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Judgment
I. P. Mukerji, J
Five suits were tried toge er by e learned single judge and decreed on 12 September, 2014. Woodland Manufacturers Ltd. appeals to is court from at
decree.
 e property involved is Premises No.78, Rafi Ahmed Kidwai Road, Kolkata. For e purposes of e suits and is appeal, is property is to be taken as
having 3 lots, 1, 2 and 3. It was undivided. Woodland is e owner of 50% share in Lot 1, 75% share in Lot 2 and 50% share in Lot 3. It was already
owned by em at e material point of time.
In one suit (CS 501 of 1976) Woodland claimed specific performance of an alleged agreement for sale by e Gargas made on 13 September, 1973 in eir
favour and of a 1/4 undivided share in Lot 2 in eir favour and for partition of e property. ey also claimed specific performance of e agreement dated
11 June, 1973 for transfer by members of e said family in eir favour, of eir shares in Lots 1 and 3 (Suit No. 43 of 1989). In ano er suit (CS 324 of
1987) against Shankar and Kalyani, Woodland claimed partition of Lots 1 and 3 on purchase of 1/2 of e undivided shares in Lots 1 and 3. e Gargas
filed two suits (CS 228 of 1984 and CS 684 of 1986) for declaration at e conveyance of 25 July, 1978, 26 July, 1978 and 25 April, 1981 executed by
members of e Garga family were void.
 e learned judge ruled at Woodland was not entitled to specific performance of e agreements. e preferential right of Shankar to purchase e interest
of Woodland in Lots 1 and 3 of e subject property described in e schedule to e plaint in Suit No. 324 of 1987 under Section 4 of e Partition Act, 1893
was allowed. Woodland was directed to transfer and convey its right, title and interest in ose Lots to Shankar at a price to be determined by e
Registrar of Assurance, Kolkata. Shankar would have to apply to e Registrar to let him know e market value of e suit premises as on e date of filing e
application under Section 4 of e Partition Act. is application had to be made wi in 7 days from e date of e decree. Wi in a fortnight from receipt of e
market value of e property from e Registrar, Shankar would have to notify is to Woodland. Simultaneously, wi e communication of e decision of e
Registrar, Shankar would have to forward to Woodland e draft conveyance required to be executed by em. Woodland would have to execute e
conveyance wi in seven days of is communication. Shankar was to make over e consideration simultaneously wi registration of e conveyance.
 ere was a default clause if Woodland made default but ere was no default clause if Shankar was in default.
On 12 August, 2009 e application under Section 4 of e Partition Act, 1893 was made by Shankar. On 17 September, 2014 wi in five days of e
judgment and decree dated 12 September, 2014, T. Banerji and Company, Solicitors and Advocates wrote to e Registrar of Assurances, Kolkata
asking e latter to treat e same as an application to compute e market value of e suit premises in terms of is judgment and decree. In e decree ere was
no time limit upon e Registrar to make is computation.
On 6 August, 2015 e said Solicitors wrote to e Registrar to dispose of at application at e earliest. On 10 August, 2015 e Registrar wrote back at e
market value as on 12 August, 2009 was not available in his office and at Shankar’s solicitors should contact e Inspector General of Registration
and e Commissioner of Stamp Revenue, West Bengal. On 11 August, 2015 T. Banerji & Company reiterated e contents of eir letter of 6 August,
2015, to e Inspector General of Registration and Commissioner of Stamp Revenue, West Bengal to e Registrar.
In 2017 a writ application was filed in is court (WP 398 of 2017) (Rajesh Poddar vs. West Bengal Information Commission and Ors.). On 2 4July,
2017 is court passed an order directing e registering au ority to complete e valuation process of e premises expeditiously. On 1st August, 2017 e
Registrar of Assurances visited e premises and determined e value ereof as Rs.9,44,69,457/- as on 12 August, 2009. is was recorded in a letter dated
7 August, 2017 of e Registrar to e advocate on record for e State of West Bengal wi a copy marked to T. Banerji and Company.
 e grounds in e memorandum of appeal were virtually abandoned by e appeal at e time of hearing of e appeal. A wholly different ground was taken
based on post decree developments. As e grounds being founded on subsequent developments, we allowed em to be taken.
