Undertaking As Contemplated U/S 4 Of Partition Act Must Be Unconditional: Allahabad High Court

The Allahabad High Court, sitting in Lucknow, recently held that a member of an undivided family being a shareholder of the family's dwelling-house is entitled to exercise his rights under Section 4 of the Partition Act only if the undertaking is unconditional. The declaration was made by Justice Jaspreet Singh.Section 4 of the Partition Act provides that 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.Sub-section 2 contemplates the procedure to be undertaken where two or more members of the family being such shareholders severally undertake to buy such share.Question of LawIn the instant matter, the Court was called upon to decide two questions in the second appeal:1. Whether the valuation of the share of the stranger in the house of the shareholder must be made by the court on the date of the judgment determining the respective shares of the transferee and the co-sharer? If yes, its effect on the decree passed by the lower appellate court. 2. Whether the "Undertaking " must be unconditional? and if yes whether the absence of any finding recorded by a lower appellate court in favour of the present respondent that he gave un-conditional 'undertaking to buy' the benefit of Sec. 4, partition Act could have been extended? and, if not, its effect?"Case BackgroundThe appeal was an upshot of the suit for partition filed by plaintiffs (Appellants herein) seeking separation of their 3/4th share in the house where the respondents wanted to purchase the 3/4th share of the stranger purchasers at the price at which the stranger purchasers had purchased the property from the owner of the property at such price to be determined by the Court.Since the Lower Appellate Court had allowed the defendant's appeal and its counter claim, the present second appeal was preferred. The counsel for the Appellant stated that the respondent was not entitled to exercise his rights under section 4 as the evidence recorded indicated that house in the question was not a family dwelling house. The counsel also stated that the judgement earlier by the lower court was given in accordance to Section 2 and Section 3 of the Partition Act which is not applicable in the instant and hence was un-justified.It was further contended that the undertaking must be un-equivocal and unconditional and only then the same can be relied upon. However, since the respondent did not make an unconditional offer, hence, he was not entitled to the benefit of Section 4 of the Partition Act. The counsel for the respondents stated that the respondents has earlier moved a separate application seeking enforcement of his rights to purchase the share of the stranger purchaser and hence he expressed undertaking and his willingness to purchase the share unconditionally. The counsel also submitted that the house in question was a family dwelling house, and the Section 2 and Section 3 of the Partition Act were independent of Section 4 of the Partition Act and do not matter in the manner of valuation and determination of the value of a share is concerned.Further, respondent both in his written statement as well as in a separate application had clearly given his undertaking to purchase the share of the stranger purchaser and throughout he has been ready and willing to purchase the share and in the aforesaid facts and circumstances, it cannot be said that any conditional undertaking was given.Findings As regards the issue of valuation of share of the stranger in the house of the shareholder, the bench averred that a reasonable appreciation has to be provided to ensure that the stranger purchaser may not be put to any unnecessary loss on account of delay in time between the date of making the application and the date on which he receives the money for the sale in favour of the co-sharer.It stated that that the balance has to be fine tuned to render justice between the parties while noticing the natural accretion to the value of the property and its effect on the rights of the co-sharer and the stranger purchaser.Thus, it was held that no straight jacket method can be adopted uniformly in all cases for valuation."Ordinarily, the date of valuation would be the date when the right to purchase accrues, in other words, it cannot be a date prior but must be the date of making an unconditional offer to purchase either by making a separate application or otherwise by making the undertaking in pleadings. Upon such application, the Court must make an earnest endevour to arrive at the valuation as soon ...

Undertaking As Contemplated U/S 4 Of Partition Act Must Be Unconditional: Allahabad High Court

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