Brahm Dev Narang vs Mr. Satyajeet Narang & Anr.
1999 Latest Caselaw 1120 Del

ORDER

Mohd. Shamim, J.

1. This is a suit for partition and for permission to purchase the share of defendant No. 2.

2. Brief facts which gave rise to the present suit are as under : that late Shri S.L. Narang purchased plot No. 112, 'K' Block, Hauz Khas, New Delhi, ('the disputed property' for short) measuring 500 sq. yards from DLF Housing and Construction Pvt. Ltd., on November 12, 1956 vide sale deed dated April 16, 1959. Later on the deceased Shri S.L. Narang gifted away the said plot of land to Shri Brahm Dev Narang i.e., the plaintiff, and to the grand son Shri Satyajeet Narang son of Shri S.D.Narang, defendant No.1, to be shared by them in two equal portions, vide gift deed dated March 31, 1967. However, no demarcation of the shares of the parties to the present suit was done through the said gift deed. Shri Satyajeet Narang i.e., defendant No.1 was a minor at the time of the gift. The plaintiff Shri Brahm Dev Narang and defendant No.1 who was a minor at that time, through his father and natural guardian Shri S.D. Narang, executed a lease deed in favour of Shri S.L. Narang. The said lease deed was executed in order to enable Shri S.L. Narang to construct a residential house on the said plot since the plaintiff and defendant No.1 were residents of Bombay. Shri S.L. Narang as per the terms of the said lease deed got constructed a residen-

tial house on the disputed property. After the completion of construction the disputed property was let out on a monthly rent of Rs.1600/- to Department of Adult Education during the period from June 1, 1970 to June 1, 1972. Thereafter the disputed property was let out to National Book Trust on a monthly rent of Rs. 1400/- during the period from December 1972 to 1983. The disputed premises remained vacant during the period from 1984 to 1987. The disputed property was got repaired by the plaintiff as the same badly needed repairs at a cost of Rs. one lac. The plaintiff spent the said amount from his own pocket. Thereafter the suit property was given on rent to an officer of United Nations on a monthly rent of Rs. 6,000/- with the consent of both the parties i.e., the plaintiff and defendant No.1. The said officer still continues in occupation of the disputed property. The property in suit was got mutated in the joint names of the parties to the present suit as is manifest from the letter dated May 8, 1980 from Municipal Corporation of Delhi to both the parties in the present suit. Defendant No.1 in October 1987 wanted to sell one half share in the above said property as he was in straightened circumstances and needed some money. Having come to know with regard to the intention of defendant No.1 to sell his share the plaintiff offered Rs.11 lacs by way of consideration for the share of defendant No.1. In fact, he filed an affidavit before the Income Tax Authorities at Bombay with regard to his willingness to purchase the share of defendant No.1 for a consideration of Rs.11 lacs. Defendant No.1 on account of family differences refused to sell his share in the suit property to the plaintiff. He thus sold his share for a total consideration of Rs. 4 lacs to defendant No. 2 on January 5, 1988. The plaintiff under Section 4 of the Partition Act has a pre-emptive right to purchase the share of a cosharer i.e., defendant No.1. The disputed property is capable of partition by metes and bounds. The plaintiff repeatedly offered to buy the share of defendant No.1 at a price higher than the price paid by defendant No. 2 to defendant No.1. Defendant No. 2, the alleged transferee of half portion of the disputed property, is trying to secure the possession over his half share. Defendant No. 2 has got no right under law to interfere with the peaceful possession of the plaintiff. The plaintiff being a family member and joint owner of the premises in suit has got a pre-emptive right to purchase the half portion of the premises belonging to defendant No.1 under Section 4 of the Partition Act. Defendant No.1 is trying to induct a stranger into the dwelling house by the above said illegal sale. It has thus been prayed that a decree for partition of the suit premises in two equal shares i.e., of the plaintiff and defendant No.1 be passed. It has further been prayed that the Court may fix a value of the share of defendant No.1 which is being sold to defendant No. 2 and the plaintiff undertakes to buy the share of defendant No.1 at the above said valuation so fixed.