Mr. Chowdhury, learned counsel for e appellant invoked e principles of Order XX rule 14 of e Code of Civil Procedure. is provision is set out below:
Decree in pre-emption suit. (1) Where e Court decrees a claim to pre-emption in respect of a particular sale of property and e purchase-money
has not been paid into Court, e decree shall-
(a) specify a day on or before which e purchase-money shall be so paid, and
(b) direct at on payment into Court of such purchase-money, toge er wi e costs (if any) decrees against e plaintiff, on or before e day referred to in
clause (a), e defendant shall deliver possession of e property to e plaintiff, whose title ereto shall be deemed to have accrued from e date of such
payment, but at, if e purchase-money and e costs (if any) are not so paid, e suit shall be dismissed wi costs.
(2) Where e Court has adjudicated upon rival claims to pre-emption, e decree shall direct,-
(a) if and in so far as e claims decreed are equal in degree, at e claim of each pre-emptor complying wi e provisions of sub-rule (1) shall take effect in
respect of a proportionate share of e property including any proportionate share in respect of which e claim of any pre-emptor failing to comply wi e
said provisions would but for such default, have taken effect; and
(b) if and in so far as e claims decreed are different in degree, at e claim of e inferior pre-emptor shall not take effect unless and until e superior pre-
emptor has failed to comply wi e said provisions.â€
He argued at e application of Shankar under Section 4 of e Partition Act, 1893 was to be considered like a pre-emption suit under e above provision. is
provision provides at e court in e decree would specify a particular time wi in which e purchase money would have to be paid. If e consideration is
paid e defendant would have to deliver possession of e property, but if not paid, e suit would be dismissed. He attacked e decree on e ground at it was
a final decree, where e court did not stipulate any time limit for payment of e consideration. It did not retain any jurisdiction to ascertain whe er e
consideration had been paid wi in a stipulated time. e court ought to have made a preliminary decree. ereafter, on a specified reliable date, e court
would ascertain whe er e condition in e preliminary decree regarding payment had been complied wi . en it ought to have passed a final decree. In is
case, e payment under e decree had not been made. e court would us be obliged to dismiss e Section 4 application.
In e impugned final decree ere was no time limit upon e Registrar to make e determination of market value of e property. e Registrar could not make
e determination wi in reasonable time. At e intervention of e court in a writ e determination was finally made valuing e property at Rs.9,44,69,457/- on
7 August, 2017. In e absence of a time limit upon Shankar to make e payment of e consideration, e decree was flawed, learned counsel submitted.
Woodland was not bound by e much delayed determination made in 2017. In ose circumstances, Woodland was entitled to partition of e property, he
argued. e decisions cited by Mr. Chowdhury will be discussed at a later point of time.
Mr. Siddhar a Mitra, learned senior counsel appearing for Shankar submitted at ere was a difference between a partition suit and a pre-emption suit.
In a suit for pre-emption, usually e plaintiff sues on e basis of a pre-emption right contained in an agreement. at is not e case here. e respondents had
made an application under Section 4 of e Partition Act, 1893 in e partition suit filed by Woodland on eir purchasing e undivided share of Shankar in e
partition suit. In ose circumstances, Order 20 Rule 14 of e Code of Civil Procedure did not apply. Going by Woodland’s argument, e suit had been
instituted by em. Applying e said rule on non-receipt of consideration, eir suit had to be dismissed.
Fur ermore, Woodland had filed a separate suit (CS 267 of 2017) for partition, after filing of e appeal. In ose circumstances, is appeal had become
academic. Whe er e appellant was entitled to partition or not in e above facts and circumstances of e case would be decided in e said suit. at was e
reason, according to Mr. Mitra why Woodland had not filed e paper books in ese appeals for a long time and took extension of time from is court to
file e same. Shankar had also filed a suit (CS 247 of 2017) against e Registrar of Assurances and Woodland (as proforma defendant) for valuation of
e undivided share in e said premises in terms of e impugned decree.
Mr. Mitra submitted at on 15 May, 2018, an application under Order 7 Rule 11 of e Code of Civil Procedure filed by his client in e suit (CS 267 of
2017) was rejected by is court. A Division Bench of is court on an appeal from e order dated 15 May, 2018 directed bo e suits to be heard toge er,
(analogously or one after e o er).
DISCUSSION AND CONCLUSIONS
Black’s Law Dictionary, 9 Edition defines pre-emption as “ e right to buy before o ersâ€. It is e purchase of some ing under is right. is right
according to Black is contained in a contract relating to sale. is right is described as e potential buyer’s contractual right to have e first opportunity
to buy at a specified price in a sale wi in e contract period. One example is given in e dictionary. Suppose A has a right of pre-emption on B’s
house for 5 years at $ 1,00,000, B can keep e house for 5 years. In at case, A’s right is extinguished. If B wishes to sell it wi in 5 years en A can
ei er buy it for $ 1,00,000 or refuse to buy it. If A refuses to buy it, en B can sell it to someone else.
 e au orities which Mr. Chowdhury cited on is point would have to be appreciated in e context of e principles in Order XX rule 14 of e Code of Civil
Procedure. It conceives of a pre-emption suit filed, say, by a co-sharer of a property against a transferee of a share in it. It assumes at e transferee
has acquired title to and taken possession of e property. On payment of e consideration by e co-sharer by e date specified by e court e title reverts
back to him. e transferee is to deliver back possession.
