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

The 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.

On the second issue, the bench negated the contention of the appellant that the Respondent had given a conditional offer to purchase.

It observed,

"it is no doubt true that an undertaking as contemplated under Section 4 of the Partition Act must be unconditional. Now in the instant case, the record reveals that the respondent in his written statement as well as in the Application bearing Paper No. C-17 had given a clear undertaking that he is ready to buy out the share of the appellate at Rs. 9,00,000/- or such other sum to be determined by the Court. Even from the perusal of the cross-examination of the respondent, it cannot be said that his offer was conditional."

Reliance was placed on Iliyas Ahmad and Others v. Bulaqi Chand & Ors., AIR 1917 (Alld) 2, wherein it was held that while enforcing the right under Section 4, there must be something more than a mere offer and the undertaking give to the Court should be unconditional and a person should not be able to resile from the same.

The Court went on to examine the legislative intent for enacting Section 4 of the Partition Act of 1893.

Accordingly, the second appeal was allowed.

Case Title: Yogesh Kesarwani And Anr. vs Devi Shankar Shukla

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