3. Defendant No.1 has resisted the claim of the plaintiff, inter alia, on the following grounds: that defendant No.1 is neither a necessary nor a proper part inasmuch as he has already sold his un-divided share in the suit property to defendant No. 2 by a sale deed date January 5, 1988. After the execution of the aforesaid sale deed by defendant No.1 in favour of defendant No. 2 the defendant No. 2 has become owner of half portion of the disputed property. He has no interest; whatsoever, in the disputed property. Hence there is no question of partition between the plaintiff and defendant No.1. It is wrong and false that the repairs of the disputed property were carried out by the plaintiff at his own expense. The fact is that defendant No. 2 always contributed to the amount whatever was spent by the plaintiff on repairs. The suit is false and frivolous and is liable to be dismissed.

4. Defendant No. 2 has put in contest and has traversed all the averments through his written statement. The defense as set up by defendant No. 2 in his written statement is that it is wrong and false that the disputed property is a dwelling house belonging to an undivided family within the meaning of Section 4 of the Partition Act. Hence the plaintiff has got no pre-emptive right under Section 4 of the Partition Act to purchase the share of defendant No.1. The plaintiff and defendant No.1 have always been separate in mess prior to the acquisition of the property in suit. The plaintiff and defendant No.1 have their own separate residential houses at Bombay. The plaintiff has been residing in his own house i.e., Flat Nos. 2 and 3, Anufa North South Road No.1, Juhu Parle Scheme, Juhu, Bombay for the last 25 years whereas defendant No.1 has been residing separately with his family members in his house bearing No.70, Vithal Nagar, North South Road No.12, Juhu, Bombay. They have got their separate business and avocations since then. The plaintiff and defendant No.1 have never resided in the suit property at Delhi after its construction. In fact, the disputed property was got constructed for being let out to tenants as is manifest from the plaint itself. The parties to the present suit i.e., plaintiff and defendant No.1 do not constitute an un-divided family. They do not have any intention to settle in Delhi. It is wrong and false that any major repairs were carried out in the suit premises at any point of time. It is also wrong and false that the repairs were carried out by the plaintiff alone and that, too, at the cost of Rs. one lac and the plaintiff bore the entire expenses. It is also wrong and false that the plaintiff at any point of time had offered Rs.11 lacs to defendant No.1 by way of consideration to purchase his half share. The suit is false and frivolous. It is liable to be dismissed.

5. Since the shares of the parties were admitted in the pleadings, a preliminary decree for partition was passed by the learned predecessor of this Court vide Order dated May 29, 1998.

On the pleadings of the parties, the following issues were framed :

1. Whether the premises in dispute is a dwelling house belonging to an undivided family as stated in para 1 of the preliminary objection of the written statement?

2. Whether the plaintiff is entitled to a decree of partition? If so, its effect?

3. To what relief is the plaintiff entitled?

4. Whether the suit is not maintainable for the reasons given out in para 1 of the written statement filed by defendant No. 2 ('Preliminary Objections)?

6. All the above issues are inter-connected and as such common questions of law and facts are likely to arise while disposing them of, it would, thus, be convenient and also just and proper to dispose them of together.

7. Since we are concerned with the construction of Section 4 of the Partition Act the provisions of the said section can be adverted to with profit before proceeding any further in the matter. It is in the following words :-

"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 share-holder 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 share-holders severally undertake to buy such share, the Court shall follow the procedure prescribed by sub-section (2) of the last foregoing section."

8. The foundation for the enactment of Section 4 of the Partition Act was laid while framing Section 44 of the Transfer of Property Act. Hence in order to fully understand the implications of the said section, it would be advisable and profitable to cast a glance on Section 44 of the Transfer of Property Act which envisages as under :-

"44. Transfer by one co-owner. -Where one of two or more coowners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires, as to such share or interest, and so far as is necessary to give effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting, at the date of the transfer, the share of interest so transferred.

9. Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family nothing in this section shall be deemed to entitle him of joint possession or that common or part enjoyment of the house."

