{"id":180018,"date":"2000-10-17T00:00:00","date_gmt":"2000-10-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/gautam-paul-vs-debi-rani-paul-and-ors-on-17-october-2000"},"modified":"2017-11-14T12:59:34","modified_gmt":"2017-11-14T07:29:34","slug":"gautam-paul-vs-debi-rani-paul-and-ors-on-17-october-2000","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/gautam-paul-vs-debi-rani-paul-and-ors-on-17-october-2000","title":{"rendered":"Gautam Paul vs Debi Rani Paul And Ors on 17 October, 2000"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Gautam Paul vs Debi Rani Paul And Ors on 17 October, 2000<\/div>\n
Bench: V.N. Khare, S.N. Variava<\/div>\n
           CASE NO.:\nAppeal (civil)  5942 of 2000\n\nPETITIONER:\nGAUTAM PAUL\n\nRESPONDENT:\nDEBI RANI PAUL AND ORS\n\nDATE OF JUDGMENT: 17\/10\/2000\n\nBENCH:\nV.N. KHARE & S.N. VARIAVA\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
 2000 Supp(3) SCR 733<\/p>\n
The Judgment of the Court was delivered by S.N. VARIAVA, J. Leave granted.\n<\/p>\n
This Appeal is against an Order dated 11th September, 1998 passed by the
\nHigh Court of Calcutta.\n<\/p>\n
Briefly stated the facts are as follows :\n<\/p>\n
One Dr. Jonoranjan Paul was the owner of premises No. 14-C, Sambhu Lane,
\nCalcutta-14. This three-storied building is hereinafter referred to as suit
\nproperty. The said Dr. Jonoranjan Paul had six sons, namely, Satish, Kiron,
\nBiren, Nilratan, Nirmal and Bimol. During his life time the said Jonoranjan
\nPaul had sold the suit property to one Dr. Trollukya Nath Ghosh. After the
\ndeath of Dr. Trollukya Nath Ghosh the suit property went to his heirs. The
\nheirs executed a Gift Deed dated 2nd June, 1947. By this they gifted the
\nsuit property to Nilratan Paul, Nitrogen Baran Paul and Bimal Chandra Paul.
\nAs stated above, Nilratan Paul and Bimal Chandra Paul were two sons of
\nJonoranjan Paul. Nirode Baran Paul was the son of Kiron Chandra Paul.\n<\/p>\n
Nilratan Paul’s share went to his son Bejoy Ratan Paul. On 25th February,
\n1957 Bejoy Ratan Paul sold his share in the property to Nirode Beran Paul.
\nEven though Bijoy Ratan Paul sold his share to Nirode Baran Paul he
\ncontinued to staty in one room in the premises. By a Deed of Partition
\nexecuted on 25 June, 1957 Bimal Chandra Paul took property at 14 S.B. Lane.
\nThe suit property came to Nirode Baran Paul.\n<\/p>\n
Nirode Baran Paul died on 7th February 1965. On his death his mother Naras
\nNandini Paul, his wife Debi Rani Paul and his daughter Radha Rani Paul each
\ngot a 1\/3 share in the property. The 1\/3 share of mother Naras Nandini Paul
\nwent to her sons Banwari Lal Paul, Barid Baron Paul and daughter Elbhuti
\nPaul. They each got a l\/9th share. It is thus that Bibhuti Paul got a l\/9th
\nshare in the suit property. The l\/9th share of Banwari Lal Paul went to his
\nson Sujit Paul and three daughters Gita, Chabi and Rubi, They each got a
\nl\/36th share in the suit property.\n<\/p>\n
The Appellant is the son of Bejoy Ratan Paul. As stated above, even though
\nBejoy had sold his share to Nirode, he continued to occupy one room in the
\nsuit property. After the death of his father Appellant continued to stay in
\nthat room. On 3rd December, 1988 Appellant purchased the l\/9th Share of
\nBibhurt Paul in the suit property. He then also occupied the room which had
\nearlier been occupied by Bibhuti Paul.\n<\/p>\n
Debi Rani Paul and Radha Rani Paul (wife and daughter of Nirode) filed Suit
\nNo. 4 of 1989 against Bibhuti Paul (Defendant No. 1) Gautam Paul (Defendant
\nNo. 2), Sujit, Gita, Chabi and Rubi (Defendant 3 to 6 respectively). The
\nsuit was for partition of suit property. In this suit a declaration was
\nalso sought that the sale by Bibhabati Pal in favour of Goutam Paul was
\nillegal and void and not binding on the Plaintiffs. In this suit an
\napplication was made under Section 4 of Partition Act. The Plaintiffs
\nsought to buy over the share of Bibhuti Paul, which had been sold to Goutam
\nPaul.\n<\/p>\n
On 27th August 1992 the Trial Court passed a preliminary decree for
\npartition. It was declared that the Plaintiffs had 7\/9th share in this
\nProperty. It also held that Goutam Paul had l\/9th share in the property.
