Rishabh Kumar Jain vs Gyanchand Jain and Others

J.K. Maheshwari, J.—Being aggrieved by the order dated 20th December, 2010 passed by the XIX Additional District Judge, Jabalpur in M.J.C. No. 16/2010 rejecting the application under Order 20, Rule 18 read with sections 151 and 152 of CPC and also the application filed u/s 4 of the Partition Act, 1893, this revision has been preferred. Prior to discussion of the facts, it is necessary to indicate that the applicant was defendant No. 3 in the partition suit bearing No. 6-A/82 which was filed by Smt. Sumat Rani, Ku. Sadhna and Pramod Kumar being the legal heirs of Surkhichandra. The respondent Nos. 1 and 2 in the revision are the purchasers of the share of Naval Kishore to the extent of 1/3rd right, fallen to his share. It is required to be noted that Nonelal and Phoolchandra were the real brothers and they are the owners of house Nos. 23, 24, 25 and 26 situated in Lordganj, Jabalpur. A registered partition was entered into between them on 2-7-1948 thereby house Nos. 23 and 24 came in the share of Phool Chand and House Nos. 25 and 26 came in the share of Nonelal. Nonelal was having three sons, namely, Naval Kishore, Sunderlal and Surkhichandra. Naval Kishore transferred his 1/3rd share by executing a registered sale deed dated 7-8-1979. The suit was filed by three legal heirs of Surkhichandra for partition joining Naval Kishore, Sunderlal as well as the remaining LRs of Surkhichandra which was numbered as 6-A/82 wherein a preliminary decree of partition was passed on 9-7-1985. As per the said decree it was directed that all the three brothers Naval Kishore, Sundarlal and Surkhichandra were having equal 1/3rd share in the property belonging to Nonelal i.e. house Nos. 25 and 26 and the house Nos. 23 and 24 fell into the share of Phoolchand be divested to his legal heirs. It was held in para 23 of the judgment that the plaintiff as well as the legal heirs of Surkhichandra as well as Navalkishore and Sunderlal are having equal share of 1/3rd in house No. 25 and 26 but in the operative part of the decree it was mentioned that the aforesaid three persons would get 1/3rd share in house Nos. 24 and 25 in place of 25 and 26. After passing the preliminary decree, the Court after appointment of the Commissioner and received the report passed the final decree on 25-11-2008. In the final decree also house Nos. 24 and 25 were partitioned in between the legal heirs of Nonelal i.e. Naval Kishore, Surkhichandra and Sunderlal having 1/3rd equal share therein. Thereafter purchased i.e. respondents No. 1 and 2 who have purchased 1/3rd share of Naval Kishore filed execution proceedings before the executing Court seeking possession of the share of Naval Kishore which was transferred to them by registered sale deed dated 7-8-1979. During the pendency of said proceedings, the applicant has filed two applications one is under Order 20, Rule 18 read with sections 151 and 152 of CPC praying amendment in the preliminary decree for correction of house Nos. 25 and 26, in place of house Nos. 24 and 25 because the aforesaid mistake is inherent and goes to the root of decree and after receiving the Commissioner''s report afresh final decree by corrected. Another application was filed u/s 4 of the Partition Act seeking right of pre-emption to the extent of share of Naval Kishore with respect to house Nos. 25 and 26. Both the applications were rejected by the order impugned, however this revision has been filed.

Shri Jain, learned counsel appearing for the applicant referring various paragraphs of the plaint as well as the preliminary decree passed on 9-7-1985, submitted that house Nos. 25 and 26 had fallen in the share of Nonelal after partition in between Nonelal and Phoolchand and house Nos. 23 and 24 had fallen in the share of Phoolchand after a registered partition dated 2-7-1948. The trial Court while passing the preliminary decree in para 9 has recorded such finding and it is held that the said two houses shall be divided in equal 1/3rd share of plaintiff and defendant Nos. 3 and 4 and also defendant No. 1 and 2 as well as legal heirs of Naval Kishore and Sunderlal. The finding to that effect has been recorded in paras 17, 18 and 19. It is submitted by him that in para 23 while granting decree in place of house No. 25 it has been mentioned as house No. 24 and in place of house No. 26 it has been mentioned as house No. 25. However on passing a preliminary decree the Commissioner''s report has been received, but while passing the final decree on 24-11-2008 the aforesaid mistake has been continued. In such circumstances, prayed that after directing correction in the preliminary decree, it be directed that the corrected final decree be drawn after seeking a fresh report. It is further submitted that after passing a final decree the purchasers of 1/3rd share of Navalkishore have filed the execution proceedings seeking possession of the share to such extent wherein the application u/s 4 has been filed by the applicant who is the legal heir of Surkhichandra seeking right of pre-emption, however the aforesaid application ought to be allowed and the trial Court committed error by rejecting both the applications. In support of his contention, reliance has been placed on the judgment of Apex Court in the case of Ghantesher Ghosh vs. Madan Mohan Ghosh and others, (1996) 11 SCC 446. It is submitted that the application filed by the applicants u/s 4 ought to be allowed and right of pre-emption against purchasers may be directed and the Court should act accordingly. It is said that relying upon the said judgment in the case of Gautam Paul Vs. Debi Rani Paul and Others, , the Apex Court has reiterated the same view, therefore allowing the revision, the order impugned may be set aside.