10. It is manifest from above that Section 44 of the Transfer of Property Act permits the transfer of a share in an undivided property to any person and the transferee on transfer would acquire an interest and a share in the property in proportion of the transfer in the said property and later on he can claim joint possession of the said property or even can enforce a partition of the same. However, there is an embargo on the right of a transferee to claim joint possession in case he is a stranger and the dwelling-house is the property of an undivided family. Section 44 of the Transfer of Property Act did not give any right to the member of an undivided family to purchase the share so transferred to a stranger at a price to be fixed by the Court. This right was conferred on the member of an undivided family by the legislators in their wisdom through the enactment of Section 4 of the Partition Act subsequently in the year 1893. The objects and reasons for the enactment of th Partition Act were as under :-

"It is also proposed in the Bill to give the Court the power of compelling a stranger who has acquired by purchase a share in a family dwelling-house when he seeks for a partition, to sell his share to the members of the family who are the owners of the rest of the house at a valuation to be determined by the Court. This provision is only an extension of the privilege given to such shareholders by Section 44, paragraph 2 of the Transfer of Property Act, and is an application of a well-known rule which obtains among Muhammadans everywhere and by customs also among Hindus in some parts of the country."

11. The underlying idea behind the enactment of Section 4 of the Partition Act was to maintain peace and tranquility in the family which was likely to be disturbed if a stranger was inducted into the dwelling-house by a member of the family through the sale of his share. It was also meant to prevent the fragmentation and sub-division of the property into smaller units. A close scrutiny of Section 4 of the Partition Act would reveal that a person who wants to take advantage of the said provision of law must show the followings for its applicability :-

(a) there must be a dwelling-house belonging to an undivided family;

(b) a portion of the same has been transferred to a stranger;

(c) the said transferee sues for partition; and

(d) one of the co-owners in the property must be willing to purchase the share so transferred to a stranger on a valuation to be fixed by the Court.

12. With the above background let us now see as to how far the plaintiff herein has succeeded in making out a case under Section 4 of the Partition Act.

13. Learned counsel for the plaintiff Mr. Prag Tripathi has contended that there is no dispute with regard to the fact that the disputed property is an un-divided property in between the plaintiff and defendant No.1. Defendant No. 2 who is contesting the claim of the plaintiff has also conceded this fact and in fact a partition decree was passed by this Court vide order dated May 29, 1998 in between the parties to the present suit. There is also no gain-saying the fact that the disputed property is a dwelling unit inasmuch as the same is being used for residential purpose. Admittedly defendant No. 2 who has purchased the share of defendant No.1 in the disputed property is a stranger. The plaintiff herein has given out his willingness to purchase the share of defendant No.1 which has been transferred to defendant No. 2 at a valuation to be fixed by this Court.

14. In view of the above learned counsel for the plaintiff has argued that all the ingredients which are necessary for the application of Section 4 of the Partition Act are present. Hence there is no reason, whatsoever, as to why the plaintiff should be deprived of the benefit of Section 4 of the Partition Act.

15. Learned counsel for defendant No. 2 Mr. Dinesh Garg, on the other hand, has urged that the plaintiff in the instant case has miserably faild to put forward even in the plaint the basic components which will bring into play the provisions of Section 4 of the Partition Act. According to the learned counsel it has nowhere been pleaded in the plaint that the disputed property is a dwelling-house of an undivided family. The fact is that the plaintiff and defendant No.1 have always been separate from one another. In fact they have been living at two different places in Bombay. They have got their separate business. The plaintiff and defendant No.1 have never resided in the disputed property since the time of its construction. The disputed property has always been in occupation of tenants. The plaintiff and defendant No.1 have got absolutely no intention to live in the disputed property and even in Delhi. Thus the plaint is lacking in the above material particulars. Hence the same is liable to be rejected and flung to the winds on this short ground alone.

16. I am sorry I am unable to agree with the contention of the learned counsel for the defendant. The plaintiff has stated in unequivocal terms that the disputed property is an undivided property (vide paras 4,5,6,9 and 10 of the plaint). It has further been stated that it is a dwelling unit and a dwelling-house (vide paras 13,15 and 18 of the plaint). Thus all the essential ingredients which are necessary for the applicability of Section 4 of the Partition Act are there in the plaint.

17. It is a well settled principle of law that the parties are under no obligation to use in their pleadings the actual words of a particular provision of law. It is sufficient if the essential features find a mention therein in their own language and words. The object of the pleadings is to tell the opposite party the case which he is going to meet. If the opposite party has fully understood the implications of the case of the plaintiff in a given case and has put forward his defense accordingly in that eventuality he cannot be allowed to raise the defense with regard to the fact that the plaint is lacking in material particulars.

18. The above view was given vent to by the Hon'ble Supreme Court as ......" The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should settle the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction; no pedantic approach should be adopted to defeat justice on hair-splitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law. In such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. ......Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceed to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal."