\nThe Trial Court kept the proceeding under Section 4 of the Partition Act
\npending, to be decided later on after recording evidence.\n<\/p>\n
Being aggrieved, by their application under Section 4 of the Partition Act
\nnot having been decided, the Plaintiffs (i.e. Respondents 1 and 2 herein)
\nfiled a First Appeal, which was ultimately numbered as 152 of 1993. This
\nAppeal was allowed by the impugned judgment dated 11th September, 1998. By
\nthis judgment the preliminary decree for partition has been upheld. It has
\nalso been held that Respondents 1 and 2 are entitled to pre-empt under
\nSection 4 of the Partition Act. It is held that the Appellant (herein) is
\nnot a member of the family. It is held that, as the sale is to a person who
\nwas not a member of the family, Respondent Nos. 1 and 2 were entitled to
\npurchase over the share which had been sold to the Appellant.\n<\/p>\n
Mr. S.B. Sanyal submitted that Kiron Chandra Paul and Nilratan Paul were
\ntwo sons of Jonoranjan Paul. He submitted that they belonged to one family.
\nHe pointed out that Respondents (1 and 2) were the wife and daughter of
\nNirode Baran Paul (who was the son of Kiron Chandra Paul) whereas the
\nAppellant was the grand son of Nilratan Paul. He submitted that Section 4
\ncontemplates a sale to an absolute outsider, who has no connection with the
\nfamily. He submitted that a sale to a member of the family cannot be
\npreempted under section 4.\n<\/p>\n
Mr. Sanyal relied upon the case of Ghantesher Ghosh v. Madan Mohan Ghosh
\nand Others,<\/a> reported in [1996] 11 SCC 446. In this case it has been held
\nthat before Section 4 can be invoked the following conditions must be
\nfulfilled viz.\n<\/p>\n
(1)     A co-owner having undivided share in the family dwelling house
\nshould effect transfer of his undivided interest therein;\n<\/p>\n
(2)    The transferee of such undivided interest of the co-owner should be
\nan outsider or stranger to the family;\n<\/p>\n
(3)     Such transferee must sue for partition and separate possession of
\nthe undivided share transferred to him by the co-owner concerned.\n<\/p>\n
(4)    As against such a claim of the stranger transferee, any member of
\nthe family having undivided share in the dwelling house should put forward
\nhis claim of pre-emption by undertaking to buy out the share of such
\ntransferee; and<\/p>\n
(5) While accepting such a claim for pre-emption by the existing co-owner
\nof the dwelling house belonging to the undivided family, the court should
\nmake a valuation of the transferred share belonging to the stranger
\ntransferee and make the claimant co-owner pay the value of the share of the
\ntransferee so as to enable the claimant co-owner to purchase by way of pre-
\nemption the said transferred share of the stranger transferee in the
\ndwelling house belonging to the undivided family so that the stranger
\ntransferee can have no more claim left for partition and separate
\npossession of his share in the dwelling house and accordingly can be
\neffectively denied entry in any part of such family dwelling house.\n<\/p>\n
It is also held that Section 4 has been enacted for the purpose of
\ninsulating the domestic peace of members of undivided family occupying a
\ncommon dwelling house from the encroachment of a stranger transferee of the
\nshare of one undivided co-owner as the remaining co-owners are presumed to
\nfollow similar traditions and mode of life and to be accustomed to
\nidentical likes and dislikes and identical family traditions. It is held
\nthat the scheme seeks to protect the family members from the onslaught on
\ntheir peaceful joint family life by stranger-outsider to the family who may
\nbe having different outlook and mode of life including food habits and
\nother social and religious customs. It is held that entry of such outsider
\nin the joint family dwelling house is likely to create unnecessary
\ndisturbances not germane to the peace and tranquillity not only of the
\noccupants of the dwelling house but also of neighbours residing in the
\nlocality. It is held that keeping these object in view the right flowing
\nfrom Section 4 cannot be restricted in its operation only up to the final
\ndecree for partition. It is held that crystallization of share may take
\nplace but separation and partition take place only by actual division by
\nmetes and bounds and delivery of possession of respective shares to the
\nrespective shareholders. It is held that this can be achieved only at the
\nstage of execution of the final decree. It is held that only after
\nexecution, separation and partition the court would become functus officio.
