In H. Vasudeva Pai v. Kamarunnisa, 2011 (15) SCC 768, the issue of applicability of Section 4 has again been examined at length to hold that even if family is divided in status, in the sense that they were holding the property as tenants in common, but undivided qua the dwelling house in question, and is yet to be divided by metes and bounds, would be covered within the provisions of Section 4 of the Act. Para 4 to 10 of the aforesaid judgment is relevant and is accordingly reproduced hereinbelow:-
"4. The learned District Judge referred to Mayne's Hindu Law and Usage and emphasised the concept of a joint Hindu family and was at pains to point out that the evidence on record did not warrant a finding that the Pai brothers constituted a joint Hindu family. It was only on account of this finding that the learned Judge persuaded himself to hold that section 4 of the partition act did not apply and that the appellant had no preemptive right to purchase the share of the property bought by the respondent.
{Para 17}
IN THE HIGH COURT OF ALLAHABAD
Matters Under Article 227 No. 7008 of 2016
Decided On: 06.11.2017
Gurudwara Sri Guru Singh Sabha and Ors. Vs. A.D.J., Court No. 16, Muzaffarnagar and Ors.
Hon'ble Judges/Coram:
Ashwani Kumar Mishra, J.
Citation: MANU/UP/3036/2017
1. This petition questions the correctness of revisional order dated 3.8.2016, arising out of rejection of application for grant of benefit under Section 4 of the Partition Act, 1893, preferred during preparation of final decree, whereby the issue has been remitted to the trial court for passing a fresh order in light of the observations made.
2. Facts which are not in issue are that late Khikharam was the owner in possession of the property in question i.e. House No. 32/8, Gandhi Colony, Muzaffarnagar, who died on 2.7.1955 leaving behind his two sons, namely Suraj Bhan and Madan Lal. Suraj Bhan instituted original suit No. 749 of 1988, claiming exclusive right over House No. 32/8 as well as 1/3rd share in another House No. 30/4, Gandhi Nagar, purchased in the name of widow of Madan Lal, as well as relief of partition and possession in respect thereof in case he was not found in possession. In para-13 and 14 of the plaint it was alleged that a family settlement took place in July, 1959, between the two brothers, aforesaid, and their mother Smt. Rukmani Bai in following words:-
{Vernaculars omitted}
In para 19 of the plaint plea of fresh family settlement made in 1979 was asserted, and it was alleged that as per it the plaintiff became the exclusive owner of House No. 32/8 and acquired 1/3rd share in House No. 30/4.
3. A written statement was filed denying exclusive right of the plaintiff over House No. 32/8, while accepting plaintiff's half share over it and claiming that other property belonged exclusively to Smt. Krishna Kumari widow of Madan Lal. Family settlement of 1959 was admitted, whereas plea of fresh settlement of 1979 was denied. A counter claim was also made vide para 41 to 43 of written statement, which is extracted hereinafter:-
{Vernaculars omitted}
4. Trial court dismissed the suit on 26.7.2004 and decreed the counter claim with a specific finding that partition of all movable and immovable property between the brothers had taken place in 1959, vide Paper No. 38A, and they seized to be members of joint family thereafter. Purchase of House No. 30/4, after settlement in 1959, by the widow of Madan Lal i.e. Smt. Krishna Kumari thus was held to confer exclusive right over it in the defendants. So far as House No. 32/8, Gandhi Colony was concerned, the civil court decreed counter claim of defendants for partition of its 1/2 share and to put them in possession over it.
5. On the very next date of passing of judgment, the heirs of late Madan Lal i.e. defendants 2nd set, transferred their share in House No. 32/8, Gandhi Colony, vide registered sale deed dated 27.7.2004 to the petitioner. A first appeal and second appeal filed against decree passed in counter claim on 26.7.2004 failed with its dismissal. Proceedings thus commenced for preparation of a final decree. Petitioners i.e. the purchasers prayed for preparation of separate Kurras for them. It is at this stage that the plaintiffs filed an application under Section 4 of the Partition Act on 10.5.2012 stating that being members of an undivided family they are willing to buy the share of petitioners, as defendants 2nd set have transferred their undivided share outside the family. This application was opposed and the trial court sustained such objection, vide its order dated 15.7.2013. A finding was returned that parties had seized to be members of an undivided family after 1959, and that ingredients of Section 4 are not attracted. This order got challenged in civil revision No. 134 of 2013, which has been allowed vide order under challenge. The revisional court for arriving at its conclusion relied upon judgment of the Apex Court in Ghantesher Ghosh v. Madan Mohan Ghosh and others, MANU/SC/1750/1996 : AIR 1997 SC 471, wherein Section 4 was held to be a benevolent provision available at all subsequent stages until litigation reaches its terminus by way of full and final discharge of final decree of partition. Revisional court opined that since a final decree has not yet been drawn, and partition has not been carried out by metes and bounds, as such the dwelling house continued to be owned by undivided family in terms of Section 4 and conclusions drawn by the trial court is incorrect, and requires reconsideration. Rest of the findings contained in the order of trial court have been affirmed. Thus aggrieved, the purchasers are before this Court in the present petition.
