right of pre-emption under section 4 is not lost by
the fact that the stranger purchaser has obtained possession of the whole
or part of the property sold to him as the said section 4 does not make any
difference for the purpose of its application, whether the transferee is in
possession of the dwelling house or not. The substantive right of pre-
emption conferred by the statute being thus irrespective of delivery of
possession in favour of the stranger purchaser and exercisable in a pending
partition suit, the bar of such remedy under Article 97 of the Limitation Act
cannot have application so long the partition suit is pending. Thus, an
application under section 4 of the said Act if made in a pending partition
suit, for which the cause of action arose upon institution of such a partition
suit and such a cause of action being a recurring one pending such partition
suit, the provision of Article 97 of the Limitation Act cannot have any
application therein".
20. In view of aforesaid consistent observation in connection with
the applicability of Article 97 of the Limitation Act in a pre-emption
proceeding, initiated in a partition suit, I am of the firm opinion that
the court below is absolutely justified in passing the order impugned
dated 24.04.2014. The order impugned dated 24.04.2014 is affirmed.
21. In such view of matter F.M.A 3390 of 2014 stands dismissed.
There will be no order as to costs.
Urgent Photostat certified copy of this judgment, if applied for, be supplied
to the parties upon compliance with all requisite formalities.
(AJOY KUMAR MUKHERJEE, J.)