\nIt is held that the provisions of Section 4 would, therefore, be available
\nat all stages of the litigation till the litigation reaches its terminus by
\nmeans of full and final discharge and satisfaction of the final decree for
\npartition. It is held that if a stranger transferee enters the arena of
\ncontest at any stage and seeks to get his share separated he can be said to
\nbe suing for partition and separate possession with in the meaning of
\nSection 4. It has been held that such a transferee may come on the scene
\nprior to the final decree or he may come on the arena of contest even in
\nexecution proceedings as a transferee of the decretal right. It is held
\nthat in either eventuality it would be said that such a stranger is suing
\nfor partition.\n<\/p>\n
Mr. Sanyal also relied upon the case of Kshirode Chunder Ghosal v. Saroda
\nProsad Mitra, reported in XII Calcutta Law Journal 526. In this case it is
\nheld.\n<\/p>\n
“The term “family” is not defined in the Partition Act, and we do not think
\nthat it would be possible or desirable to frame a comprehensive formula or
\nexhaustive definition to indicate all that is easily understood by the term
\n” family.” As was well observed by Kindersley, V.C. in Green v. Marsden,
\n(1953) 1 Drewry 646 (651), 61 E.R. 598, the word “family” is, in itself, a
\nword of a most loose and flexible description. It is, in fact, as Wickens
\nV.C. said in Burt v. Hellyar, (1872) L.R. 14 Eq. 160, a popular and not a
\ntechnical expression, and its meaning is often controlled by the context.
\nAs is pointed out in the Oxford Dictionary, Vol. IV, page 55, although the
\nterm “family” is sometimes used to include those descended or claiming
\ndescent from a common ancestor, it has, very often, a much wider import; it
\nis often used to indicate a body of persons formed by those who are merely
\nconnected by blood or affinity; it is sometimes used to include even a body
\nof persons who live in the house or under on head. In the case of Wilson v.
\nCochran, (1869) 31 Texas 677, 98 Am. Dec. 553, the matter was put clearly
\nand concisely as follows: “The term family embraces a collective body of
\npersons living together in one house or within the curtilage. In legal
\nphrase, this is the generic description of a ‘family’. It embraces a house-
\nhold comprised of parents or children or other relatives or domestic
\nservants, in short, every collective body of persons living together within
\nthe same curtilage, subsisting in common, and directing their attention to
\na common object, the promotion of their mutual interests and social
\nhappiness. This is the most popular acceptation of the word.” The
\ndescription herein suggested may, perhaps, be deemed, in some respects, too
\nwide. But one thing is, in our opinion, beyond dispute. The word “family”,
\nas used in the Partition Act, ought to be given a liberal and comprehensive
\nmeaning, and it does include a group of persons related in blood, who live
\nin one house or under one head or management. There is nothing in the
\nPartition Act, to support the suggestion that the term “family” was
\nintended to be used in a very narrow and restricted sense, namely, a body
\nof person who can trace their descent from a common ancestor.”\n<\/p>\n
Mr. Sanyal also relied upon the case of Paluni Del v. Rathi Mallick and
\nOrs., reported in AIR 1965 Orissa 111. In this case the question was
\nwhether a married daughter, who was residing with her husband at some other
\nplace, could be said to be a member of the family. It was held that the
\nword “family” as used in the Partition Act must be given a liberal and
\ncomprehensive meaning and should include a group of persons related in