Shri Khare, learned counsel appearing on behalf of respondents No. 1 and 2 has raised preliminary objection that after passing preliminary decree the application so filed by the applicant under Order 20, Rule 18 read with sections 151 and 152 of CPC is not maintainable. It is submitted by him that merely mentioning a wrong house number in the decree would not substantially affect the right of the parties because as per the registered partition dated 2-7-1948, the property situated in the red hedges as fallen in the share of Nonelal and that has been divided equally in 1/3rd share to Naval Kishore, Sunderlal and Surkhichandra. However, the report of Commissioner has been received with respect to the property indicated as ''A'', ''F'', ''T'' and ''U'', therefore even specifying the wrong house number in the preliminary decree would not substantially affect the parties because the partition has taken place with respect to the property which has fallen in the share of Nonelal indicated in red hedges. In view of the foregoing, it is urged that the interference at such a belated stage on an application filed by the applicant for correction of the preliminary decree and final decree is not warranted. So far as the right to pre-emption claimed by the applicant by filing application u/s 4 of the Partition Act is concerned, it is urged that the said application is not maintainable because during the pendency of the suit the legal heir of Sunderlal defendant No. 2 has filed application u/s 4 of the Partition Act wherein the litigation went up to Hon''ble the Apex Court and vide judgment dated 6th September, 2001 the application so allowed by the High Court was set aside in the light of the judgment of Gautam Paul (supra), however at this stage the application filed by the applicant is not tenable. It is further submitted that the applicant do not acquire any right to pre-emption at such a belated stage looking to the fact that such right is only available when the stranger has filed a suit. Reliance has been placed on a judgment of the Apex Court in the case of Babulal Vs. Habibnoor Khan (Dead) by LRs. and Others, . In view of the foregoing, prayer is made to dismiss the revision petition.