19. Admittedly in the instant case defendant No. 2 herein is fully aware and has come to know from the plaint the case of the plaintiff and he has tried to meet the same through his written statement. Thus he cannot be permitted to raise the defense that the plaint lacks in material particulars and should be rejected on this ground alone.

20. It has been urged for and on behalf of defendant No. 2 that the disputed property was got constructed for tenants only. The intention of the parties was to have additional income by way of rent. There was no intention to use the disputed property for residential purposes. This fact is manifest from even the plaint itself (para 6). According to the learned counsel this is not the case of the plaintiff that he ever resided in the disputed property inasmuch as there is no such averment in the plaint. Consequently the disputed property cannot be said to be a dwelling unit within the domain of Section of the Partition Act. Hence the plaintiff cannot be permitted to purchase the share of defendant No.1 which has already been sold to defendant No. 2

21. Learned counsel for the defendant in support of his argument has led me through quite a good number of authorities. It was observed by a Single Judge of the Calcutta High Court in Durgapada Pai Vs. Debi das Mukherjee and Others, ....."The extreme view put forward by the Orissa High Court was not accepted by the decisions of this Court as we have noted above. To this it also has to be taken in consideration that stray use of the property for short residence for specific purpose will not make such property a dwelling house as contemplated in Section 4A dwelling house connotes to some extent a permanent abode of the undivided family where such family resides or intends to reside generally and not a house for stray short or temporary residence for specified purpose." The same view was given vent to by a Single Judge of the Patna High Court as reported in Abinash Chandra Chakravarty Vs. Smt. Kamala Devi, .

The learned Single Judge while relying on the observations of a Single Judge of Rangoon High Court as reported in J.C. Chaterjee Vs. Maung Mye, IR 1940 Rangoon 53, observed as under (Vide para 10) ...." From his evidence it further appears that the house in suit had been in occupation of tenants. Thus, it is clear that the house in suit was not the dwelling house of the plaintiff."

(Para 11) " Mr. Banerji on behalf of the defendant-respondent contended that the expression "dwelling house belonging to an undivided family" refers to the family dwelling house and not to any house or building for human dwelling belonging to an undivided family. He relied in this connection on the case of - J.C. Chatterji Vs. Maung Mye, AIR 1940 Rang. 53(G). I agree with Mr. Banerji and hold that it has not been established in this case that the house in question is a "dwelling house belonging to an undivided family" within the meaning of Sec. 4(1), Partition Act."

22. To the same effect are also the observations of a learned Single Judge as reported in Janakiammal and others Vs. P.A.K.Natarajan and others, ..." The view taken by the learned Judge that a house which was completely let out to tenants could fall within the terms 'dwelling house belonging to an undivided family' found in Sec. 4 T.P. Act was not supported by any authority as the learned Judge himself pointed out in that case. Though it is not necessary for me to do so in this case. I have to express my disagreement with the ratio of that decision."

23. The above view also finds support from the observations as reported in Govindji Dosa Vs. Kanji Mavji, AIR (39) 1952 Kutch 14, and in Manick Lal Singh Vs. Gouri Shankar Shah, .

24. I am sorry I am unable to agree with the contention canvassed by learned counsel for the defendant. I would also beg to differ from the authorities alluded to and reproduced above.

25. It is a well recognised principle of construction that where the language of a statute is plain and clear without any ambiguity therein then it should be interpreted as it is, and not as it ought to be without adding anything thereto or substracting anything therefrom. In such a case it is needless even to find out the intention of the legislature which lay behind the enactment of the said provision of law. It is manifest from Section 4 of the Partition Act adverted to above, that the legislators in their wisdom have abstained from using the word 'family' preceding 'dwelling house'. They have contented themselves by simply using the word 'dwelling house'. The only condition laid down therein is that it must be belonging to the members of an undivided family. Thus to read therein a dwelling house which is being used for residential purposes or has been used for residential purposes would be stretching the language, too far, and reading therein some thing which is not there. Thus to my mind it would not be necessary to find out that it is being used for residential purposes by the family members or at any point of time it was being used for residential purposes. What is necessary is to see as to whether it is a dwelling house or not irrespective of the fact whether the same is being used for residential purposes by the tenants.