\nblood, who live in one house or under one head or management. It is held
\nthat there is nothing in Partition Act to support the suggestion that the
\nterms “family” was intended to be used in a very narrow and restricted
\nsense, namely, a body of persons who trace their descent from a common
\nancestor. It was held that it is not necessary that the terms “dwelling
\nhouse” belonging to an undivided family should include a house where a
\ngroup of persons related by blood live and that it was not necessary that
\nthey should descend from a common ancestor or should constantly reside in
\nthe dwelling house or that they should be joint in mess so long as the
\nmembers of the family have not abandoned their intention to reside in it.\n<\/p>\n
Relying on the above authorities Mr. Sanyal submitted that the common
\nancestor was Jonoranjan Paul. He submitted that from the beginning the
\nAppellant has been residing in the suit property along with his father
\nBejoy Ratan Paul. He submitted that the Appellant was residing in the suit
\nproperty as a member of the family. He submitted that Respondent Nos. 1 & 2
\nwere also members of the same family. He submitted that under these
\ncircumstances it could not be said that the Appellant was a stranger or
\noutsider. He submitted that, therefore, the High Court was wrong in holding
\nthat the Appellant was not a member of the family. He submitted that the
\nimpugned judgment was required to be set aside on this ground.\n<\/p>\n
Mr. Sanyal further submitted that in any event Appellant had at no stage
\n“sued for partition”. He submitted that as the Appellant had not sued for
\npartition Section 4 could not be invoked. He submitted that, even on this
\ncount, the High Court was wrong in allowing the Plaintiff to pre-empt by
\npurchasing the share of the Appellant.\n<\/p>\n
As against this Mr. Gupta submitted that Section 4 can be invoked if a
\nshare in the dwelling house belonging to an undivided family has been
\ntransferred to a person who is not a member of such family. He submitted
\nthat admittedly this dwelling house belonged to members of the family of
\nNirode Baron Paul. He submitted that it was admitted that Bejoy Ratan Paul
\nhad sold his share to Nirode Baron Paul. He submitted that a sale to a
\nperson who was not a member of the family of Nirode Baron Paul would be a
\nsale to a person who was not a members of such family. He submitted that
\nSection 4 would thus become applicable. He submitted that the High Court
\nhad correctly held that the Appellant could not be considered a member of
\nsuch family.\n<\/p>\n
Mr. Gupta admitted that the Appellant had not filed any suit for partition.
\nHe submitted that it was not necessary that the outsider or a stranger
\nshould actually file a suit for partition. He submitted that in any suit
\nfor partition, whether filed by the outsider or by a member of the family,
\nthere would be partition and then a division by metes and bounds. He
\nsubmitted that each sharer would become entitled to receive possession of
\nhis share. He submitted that in a suit for partition, the position of all
\nparties is inter-changeable. He submitted that separate allotment can be
\nclaimed by any party irrespective of whether he was plaintiff or Defendant.
\nHe submitted that if a stranger is a Defendant, in a suit for partition,
\nthen irrespective of whether he asks for a separate allotment or not, any
\nco-sharer can claim a right for pre-emption under Section 4 to the
\nPartition Act.\n<\/p>\n
In support of his submission he relied upon the authority of Special Bench
\nof the Calcutta High Court in Siba Prosad Bahttacharyya and Others v.
\nBibhuti Bhusan Bhattacharjee and another, reported in AIR 1989 Calcutta 35.
