DASARATHI CHAKROBORTY Vs. SOMENATH BANERJEE

JUDGEMENT

(1.) -One Brojobala Chakraborty, claiming to be purchaser of 1/4th share from one of the four sons of the absolute owner of the suit property, instituted Title Suit No. 97 of 1958, in the 7th Court of the learned Assistant District Judge at Alipore for partition impleading therein two sons of the sole owner and the auction purchaser of the share of one of the four sons. The present petitioners 1 to 7 and petitioner No. 8 before this Court are the heirs of the original plaintiff and the auction purchaser mentioned above. The said suit was ultimately decreed in preliminary form, inter alia, declaring the right of defendant No. 2 to purchase (pre-empt) the share of the plaintiff and the then defendant No. 3. In compliance with the preliminary decree the defendant No. 2 filed an application for pre-emption, which was registered as Misc. case No. 59 of 1963. Thereafter, from time to time, different Commissioners were appointed for determination of valuation of the respective shares of the parties but due to absence of finality of Commissioner's report upto the year 1987, the plaintiffs filed an application for partition by metes and bounds, and, by order No. 300 dared 6.2.1988 a pleader Commissioner was appointed in terms of prayer of the plaintiffs. After passing of the said order, on or about 14th June, 1990, the defendants, opposite parties 1-3, filed an application under section 151 of the Code of Civil Procedure, inter alia, for modification and/or recalling of the aforesaid order No. 300 dated 6.2.88 and for a direction upon the pleader Commissioner for ascertaining the valuation of the shares of the respective parties and by the impugned order No. 340, dated 16th September, 1991, order No. 300 was modified by directing the pleader Commissioner to ascertain the valuation of the shares of the respective parties, instead of effecting partition of the suit property.

(2.) Before us the only point which has been urged on behalf of the petitioners is that the Court below had no jurisdiction and/or acted with material irregularity and illegality in the exercise of the jurisdiction in directing valuation of the shares of the parties in terms of the order dated 19th May, 1965, which valuation must relate to and be based on the present market value.

(3.) We have, therefore, been called upon to fix up the valuation date for the purpose of exercise of right of pre-emption as granted under the preliminary decree. It is well settled by series of judicial authorities that the sale in implementation of a right of pre-emption under section 4 of the Partition Act is a forced sale and as such the Court is required to be alert and careful in the matter of determination of the value of the share pre-emptible in compliance with section 4 of the Partition Act, so that no injustice is inflicted on either the pre-emptor or the pre-emptee. The legislative intent is to prevent intrusion of stranger into a joint family dwelling house. It is also well settled that such a right of pre-emption, exercisable against the stranger purchaser, subsists till the termination of the suit and long pendency of a suit for partition is a common feature, which has also been taken into consideration by judicial authorities in directing valuation of the respective shares on the basis of market value. Reference in this connection may be made to the cases of Subol v. Gostho (60 CWN 829 at 824); B. N. Banerjee v. Snehalata Devi (72 CWN 128) and Gopal v. Kalipada (AIR 1987 Cal 210).