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  

3/4th share of the said property and one Shri Anikendu  

was the owner of balance 1/4th share.  The plaintiff

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purchased  the  aforesaid  1/4th 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  

to add the relief for delivery of possession of 1/4th  

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  

that the plaintiff is entitled to 1/4th share of the  

suit  property  but  in  terms  of  Section  4  of  the  

Partition Act, he would be entitled to receive a sum of  

Rs.3,000/- towards the value of his 1/4th 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  

willing to buy 1/4th share from plaintiff.  The High  

Court took note of para 4 of the written statement  

wherein  the  defendant  himself  had  admitted  that  the  

plaintiff  is  entitled  to  1/4th 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.