\nHe points out that this authority has upheld the consistent view of the
\nCalcutta High Court. In this case it has been held that Section 4 must be
\nliberally construed in favour of the co-sharers of an undivided family
\ndwelling house. It has been held that the co-sharer has a right to buy the
\nshare of the stranger irrespective of the fact that the stranger is a
\nPlaintiff or a Defendant. It has been held that in a partition suit the
\nparties are interchangeable. It is held that in a suit for partition it
\nmakes no difference whether a party is Plaintiff or Defendant. It is held
\nthat a party, whether a plaintiff or Defendant, can claim a share in the
\ndwelling house. It has been held that the expression “to sue” would include
\nnot only ” to prosecute” but also “to defend”. It is also held as follows:
\n‘<\/p>\n
“The object of Section 4 is to prevent the disintegration of the family
\ndwelling house by preventing to introduce stranger therein. The stranger is
\nadequately compensated by the market, value of the property purchased so
\nthat dwelling house of the family be preserved. The view that it must be
\nstrictly construed and that until and unless the stranger either sues for
\npartition as a plaintiff or asks for separate allotments as defendant (sic)
\nbe accepted then the whole object of Section 4 would be frustrated. In a
\nsuit for partition parties are interchangeable. The defendant can, at any
\ntime before the decree for partition is finally passed, ask for separate
\nallotment. The right under Section 4 is available to the co-share as soon
\nas a preliminary decree is passed. The defendant may frustrate the right of
\nthe co-sharer to buy out the share by not asking for separate allotment up
\nto the last moment. The possibility cannot be ruled out that after the co-
\nsharer’s right of pre-emption u\/s 4 is rejected on the ground that the
\ndefendant has not asked for separate allotment, the defendant could ask for
\nseparate allotment. In this way if the view of Netai Boss’s case be
\naccepted great injustice will be caused to the co-share of an undivided
\nfamily dwelling house.”\n<\/p>\n
It must be mentioned that in the above mentioned case it was noted that a
\nsimilar view was also taken in the case reported in AIR (1937) Nag. 4, AIR
\n(1950) Pat 317 & AIR (1971) Orissa 127. It was also noted that a contrary
\nview has been taken in the cases reported in AIR (1957) All 356, AIR (1922)
\nBom 121 and AIR (1950) Mad 214.\n<\/p>\n
Mr. Gupta submitted that the Calcutta High Court has consistently taken
\nthis view. He points out that the impugned judgment is by the Calcutta High
\nCourt. He submits that it thus could not be said that there was any error
\nin the judgment.\n<\/p>\n
Mr. Gupta also relied upon the Ghantesher Ghosh case (supra). He submitted
\nthat this case also lays down that Section 4 operates at all stages of the
\nlitigation even up to the execution proceedings. He submitted that in
\nGhantesher Ghosh’s case a decree had already been passed. Thereafter a
\nstranger purchaser applied for execution of that decree. He points out that
\nthis Court held that even though it was in execution the provisions of
\nSection 4 would apply. He submitted that in every partition suit there is
\nbound to be a division of the property by metes and bounds and a separation
\nof the shares. He submitted that the object of Section 4 is to ensure that
\nno outsider comes to a dwelling house even though the outsider is merely a
\nDefendant in the suit. He submitted that if a contrary view is taken then
\non a partition the outsider is bound to get a share and take possession of
\nthat share. He submitted that that would defeat the laudable object of
\nSection 4. He submitted that object would be achieved only if the other co-
\nsharers are entitled to preempt and purchase over the share of the
\nstranger, so long as the stranger is a party to the suit for partition.\n<\/p>\n
We have heard the parties and considered the rival submissions. In this
\nAppeal the main questions which arise for consideration are:-\n<\/p>\n
(a)    Whether the Appellant could be said to be a member of the family
\nwithin the meaning of Section 4 of the Partition Act? and<\/p>\n
(b)    Whether in the absence of the transferee suing for partition  a
\nshareholder can invoke Section 4 and buy over such share?\n<\/p>\n
For a consideration of these questions it would be appropriate to set out,
\nat this stage, Section 4 of the Partition Act. Section 4 reads as follows:\n<\/p>\n
“4. Partition suit by transferee of share in dwelling-house, -(1) Where a
\nshare of a dwelling-house belonging to an undivided family has been
\ntransferred to a person who is not a member of such family and such
\ntransferee sues for partition, the court shall, if any member of the family
\nbeing a shareholder shall undertake to buy the share of such transferee,
\nmake a valuation of such share in such manner as it thinks fit and direct
\nthe sale of such share to such shareholder, and may give all necessary and
\nproper directions in that behalf, (emphasis supplied)<\/p>\n
(2) If in any case described in sub-section (1) two or more members of the
\nfamily being such shareholders severally undertake to buy such share, the
\ncourt shall follow the procedure prescribed by subsection (2) of the last
\nforegoing section.”\n<\/p>\n
A mere perusal of this Section shows that for its applicability the
\nconditions as set out in Ghantesher Ghosh case (Supra) have to be
\nfulfilled.\n<\/p>\n
Let us now consider whether the sale to the Appellant by Bibhuti Paul can
\nbe said to be a sale to an outsider or a stranger to the family.