26. I am supported in my above view by the observations of a Single Judge of the Madras High Court as reported in S.S. Subramanya Sastry Vs. Sheik Ghannu and Others ......." But it is a cardinal principle of interpretation of statutes that we must first look to the words of the statute itself and if these words are plain it is not permissible to consider what was the intention of the statute, or its previous history of the law. Now the first point to be noted is that the section does not speak of "a family dwelling house" though from the commentary quoted one might almost suppose that it did. Nor does it say that the "Dwelling house" must be occupied either permanently or even occasionally by the undivided family. The world "dwelling house" has a perfectly wellknown and plain meaning and does not necessarily connote a dwelling house occupied by an un-divided family, who also own it. The legislature might uite easily have used the term "family dwelling house" if it had wished to do so but it contented itself with the simple word "dwelling house". So also the words "belonging to an undivided family" are quite un-qualified and do not per se at all import that the house must be occupied permanently, or even temporarily, by the undivided family. The only two requisites laid down in the proviso are (1) that the house must be a "dwelling house" (2) that it must belong to an undivided family. Both these requisites are satisfied in this case."

27. A Division Bench of the Calcutta High Court had an occasion to deal with the provisions of Section 4 of the Partition Act in Kalipada Ghosh Vs. Tulsidas Dutt and Others, . While doing so they observed as under (vide para 20): "Nevertheless, a dwelling house does not cease to be a dwelling house merely because of suspension of occupation or, for the matter of that absence of the owner therefrom or because of occupation or terminable occupation thereof by tenants. What is important under Section 4 of the Partition Act is that the house concerned should either be actually in use, though not in constant occupation by the owners as a residential house or that conditions should be such that it is still possible for them to return to the occupation of the house at some future date."

28. To the same effect are the observations of a learned Single Judge of the Allahabad High Court as reported in Rukmi Sewak and Others Vs. Mt. Munesari, .

29. The same view was again reiterated in Bhagwati Lal & Ors. Vs. Bhorelal & Ors. (para 34).

30. A matter very much akin to the matter in hand came up for interpretation before a learned Single Judge of the Madhya Pradesh High Court as reported in Laxman Prasad Chironjilal Vs. Babulal Ramlal and Another, 1968 M.P.L.J. 246, who after relying on the judgments as reported in Bhabani Vs. Ashok Kumar, ; Sushila Vs. J.B. Baral ; and Kalipada Vs. Tulasidas, , observed as under (vide para 8): "I must first consider whether the house in question is a dwelling house within the meaning of Section 4 of the Act. It is not denied by Shri Srape that the house is a residential accommodation and is habitable; the argument is that since it is in the occupation of tenants, at the moment, it is not a dwelling house. In my opinion, the criterion is not whether the house is actually occupied for residential purposes by the applicant who claims partition under section 4 of the Act. The house concerned should either be actually in use, though not constant use, as a residential house by its owners, or that it should be possible for them to return to its occupation at some future date."

31. Even the authority which has been cited for and on behalf of defendant No. 2 i.e., Tejpal Khandelwal & Ors. Vs. Mst. Purnima Bai & Ors., , does not take a view different from the one adverted to above. According to the facts of the said case a family shifted on being transferred from the dwelling house and let out the same to tenants. In the above circumstances the Division Bench while anim adverting on the concept of a dwelling house observed as under; "They shifted with their family members and tenanted the house to have rent, not to keep it vacant and to avoid incurring expenditure over the protection of the house. They did not abandon the idea of occupying it as a residential house as and when necessary. Despite the fact that the house is tenanted, it does not cease to be a dwelling-house. "From the facts and circumstances canvassed above, it is crystal clear that a house does not cease to be a dwelling house simply because it is on rent with certain tenants if the members of the family have got the necessary intention to occupy the same.

32. There is yet another aspect of the matter. It has been stated by the plaintiff in his replication that the plaintiff remained in actual occupa-

tion of the disputed property during the time he carried out repairs to the disputed property for a sufficiently long period as there was none to supervise the repairs [vide paras 1 (f) & (g) ]. The plaintiff has also stated in unequivocal terms [vide para 1(e) of the replication] that he is now interested to settle in Delhi as his daughter is married in Delhi. Thus it cannot be said that the plaintiff did not occupy the disputed property at no point of time. It cannot also be said that the plaintiff has got no intention to return to the disputed property or the condition of the dis-

puted property is such that it has become incapable of use and occupation by the plaintiff. Since the replication was filed under the orders of the Court dated July 21, 1989 and September 28, 1989, hence it would be deemed to be a part of the pleadings. To the same effect is the observation of a learned Single Judge of this Court as reported in Shri Mohd. Shafi Bakshi Vs. Smt. Krishna Bansal, 1993 III AD (Delhi) 289, (vide para 9).