After hearing learned counsel for the parties and on perusal of the record, it is not in dispute that house Nos. 23, 24, 25 and 26 situated in Lordganj, Jabalpur were of the joint ownership of Nonelal and Phoolchand. It is also not in dispute that a registered partition was entered into on 2-7-1948 and house Nos. 23 and 24 had fallen into the share of Phoolchand and house Nos. 25 and 26 had fallen in the share of Nonelal. As per the said partition deed, the property which has fallen in share of Nonelal was shown in red hedges. It is also not in dispute that Navalkishore, Sunderlal and Surkhichandra were three sons of Nonelal and they are having 1/3rd equal share in the property. The suit for partition was filed by three legal heirs of Surkhichandra joined other legal Heirs as defendant Nos. 3 and 4 and also against Navalkishore and Sunderlal as defendant No. 1 and 2. In the said suit a preliminary decree of partition was passed vide judgment dated 9-7-1985. While deciding the said suit in paras 9, 15, 16 and 17 the trial Court observed that the plaintiff, defendant Nos. 3 and 4 and also defendants No. 1 and 2 are the legal heirs of Nonelal, However they are having equal share in the property of Nonelal which is of house Nos. 25 and 26 as indicated in the partition deed dated 2-7-1948 but in para 23 of the said judgment while passing the decree in place of house No. 25 it was mentioned as house No. 24 and in place of house No. 26 it was mentioned as house No. 25. Thus looking to the judgment of the trial Court in operative para the decree was passed with the respect to house Nos. 24 and 25 in place of house Nos. 25 and 26. After passing the said preliminary decree the Commissioner''s report was received that too relates to house Nos. 24 and 25 though in the said report it has been mentioned that the partition of the property which is indicated in red hedges has been made and accordingly a final decree was passed on 25-11-2008 indicating house Nos. 24 and 25 in place of house Nos. 25 and 26. The trial Court declined such objection merely because on a commission report the objection has not been filed and it has appeared that the partition of property has already taken place and shown in red hedges and the said mistake has been continued even up to the final decree. In the considered opinion of this Court as per the finding recorded in paras 9, 17 and 18 by the judgment dated 9-7-1985 where the preliminary decree was passed, it is apparent that house Nos. 25 and 26 are of the share of Nonelal and the said property indicated in red hedges has been partitioned in three shares in between Navalkishore, Sunderlal and the legal heirs of Surkhichandra. If by mistake the wrong house number has been mentioned in a decree then the trial Court was duty bound to correct such mistake exercising the powers conferred on him u/s 152 read with section 151 of CPC to secure the ends of justice and to prevent the abuse of process of law. It is not expected from the Court to continue with such mistake taking support of the Commissioner''s report particularly when a decree is to be passed with respect to a specific house number and the said house number has incorrectly been mentioned in the preliminary decree and also in the final decree, in such circumstances merely having a Commissioner''s report indicating the property of the red hedges would not be sufficient though in the Commissioner''s report the house number has been wrongly shown as 24 and 25. In the considered opinion of this Court, it will create the multiplicity of the proceedings and the parties may have an option to abuse the process of law; however, on having knowledge about the mistake, it is the duty of the Court to rectify such mistake even by its own motion. In this regard, reliance may be made on the decision of Apex Court in the case of Om Prakash Marwaha (D) thr. LRS. and Others Vs. Jagdish Lal Marwaha (D) thr. LRS., . In such circumstances, the rejection of the application under Order 20, Rule 18 read with sections 151 and 152 of CPC by the trial Court while passing the order impugned is wholly unsustainable in law and the argument of non-applicant is hereby repelled.

Now to deal the issue regarding rejection of application u/s 4 of the Partition Act, first of all the provisions contained u/s 4 is required to be reproduced which reads as follows:--

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

On perusal of the aforesaid, it is apparent that no express provision has been shown at which stage the application may be filed against the stranger transferee of the share of a erstwhile co-owner of dwelling house of undivided family and such an application can be maintained after passing a preliminary decree in a case where a dwelling house belong to an undivided family has been transferred to a person who is not the member of such family and such transferee sues for property. As per the case of Ghantesher Ghosh (supra) the Hon''ble Apex Court has held that for the applicability of section 4 of the Partition Act, it may be at any stage of the proceedings between the parties, and the following five conditions must be satisfied which read as follows:--

(1) A co-owner having undivided share in the family dwelling house should effect transfer of his undivided interest therein;

(2) The transferee of such undivided interest of the co-owner should be an outsider or stranger to the family;

(3) Such transferee must sue for partition and separate possession of the undivided share transferred to him by the co-owner concerned;

(4) As against such a claim of the stranger transferee, any member of the family having undivided share in the dwelling house should put forward his claim of pre-emption by undertaking to buy out the share of such transferee; and

(5) While accepting such a claim for pre-emption by the existing co-owner of the dwelling house belonging to the undivided family, the Court should make a valuation of the transferred share belonging to the stranger transferee and make the claimant co-owner pay the value of the share of the transferee so as to enable the claimant co-owner to purchase by way of pre-emption the said transferred share of the stranger transferee in the dwelling house belonging to the undivided family so that the stranger transferee can have no more claim left for partition and separate possession of his share in the dwelling house and accordingly can be effectively denied entry in any part of such family dwelling house.

