Full Judgment Text
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2916 OF 2010
(ARISING OUT OF SLP(C)No.17144 of 2008)
MOTHURU NARAYANA (D)
THR.LRS. & ORS. …. APPELLANTS
VERSUS
PADMIDIMUKKALA SATYANARAYANA ….RESPONDENT
O R D E R
Leave granted.
2. Plaintiff is the appellant and being aggrieved by
the judgment and decree passed by the Andhra Pradesh
High Court affirming the judgment and decree of the
First Appellate Court, modifying and setting aside the
judgment and decree passed by the trial court in favour
of the plaintiff has filed this appeal by special
leave. The suit property is a dwelling house measuring
410 square yards, situated at Repalle Town. The
defendant who is the respondent herein is the owner of
th
3/4 share of the said property and one Shri Anikendu
th
was the owner of balance 1/4 share. The plaintiff
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th
purchased the aforesaid 1/4 share of the property
under Exhibit A1 for consideration of Rs.3,000/- on
18.2.1976 and thereafter filed a suit seeking for
decree of partition of his share. During the pendency
of the suit an amendment application was filed seeking
th
to add the relief for delivery of possession of 1/4
share of the suit property. The trial court after
hearing the parties, decreed the suit. Aggrieved by the
aforesaid judgment an decree passed, the defendant
filed appeal before the First Appellate Court which
modified the decree passed by the trial court holding
th
that the plaintiff is entitled to 1/4 share of the
suit property but in terms of Section 4 of the
Partition Act, he would be entitled to receive a sum of
th
Rs.3,000/- towards the value of his 1/4 share with
interest at the rate of 6% per annum thereon from the
date of purchase i.e. 18.2.1976 from the defendant.
3. Aggrieved by the said judgment and decree of the
First Appellate Court the plaintiff filed Second Appeal
before the High Court. The High Court considered the
respective pleadings as also the evidence adduced by
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the parties. It upheld the judgment and decree passed
by the First Appellate Court and while doing so
referred to pleading of the defendant that he is
th
willing to buy 1/4 share from plaintiff. The High
Court took note of para 4 of the written statement
wherein the defendant himself had admitted that the
th
plaintiff is entitled to 1/4 share in the suit
property. Accordingly the High Court observed as under
:
“The only course left to the plaintiff is
to offer his interest in the suit house to the
defendant as he is admittedly the stranger and
the house is a dwelling house and in view of
the impracticability of any partition by metes
and bounds, the defendant is willing to
purchase the plaintiff’s interest at the
market value.”
4. The High Court thereafter referred to the
provisions of Section 4 of the Partition Act and
directed the defendant to pay a sum of Rs.3,000/- along
with interest at the rate of 6 per cent per annum from
the date of the purchase.
5. We have heard the learned counsel appearing for
the parties and have also perused the record.
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6. Counsel appearing for the appellant drew our
attention to Section 4 of the Partition Act and
forcefully contended that the purchase money of the
year 1976 ought not to have been assessed as the proper
valuation of the share envisaged under Section 4 of the
Partition Act. We find force in the said submission of
the counsel appearing for the appellant. Section 4 of
the Partition Act, which is relevant for the purpose
reads as follows :
“4. 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 to 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.”
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7. From a plain reading of Section 4(1), it is
evident that if any member of the family who happens to
be a shareholder, undertakes to buy the share of a
transferee, the court shall make valuation of the share
transferred. For making valuation, the parties have to
be given an opportunity to lead evidence.
8. Neither the First Appellate Court while modifying
the decree nor the High Court while affirming the said
decree had undertaken the aforesaid exercise. The trial
court had also not adverted to this issue at all.
There is no dispute with regard to the share of the
respective parties so far as the suit property is
concerned. There is no evidence in regard to the
value of the property sought to be partitioned, over
which the claim of the plaintiff has been decreed. In
the absence thereof this issue can not be decided. As
evidence is necessary to determine this issue parties
shall be at liberty to lead such oral or documentary
evidence as deemed necessary by the trial court.
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9. Therefore, while affirming the decree for
partition, we set aside the judgment and decree passed
by the courts below directing the defendant to pay to
the plaintiff a sum of Rs.3,000/- alongwith interest
thereon @ 6% from 18.2.1976 and remit the matter to
the trial court to determine the value of share in
terms of Section 4 of the Partition Act. Amount so
determined will be paid by the defendant to the
plaintiff.
10. The appeal is partly allowed in the terms
aforesaid.
………………………………………………….J.
(DR. MUKUNDAKAM SHARMA)
……………………………………………………J.
(C.K. PRASAD )
NEW DELHI,
MARCH 31, 2010.