33. The view which I am taking in the present case also finds support from the observations of the Hon'ble Supreme Court as reported in Ghanteshwar Ghosh Vs. Madan Mohan Ghosh & Others, 1996 (II) Supreme Court Cases 446 ( para 10),..." We have also to keep in view the avowed beneficial object underlying the said provision. Section 4 of the Partition Act read with Section 44 of the T.P. Act represents a well-knit legislative scheme for insulating the domestic peace of members of undivided family occupying a common dwelling house from the encroachment of a stranger transferee of the share or one undivided co-owner as the remaining co-owners are presumed to follow similar traditions and mode of life and to be accustomed to identical likes and dislikes and identical family traditions. This legislative scheme seeks to protect them from the onslaught on their peaceful joint family life by stranger-outsider to the family who may obviously be having different outlook and mode of life including food habits and other social and religious customs. Entry of such outsider in the joint family dwelling house is likely to create unnecessary disturbances not germane to the peace and tranquility not only of the occupants of the dwelling house but also of neighbours residing in the locality and in the near vicinity......"

34. It is manifest from above that the law is to be so interpreted as to fructify the purpose of the legislation and to frustrate the mischief.

Admittedly Section 4 of the Partition Act is a piece of social legislation.

It was enacted to maintain the privacy of a house which is so dear to the hearts of an average Indian that he will go to any extent to safeguard it.

In fact it is a part of our ethos. I am tempted here to cite from Goethe, a German Philosopher and poet." He is the happiest, he be a king or peasant who finds peace in his home." Thus if a stranger is allowed to enter a family dwelling house he would intrude upon the privacy and would disturb thereby the peace and tranquility. It would no more be a dwelling house. It would no more remain so and turn into a hell instead of a dwelling house.

35. In the above circumstances I am of the view that the disputed property is a dwelling house and the suit is maintainable. The plaintiff is entitled to succeed. Issues Nos. 1, 3 and 4 are decided accordingly. Issue No.2 has already been decided by the learned predecessor of this Court vide order dated May 29, 1998.

36. The plaintiff is thus entitled to succeed. The suit under Section 4 of the Partition Act is decreed with costs. The plaintiff is hereby permitted to purchase the property which has been sold to defendant No. 2 on a valuation to be fixed by this Court. As a sequel of the above order defendant No. 2 is hereby restrained from taking forcible possession or in any way interfering with the possession of the plaintiff over the disputed property. I.A. No. 8050/88 is disposed of accordingly.

37. Now the question which arises for determination is as to what should be the appropriate value of the disputed property? This Court is not in a position to determine the value without the assistance of an expert valuer. This is all the more so in the absence of requisite material in the form of evidence on the file of the Court. Hence Shri D.B. Bajaj, NP-151A, Maurya Enclave, Pitampura, Delhi-110034, (Tel Nos. 7116773, 9811020702), Approved Valuer, is hereby appointed to give his report with regard to the valuation of the disputed property at the time of the institution of the present suit i.e., in the year 1988. I am supported in my opinion by the observations of a Division Bench of the Orissa High Court as reported in Bhikari Behera Vs. Dharmananda Nitia and Others, ..." Moreover the wording of Section 4 also gives some guidance on this point. Section 4 contemplates a valuation to be fixed when the transferee files a suit for partition, and the Court has been given the discretion to make valuation of the share in such manner as it thinks fit. In my opinion in the absence of any decision to the contrary the plain meaning of Section 4 refers to the market value as ruling on the date of the suit and not on the date of sale. With a view to do justice to the parties, the valuation has to be made so as to be fair both to the stranger -purchaser as also to the co-sharer of the erstwhile undivided joint family."

38. The above view was also followed in Lal Kejriwal and Others Vs. Bhawanath Jha, ; and Mohomohan Saha Vs. Smt. Usha Rani Ghosh & Ors, . The valuer will fix his own remuneration in consultation with the parties. He would submit his report within three months from today. The expenses will be borne by both the parties in equal proportions.