\nUndoubtedly, Section 4 should be given a liberal interpretation. However
\ngiving a liberal interpretation does not mean that the wordings of the
\nSection and the clear interpretation thereof be ignored. The relevant
\nwordings are “dwelling-house belonging to an undivided family”. Thus it
\nmust be dwelling house belonging to an undivided family. The further
\nrequirement is that the transfer must be to a person who is not a member of
\n“such family”. The words “such family” necessarily refers to the undivided
\nfamily to whom the dwelling house belongs. In this case the undivided
\nfamily is not the undivided family of Jonoranjan Paul. Admittedly the
\nundivided family which owns the dwelling house is the undivided family of
\nNirode Baron Paul. It is not Appellant’s case that he is a member of the
\nundivided family of Nirode Baron Paul. In the case relied upon by Mr.
\nSanyal the persons concerned were members of the family to whom the
\ndwelling house belonged. In the case the Appellant, not being a member of
\nthe family of Nirode Baron Paul cannot be said to be a member of the
\nundivided family to whom the dwelling house belongs. Merely because he is
\nrelated by blood through a common ancestor i.e. Jonaranjan Paul does not
\nmake him a member of the family within the meaning of the term as used in
\nSection 4. To that extent the High Court was right in coming to the
\nconclusion that the sale was not to a member of the family.\n<\/p>\n
The next question is whether it can be said that the Appellant had sued for
\npartition. Undoubtedly the decisions of the Calcutta High Court in
\nBhattacharyya case (supra) and the cases reported in AIR (1937) Nag. 4, AIR
\n(1950) Pat 37 and AIR (1971) Orissa 127, support the interpretation sought
\nto be placed on Section 4 by Mr. Gupta however, as noted above there is
\nconflict of opinion between the various High Court on this point. The cases
\nreported in AIR (1957) All 356, AIR (1922) Bom, 121 and AIR (1950) Mad 214
\ntake a contrary view. In our view for reason set out hereinafter the
\nopinion held by the Calcutta, Patna and Orissa High Court is not correct
\nand cannot be sustained. It must be mentioned that this Court has in the
\ncase of Babu Lal v. Hablnoor Khan, reported In AIR [2000] 5 SCC 662 already
\nconsidered the correctness of the view taken in AIR 1971 Orissa High Court
\ntook the same view as the Calcutta High Court. This Court held as follows
\nin respect of the view taken by the Orissa High Court:\n<\/p>\n
“If the ratio of the aforesaid decision is held to take the view that a
\nstranger-purchaser who does not move for partition of the joint property
\nagainst the remaining co-owners either as a plaintiff or even as successor
\nof the decree-holder seeks execution of the partition decree can still be
\nsubjected to Section 4 to the Partition Act proceedings, then the said view
\nwould directly conflict with the decision of this Court in Ghantesher Ghosh
\ncase and to that extent it must be treated to be overruled.”\n<\/p>\n
We are in agreement with this opinion.\n<\/p>\n
There is no law which provides that co-sharer must only sell his\/her share
\nto another co-share. Thus stranger\/outsiders can purchase shares even in a
\ndwelling house. Section 44 of the Transfer of Property Act provides that
\nthe transferee of share of a dwelling house, if he\/she is not a member of
\nthat family, gets no right to joint possession or common enjoyment of the
\nhouse. Section 44 adequately protects the family members against intrusion
\nby an outsider into the dwelling house. The only manner in which an
\noutsider can get possession is to sue for possession and claim separation
\nof his share. In that case Section 4 of the Partition Act comes into play.
\nExcept for Section 4 of the Partition Act there is no other law which
\nprovides a right to a co-sharer to purchase the share sold to an outsider.