At is point, Section 44 of e Transfer of Property Act becomes important and needs consideration. It says at a co-owner of a property can transfer his
share to an outsider. Upon such transfer, he acquires a share or interest in e property toge er wi a right to joint possession. If e transferee is not a
member of e family, e share is undivided, e property is a dwelling house and belongs to an undivided family, he cannot get joint possession. He can
claim separate possession by suing for partition.
 is is provided in Section 4 of e Partition Act, 1893. If e transferee sues for partition, any member of e undivided family can buy his share upon e
court making a valuation ereof and upon payment of such value as consideration. ese provisions of different statutes are interconnected.
In my opinion, Order XX rule 14 is inter alia about a pre-emption suit by a co-sharer of a property which is not owned by an undivided family to buy e
share of a transferee who has obtained possession under e first part of Section 44 of e said Act. e co-sharer can buy out e transferee by paying e
agreed consideration. If such payment is made by e specified day he gets possession. If e payment is not made, e suit is dismissed.
 e judgment of e Supreme Court in Naguba Appa Vs. Namdev reported in AIR 1954 SC 50 is in at context and lays down two principles. In a suit
claiming pre-emption, e moment ere is default on e part of e co-sharer to deposit e sale price by e stipulated date in e decree, e suit is liable to be
dismissed. is is by operation of law, at is to say, e provisions in Order XX rule 14 of e code. It is kind of a fate accompli. e court on an application for
extension of time does not retain e power to extend it. Secondly, it need not to be provided in e decree at in default of payment of e sale price, e suit
would be dismissed. e dismissal is by operation of law.
Sulleh Singh & Ors. Vs. Sohan Lal & Anr reported in AIR 1975 SC 195 7affirmed is principle. It added at e appeal court had e power to alter e
decree. (See also Jagtar Singh & Anr. Vs. Kartar Singh & Ors. reported in AIR 1980 P&H 313).
 e Supreme Court in Radhakishan Laxminarayan Toshniwal Vs. Shridhar Ramchandra Alshi & Ors. reported in AIR 1960 SC 136 8did not look
upon e pre-emptor in a favourable way. He was looked upon as one empowered by law to “disturb a valid transactionâ€. It said at e right of
preemption was a weak right.
Subal Chandra Modak Vs. Gos a Bhhari Das reported in 60 CWN 829 is a division bench judgment of our court. It arose out of an application under
Section 4 of e Partition Act. e dictum of e court was at e co-sharer claiming e right of preemption was compelling e purchaser to make a “forced
saleâ€. e valuation had to be “fixed†wi great care and precision. Ano er division bench judgment of our Court Gopal Chandra Mitra & Ors. Vs.
Kalipada Das & Ors. reported in AIR 1987 Cal 210 opined at e market value of e share in e property sought to be bought was at e time a co-sharer
undertook to is court to buy e share of e transferee. Section 4(1) did not provide any time of making e undertaking or valuation. Our division bench
interpreted e provision, by ruling at e date of valuation was “when such application can properly be made and can become legally effective in order
to bring e provision of Section 4 into operation. Such effective date was e date of e preliminary decree determining e shares of e parties. In fact, as
early as in 1910 Sir Ashutosh Mookerjee presiding over a division bench of is court said in Khirode Chandra Ghoshal Vs. Saroda Prosad Mitra
reported in CDJ 1910 Cal HC 343.
