MITHILESH THAKUR Vs. RADHA DEVI

JUDGEMENT

(1.) THIS appeal is directed against the judgment passed in Title Appeal No. 9 of 1997 by the 2nd Additional District Judge, Darbhanga, whereby he has partly allowed the appeal on contest against the plaintiffs, who are the appellants before this Court. It has been held that the respondents -appellants are entitled to buy the share of the plaintiffs -respondent 1st party on the valuation to be fixed by the learned court below at the prevailing rate in the manner prescribed under section 4 of the Partition Act (hereinafter referred to as 'the Act ').

(2.) ACCORDING to the learned counsel for the appellants, the lower appellate court has erred in law in partly allowing the appeal and reversing that part of the judgment of the trial court whereby the claim of the respondents under section 4 of the Act was rejected. It is submitted that in the absence of formal application giving undertaking, the lower appellate court is not legally justified in holding that the respondent is entitled to buy the share of the plaintiffs -respondent 1st party on the valuation to be fixed by the court below at prevailing rate in the manner prescribed under section 4 of the Act. In support of this he placed reliance on the decision of the Apex Court in the case of R. R. Iyer vs. R.V. Rao, reported in AIR 1973 SC 643: (1973) 1 SCR 904 and of this Court in the case of H.N. Mukharjee vs. Shyam Sunder Kuer, reported in AIR 1973 Patna 142: 1973 PLJR 20 and in the case of L.B.Sao vs. IbnulIah, reported in 1980 (28) BLJR 48:1979 PLJR 555 including the decision of the Apex Court in the case of Hurmat Bibi vs. Probash Kumar Bajpayee, reported in 1988 (Supp) SCC 507.

(3.) THE Supreme Court in the case of Hurmat Bibi vs. Prodosh Kumar Bajpayee (supra), while dealing with object of section 4 of the Act, in paragraph 9, has held that "...The object of Section 4 is to enable the members of a family to buy out a strange transferee from one of the members, who seeks partition of dwelling house. Section 4 was enacted having in mind the consideration of corporate property existing as a rule with special reference to joint property and social desire to preserve the unity of such property. It was also enacted with a view to maintain indivisibility and integrity of the property" and, thus, in the facts and circumstances, the Apex Court held that even if a family member co -sharer once fails to purchase snare of a strange transferee, a second application under section 4 filed by the co - sharer or his successor -in -interest for purchase of such share is maintainable.