\nThus before the right of pre-emption, under Section 4, is exercised the
\nconditions laid down therein have to be complied with. As seen above one of
\nthe conditions is that the outsider must sue for partition, Section 4 does
\nnot provide the co-sharer a right to preempt where the stranger\/outsider
\ndoes nothing after purchasing the share. In other words, Section 4 is not
\ngiving a right to a co-sharer to pre-empt and purchase the share sold to an
\noutsider anytime he\/she wants. Thus even though a liberal Interpretation
\nmay be given, interpretation cannot be one which gives a right which the
\nLegislatures clearly did not intend to confer. The Legislature was aware
\nthat in Suit for Partition the stranger\/outsider, who has purchased a share
\nwould have to be made a party. The Legislature was aware that in a Suit for
\nPartition the parties are inter-changeable. The Legislature was aware that
\na Partition Suit would result in a decree for Partition and in most cases a
\ndivision by metes and bounds. The Legislature was aware that on an actual
\ndivision, like all other co-sharers, the stranger\/outsider would also get
\npossession of his share. Yet the Legislature did not provide that the right
\nfor pre-emption could be exercised ” In any Suit for Partition”. The
\nLegislature only provided for such right when the “transferee sues for
\npartition”. The intention of the Legislature is clear. There had to be
\ninitiation of proceedings or the making of a claim to partition by the
\nstranger\/outsider. This could be by way of initiating a proceeding for
\npartition or even claiming partition in execution. However, a mere
\nassertion of a claim to a share without demanding separation and possession
\n(by the outsider) is not enough to give to the other co-sharers a right of
\npre-emption. There is a difference between a mere assertion that he has a
\nshare and a claiming for possession of that share. So long as the
\nstranger\/purchaser does not seek actual division and possession, either in
\nthe suit or in execution proceedings, it cannot be said that he has sued
\nfor partition. The Interpretation given by the Calcutta, Patna, Nagpur and
\nOrissa High Courts would result in nullifying the express provisions of
\nSection 4, which only gives a right when the transferee sues for partition.
\nIf that interpretation were to be accepted than in all cases, where there
\nhas been a sale of share to an outsider, a co-sharer could simply file a
\nsuit for partition and then claim a right to purchase over that share. Thus
\neven though the outsider may have, at no stage, asked for partition and for
\nthe delivery of the share to him, he would be forced to sell his share. It
\nwould give to a co-sharer a right to pre-empt and purchase whenever he\/she
\nso desired by the simple expedient of filing a Suit for Partition. This was
\nnot the intent or purpose of Section 4. Thus the view taken by Calcutta,
\nPatna, Nagpur and Orissa High Courts, In the aforementioned cases, cannot
\nbe said to be good law.\n<\/p>\n
In this case we have seen the written statement and the additional written
\nstatement filed by the Appellants. We have also seen the evidence given by
\nthe Appellants. At no stage has the Appellant asked for partition or
\ndemanded possession of his share. All that he has claimed, which he was
\nbound to and entitled to, is that he has a l\/9th share in the property.
\nUnder these circumstances, the High Court was wrong in allowing the
\nRespondents 1 and 2 to exercise a right of pre-emption under Section 4 of
\nthe Partition Act. In this case, the condition of a transferee suing for
\npartition had not been fulfilled.\n<\/p>\n
In this view of the matter the impugned judgment requires to be and is set
\naside. The decree of the Trial Court dated 27th August, 1992 is restored
\nexcept that the application under Section 4 shall now stand dismissed as
\nbeing premature. Respondents 1 and 2 are at liberty to apply to the Trial
\nCourt, if they so desire for a final decree of Partition. We however
\nclarify that if at any stage the Appellant applies for partition and for
\nseparation and possession of his share Respondents 1 and 2 and\/or any other
\nco-sharer will still entitled to move under Section 4 of the Partition Act.\n<\/p>\n
The Appeal stands disposed off accordingly. There will be no order as to
\ncosts.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Gautam Paul vs Debi Rani Paul And Ors on 17 October, 2000 Bench: V.N. Khare, S.N. Variava CASE NO.: Appeal (civil) 5942 of 2000 PETITIONER: GAUTAM PAUL RESPONDENT: DEBI RANI PAUL AND ORS DATE OF JUDGMENT: 17\/10\/2000 BENCH: V.N. KHARE & S.N. VARIAVA JUDGMENT: JUDGMENT 2000 Supp(3) SCR 733 The Judgment […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-180018","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nGautam Paul vs Debi Rani Paul And Ors on 17 October, 2000 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/gautam-paul-vs-debi-rani-paul-and-ors-on-17-october-2000\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Gautam Paul vs Debi Rani Paul And Ors on 17 October, 2000 - 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