“2. In so far as e first point urged in support of e Rule is concerned, it is clear at e application, under Section 4, of e Partition Act, has been made at
e proper stage. Section 4 does not provide at e application contemplated by it should be made before e preliminary decree; on e o er hand, it is obvious
at e application cannot be made till e rights of e parties have been determined by e preliminary decree. To take one illustration it is conceivable at ere
may be a dispute between e parties as to whe er e plaintiff has really acquired any interest in e dwelling house or not, and whe er, he is entitled to
demand a partition of it. Such question must, clearly, be determined before a defendant can be expected to make an application under Section 4. As
was pointed out by is Court in e case of Satya Kumar v. Satya Kirpal 10 C.L.J. 503 : 3 Ind. Cas. 247 e, question, whe er a particular property alleged
to be joint really possesses at character, must be determined before e preliminary decree is made; all questions involving e title of e parties and eir
right to any relief wi in e issues, are judicial in character, and must be determined by e Court, such determination to be made ordinarily by e Court, and
incorporated in e interlocutory decree before any partition is made or directed. An application, under Section 4, erefore, cannot be properly made,
before it has been declared by e preliminary decree, at e plaintiff, who is not a member of e family, has acquired a valid title to a share ereof, and is
entitled to claim partition. is view has been adopted in e cases of Hira Moni v. Radha Charn 5 C.W.N. 128; Kadir v. Abdul Rahiman 24 M. 639,
Abdus Samad v. Abdur Razzaq 21 A. 409 and Bai Hirakore v. Trikamdas 32 B. 103 : 10 Bom. L.R. 23 : 3 M.L.T. 141, where it was ruled at an
application, under Section 2 or Section 4 of e Partition Act, may be made after e preliminary decree. e case of Kali Kumar v. Brahmananda 7 C.L.J.
98, where e earlier au orities do not appear to have been brought to e notice of e Court, may, at first sight, seem to lend some support to e contrary
view. e case, however, is really distinguishable, because ere e parties had proceeded, not merely beyond e preliminary decree, but also be-yond
execution proceedings based ereon, and had actually found it necessary to institute a suit under Section 331 of e Civil Procedure Code of 1882, by
reason of an obstruction by a claimant in good fai o er an e judgment-debtor. It is needless for us to express any opinion upon e question, whe er, even
at such stage, it may not be open to one of e parties to avail himself of e benefit of Section 4 of e Partition Act. ere can, however, be no room for
controversy at e application in e case before us, made immediately after e confirmation of e preliminary decree by e Court of appeal, was amply in
time, and ought to have been considered on e merits. We may add, fur er, at e mere circumstance at is matter had been mentioned in e memorandum
of appeal presented against e preliminary decree, is no bar to is application. e ground could not have been entertained at at stage, and, as a matter of
fact, was not considered. We hold, erefore, at e first ground urged by e learned Vakil for e petitioners in support of e Rule, must prevail.â€
But later division benches of is court as referred to in Gopal Chandra Mitra & Ors. Vs. Kalipada Das & Ors. reported in AIR 1987 Cal 210,
maintained at e valuation had to be made on e date of e application containing e undertaking, wi out specifying e time of e application during e progress
of e suit.
Gopal Chandra Mitra & Ors. Vs. Kalipada Das & Ors. reported in AIR 1987 Cal 210 followed e 1910 decision.
All ese judgements were cited by Mr. Chowdhury.
In Krishnadhan Chatterjee Vs. Ajit Kumar Mitra & Ors. Reported in 1977 (1) CLJ 30, is court held at in dealing wi an application under Section 4 of e
Partition Act, e court should follow e principles in Order 20 Rule 14(c) of e Civil Procedure Code wi suitable modifications. It should direct sale of e
share of e stranger transferee at a valuation made by e court and direct e pre-emptor to deposit e purchase money so fixed wi in a certain date. If e
purchase money was not deposited according to e directions, e Section 4 application ought to be rejected and e stranger purchaser would be entitled to
have e allotment in terms of e final decree. is case is very important but was not cited at e bar.
 e ratio laid down by e Supreme Court in Phoolchand and Anr. Vs. Gopal Lal reported in AIR 1967 SC 1470 ,also not cited at e bar is important
inasmuch as it provides in Paragraph 7 of e report at in a partition suit e court is empowered to pass more an one preliminary decree.
In e impugned judgment and decree e learned judge has held at Shankar was entitled to exercise e right of pre-emption. is part of e finding has not
been challenged in appeal. e learned judge also directed at valuation of e property be made on e date of filing of e application under Section 4 of e said
Act. In my view, ere is no error in is direction.
