GOPAL CHANDRA MITRA Vs. KALIPADA DAS

JUDGEMENT

(1.) The only question that has arisen for our consideration in this appeal is what should be the relevant date with reference to which the Court shall make a valuation under S.4(1) of the Partition Act, 1893. Under the first paragraph of S.44 of the Transfer of Property Act, if a co-owner of an immovable property transfers his share, the transferee thereby acquires the transferor's right to joint possession and also his right to enforce partition. But the second paragraph of that Section, however, provides that if the property transferred is a share in a dwelling-house belonging to an undivided family and the transferee is not a member of that family, then the transferee does not acquire any right to joint possession and all that he acquires by such transfer is only a right to enforce partition. But as a result of S.4 of the Partition Act even that right to enforce partition may be reduced almost to a bare right to sue without a right to the share as that Section provides that in a suit for partition, whether by or against such transferee, any member of that undivided family having a share in the dwelling-house may undertake to buy the transferred share and that on such undertaking having been made, "the Court shall..........make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder" member. In a sense, therefore, S.4 of the Partition Act goes a long way to take away what para 2 of S.44 of the Transfer of Property Act purports to give to the transferee.

(2.) As already indicated, the only question involved in this appeal is what should be the relevant date with reference to which "the Court shall make a valuation of such share" under S.4(1) of the Partition Act before directing under that Section the re-sale thereof to the shareholder-member who has undertaken to purchase the same. The provisions of S.4(1) are reproduced hereunder for the facility of discussions : -

(3.) The words "and such transferee sues for partition" may, at the first blush, give rise to the impression that S.4 would come into play only when such transferee as a plaintiff sues for partition. But in a partition suit, every party thereto, whether arrayed as a plaintiff or a defendant, in effect sues for as well as is also sued for partition and therefore the Section would operate even when the transferee does not initiate or proceed with the suit for partition as a plaintiff but is proceeded against as a defendant. This is now the settled law as has been pointed out by a Division Bench of this Court in its decision in an earlier proceeding arising out of the suit giving rise to this present proceeding and which has since been reported in Santosh v. Kalipada, AIR 1981 Cal 278 at p. 280. Now, when such a suit for partition is filed to which the transferee is a party. S.4(1), as quoted above, contemplates three steps for its invocation and compliance- (a) an undertaking by a member-shareholder to purchase the share of the transferee, (b) a valuation of such share made by the Court in such manner as it thinks fit, (c) an order by the Court directing the sale of such share to such shareholder. All that a member -shareholder is to do is to undertake to buy the share of the transferee and once that is done, it would then be for the Court to make the valuation and to direct sale. Though the member-shareholder can enforce resale of the share by the transferee only after an order directing such resale is made by the Court, his right to acquire the property nevertheless accrues to him on his making the undertaking to purchase and once a valid and legally competent undertaking to purchase is made by the member-shareholder, he has nothing more to do to obtain the valuation and the direction to resale and those would follow almost as a matter of course as, in view of the words "the Court shall" in S.4(1), the Court does not appear to have any option in the matter. That being the position it would be quite reasonable to hold that the valuation of the share is to be made with reference to the date when the member-shareholder has undertaken to buy the share transferred. This also, in effect, appears to be the view of Bagchi, J. in his separate but concurring judgement in the Division Bench case in Surendra Nath v. Ram Chandra, (1971) 75 Cal WN 195 at p. 215 where the learned Judge has held that the market value of the share as obtaining on the date of application under S.4 of the Partition Act is to be taken into consideration for the purpose of valuation. The same also appears to be the considered view of Monjula Bose, J., in Monomohan v. Usharani, AIR 1979 Cal 79 at p.83 where the learned Judge has held that the valuation should be made as on the date when an undertaking is given by the member shareholder to buy the share in question.