In the said case it has further been observed that as per the Statement of Objects and Reasons indicating in the Partition Act especially section 4 makes it clear that the restriction imposed on a stranger transferee of a share of one or more of the co-owners in a dwelling house by section 44 of the Transfer of Property Act has further been extended by section 4 with a view to see that such transferee washes his hands off such a family dwelling house and gets satisfied with the proper valuation of his share which shall be paid to him by the preempting co-sharer or co-sharers, as the case may be. This right of pre-emption available to other co-owners u/s 4 is obviously in further fructification of the restriction on such a transferee as imposed by section 44 of the Transfer of Property Act. Section 4 requires for its applicability that such stranger transferee must sue for partition and only in that eventuality the rights of pre-emption envisaged by section 4 can be made available to the other contesting co-owners, The Court emphasizing the word "such transferee sues for partition" as employed in section 4 clarified the meaning of another words "transferee filing a suit for partition" referring the meaning of the word ''sue'' held that it indicates of preventive action. In the said context it has been held that the right of preemption if the purchaser sues for partition is available to the co-sharer and co-owners applying u/s 4 as envisaged therein. The said view has been reiterated by Hon''ble the Apex Court in the case of Gautam Patil (supra). The said view has been reiterated by the Apex Court in the case of Babulal (supra) so relied upon by the counsel for the respondents, in para 10 as well as in the case of Gautam Paul (supra). In the light of the aforesaid legal position the factual backdrop of this case is required to be analyzed.

In the present case, after passing a preliminary decree on 9-7-1985 and a final decree on 25-11-2008 purchasers who have purchase the property of Naval Kishore to the extent of 1/3rd share in the house Nos. 25 and 26 have applied for execution before the Executing Court on 18-1-2010. Thus it is apparent that on passing a decree of partition amongst the legal heir of Nonelal and after purchasing the share of one of the co-sharers, he has applied for the execution of the said judgment and decree of partition, it is required to be observed here that in a suit for partition the plaintiff may be treated as defendant and the defendant may be treated as the plaintiff. Navalkishore is one of the defendants and the respondents No. 1 and 2 are the purchasers of the share of Navalkishore, however falls within the purview of the phrase "transferee". After passing the decree of partition, the transferee by filing the execution proceedings prayed for the possession of the share which was purchased by them from Navalkishore and to take over the possession thereof. However, in such circumstances, the application filed by the co-sharer i.e. applicant who is the legal heir of Surkhichandra having 1/3rd right in the property of Nonelal is maintainable. It can safely be observed that the transferee is stepping into the shoes of Navalkishore and such a person want to take over the possession of the share of Navalkishore, as per decree of partition, however the right to pre-emption arise in favour of the co-sharers.

At this stage, the objection so raised by learned counsel Shri Khare with respect to rejection of the application of one of the co-sharers during the pendency of suit for partition, and the said proceeding ended by the judgment of Apex Court is required to be explained. In this regard it is to be observed that the earlier application was filed by defendant No. 2 Sunderlal who was the co-sharer during the pendency of the suit for partition which was rejected and the Hon''ble Apex Court in the light of the judgment Gautam Paul (supra) set aside the judgment of this Court. In view of the discussions as made hereinabove, it is apparent that if a transferee sues in a suit for partition then the co-sharer is having a right of pre-emption meaning thereby prior to passing the preliminary decree of partition such right is hot available to the co-sharer and after passing of the preliminary decree or final decree passed up to the stage of execution, such right is available to the co-sharers. In that view of the matter, it is to be held that the rejection of the application u/s 4 of the Partition Act filed by the applicant in execution proceedings started by the transferee in view of the decree of partition passed by the Court below is sustainable in law and the trial Court committed jurisdictional error while rejecting such application.

At this stage Shri Khare, learned counsel appearing on behalf of the respondents submits that the provisions of section 4 of the Partition Act is having no application because it relates to the dwelling house and the present house is not a dwelling house. Per contra Shri Jain, learned counsel appearing on behalf of the applicant contends that as per the judgment and decree itself it is apparent that house Nos. 25 and 26 is dwelling house. In the considered opinion of this Court, the aforesaid issue is not required to be dealt with, because in exercise of the revisional jurisdiction the Court has to look into the legality and propriety of the order passed by the trial Court. Thus parties are at liberty to raise such objection, and the said issue may be decided by the trial Court. Accordingly, the revision filed by the applicant is hereby allowed, and the order impugned passed by the trial Court stands set aside. The Executing Court is directed to take action in view of the foregoing observations and in the light of the decision of Apex Court in the case of Om Prakash Marwaha (Dead) through LRs (supra) for correction of the preliminary decree and to consider the application u/s 4 of the Partition Act, in view of the law laid down by the Hon''ble Apex Court in the case of Ghantesher Ghosh (supra), Gautam Paul (supra) and Babulal (supra) and also as per the observations made therein. In the facts and circumstances of the case, parties to bear their own costs.