It is true at a division bench of is court in Gopal Chandra Mitra & Ors. Vs. Kalipada Das & Ors. reported in AIR 1987 Cal 210 departing from
previous division bench judgments held at e relevant date for e purpose of determining e valuation under Section 4(1) of e Partition Act could only be
by an undertaking after making of e preliminary decree. In my opinion, e earlier judgments of is court after Khirode Chandra Ghoshal Vs. Saroda
Prosad Mitra reported in CLJ 1910 Cal HC 343 are applicable to is case. is is for e reason at Section 4 pre-supposes at e share in e dwelling house
transferred to e stranger transferee is undisputed. It also assumes at e transferee sues for partition. ere is no o er issue like declaration of title involved
in e suit, as conceptualized in section 4. In at suit, a joint shareholder of a family dwelling house can make an application giving an undertaking to e
court to buy out e share of e transferee. Once e option has been exercised, e date of e application containing e undertaking would be e date for
valuation, for e simple reason at while filing e application e shareholder should be willing to buy out e stranger transferee by making payment to him of
e consideration to be determined by e court and e transferee obliged to take e consideration and transfer e share to e shareholder. e entire exercise
has to be completed wi in reasonable time after e undertaking is made, so at ere is no material change in e value of e property. If e shareholder
defaults, e Section 4 application should be dismissed following e principle laid down in Krishnadhan Chatterjee Vs. Ajit Kumar Mitra & Ors. reported
in 1977 (1) CLJ 30. e transferee is entitled to partition. If e transferee defaults, e conveyance can be executed by e court in favour of e shareholder.
 ere is no fundamental error in e decree complained of.
 e errors are ese. e decree ought to have been a preliminary decree. e Registrar of Assurance ought to have been set a short time limit to make e
valuation. e decree ought to have contained a clause at on e default of Shankar his Section 4 application would be dismissed and e property
partitioned.
 e court ought to have directed at e suit wi e section 4 application would appear on a future date for passing a fur er preliminary or final decree.
Shankar was not at all at fault for e delayed valuation of e property by e Registrar of Assurance.
His solicitors forwarded e decree to e Registrar wi in time. e delay was made in e office of e Registrar. In fact nei er party was at fault.
Woodland is justified in saying at at is point of time ey are not bound to take e property as valued by e Registrar, as in 2009. e question also is for
absence of fault on e part of Shankar, could his application under Section 4 of e Partition Act be dismissed?
 e Supreme Court in Phoolchand and Anr. Vs. Gopal Lal reported in AIR 1967 SC 1470 has opined at e court has e power to pass more an one
preliminary decree.
In my opinion, if e court has e power to make more an one preliminary decree, it is also invested wi e power to alter e terms of e preliminary decree
and pass consequential orders on a changed situation.
In ose circumstances, e impugned judgment and decree has to be treated as a preliminary decree.
Since ere was no fault on e part of ei er party, ere is occasion in my opinion, for passing a fur er preliminary decree, balancing e equities.
On e date of making e application under Section 4 of e said Act by Shankar i.e. 12 August, 2009 e valuation of e property was Rs.9,44,69,457/-.
According to e above reasoning, is amount was payable very contemporaneously to e date of is application. erefore, if e valuation and payment were
made wi in time, Woodland would have received is amount wi in a reasonable period after 12 August, 2009. Let is reasonable period be 3 mon s. So,
Woodland should have been bought out by 31st December, 2009.
I would hold at Woodland was entitled to enjoy e benefit of is money from e date of receipt of e consideration till date. is is reasonably assessed at
10% per annum simple interest.
In ose circumstances, it would be just and proper and subserve e interest of justice if Shankar pays to Woodland e consideration of Rs.9,44,69,457/- on
e valuation made by e Registrar toge er wi 10% simple interest ereon for e period commencing from 1st January, 2010 till e date of is preliminary
decree and ereafter, fur er 10% simple interest per annum from is date till payment which has to be tendered on 20 March, 2020, Woodland will
convey eir right, title and interest in e said property to Shankar, on 20 March, 2020. On default by Woodland, e Registrar, High Court, Original Side
shall execute e conveyance by 30 April, 2020.
On e default of Shankar is suit would be placed before e learned single judge for passing of a preliminary decree of partition. I pass a preliminary
decree, accordingly.
Fur ermore,
A) e sale deed shall be registered on e same day as e payment of consideration. Woodland shall not raise any dispute wi regard to e draft conveyance
submitted by Shankar.
B) Shankar will continue to be in possession of e property, until fur er orders.
C) If ere is default on e part of Shankar in making e payment of e consideration by 20 March, 2020 Woodland shall apply before e court below to pass
ano er preliminary decree for partition. No fur er enquiry is to be made by e court below except wi regard to e payment of consideration wi in e
stipulated time. If it finds at e consideration has not been paid a preliminary decree for partition assuming e share of e parties to be admitted, shall be
passed by it.
D) If is eventuality happens e court will proceed fur er to pass a final decree of partition.
E) It is made clear at under no circumstances, e time to pay e consideration is to be extended and at e above directions are peremptory.
 e impugned judgment and decree dated 12 September, 2014 is modified to e above extent, treating it as e first preliminary decree.
 e appeal (APD 238 of 2016) is disposed of accordingly. No order as to costs.
I agree,