6. Petitioners contend that necessary ingredients to attract provisions of Section 4 of the Partition Act are missing, inasmuch as twin conditions i.e. existence of a dwelling house and of an undivided family are missing. While existence of dwelling house is not seriously questioned, it is contended that family seized to be undivided after 1959, inasmuch as family settlement of 1959 resulting in partition and of it having been acted upon was duly acknowledged by the civil court, which has attained finality. Reliance is placed upon judgment of Apex Court in Smt. Krishnabai Bhritar Ganpatrao Deshmukh v. Appasaheb Tuljaramarao Nimbalkar and others, MANU/SC/0575/1979 : 1979 (4) SCC 60, to contend that partition does not necessarily mean that it is followed by actual possession also. Para 321 of Mulla on Hindu Law, defining partition, is also relied upon. Emphasis is laid on the fact that other properties owned by the alleged undivided family have also been transferred, including by the applicants themselves, after 1959, and therefore, it would be preposterous to assume that part of the property stood partitioned while it continued to remain undivided in respect of other property. Submission is that legislature intended to protect only undivided families and in view of the fact that partition in 1959 is admitted and recognized in law, it would be impermissible to accord status of undivided family to the parties now, so as to extend benefit of Section 4 of the Act. Reliance is also placed upon judgment of the Apex Court in Kalyani (Dead) by LRs. v. Narayanan and others, MANU/SC/0298/1980 : 1980 Supp. SCC 298. Contention is also raised that executing court cannot go behind the decree and reliance is placed in that regard upon para 6 of Apex Court judgment reported in MANU/SC/0531/1970 : AIR 1970 SC 1475. Plea of issue estoppel is also raised and reliance is placed upon judgment of Apex Court in Bhanu Kumar Jain v. Archana Kumar and another, MANU/SC/1079/2004 : 2005 (1) SCC 787.
7. Per contra, it is contended that Partition Act is not a part of personal law and the concept of undivided Hindu family or joint family cannot be read in the term "undivided family", used in Section 4, and that unless the undivided family has divided the dwelling house amongst themselves, by metes and bounds, it would continue be an undivided family under the Act, so as to attract Section 4. Reliance is placed upon judgment of Apex Court in Dorab Cawasji v. Coomi Sorab Warden, MANU/SC/0161/1990 : AIR 1990 SC 867. It is also contended that so long as partition by metes and bounds does not take place, the plea of Section 4 would continue to remain open. Reliance is placed upon the judgment of Apex Court in Ghantesher (supra). It is contended that integrity of undivided family qua dwelling house remains intact, so long as there is no partition of shares in metes and bounds. Reliance is placed upon judgment in Monomohan Saha v. Sm. Usharani Ghosh, MANU/WB/0021/1979 : AIR 1979 Calcutta 79; Kalipada Ash and another v. Tagar Bala Dasi and others, MANU/BH/0070/1969 : AIR 1969 Patna 270 and Ramaswami Pillai v. Subramania Pillai by power of attorney agent Karuppanna Pillai and another, MANU/TN/0305/1967 : AIR 1967 Madras 156.
8. I have heard Sri Anoop Trivedi alongwith Sri Nipun Singh for the petitioners, and Sri P.K. Jain, learned Senior Advocate assisted by Mrs. Shreya Gupta and Sri Ravi Aggarwal for the respondents.
9. The object and reasons for enacting the Partition Act, 1893, its provisions and the provisions of Section 44 of the Transfer of Property Act have been taken note of by the Apex Court in Ghantesher Ghosh (supra) in the following words:-
"4. ........ Before we refer to the cleavage of judicial opinion amongst different High Courts on the scope and ambit of Section 4 of the Act, it would be profitable to have a look at the provision itself. The Statement of Objects and Reasons for enacting the Partition Act, 1893 amongst others, provided as under:
"It is also proposed in the Bill to give the Court the power of compelling a stranger, who has acquired by purchase a share in a family dwelling-house when he seeks for a partition, to sell his share to the members of the family who are the owners of the rest of the house at a valuation to be determined by the Court. This provision is only an extension of the privilege given to such share holders by section 44, paragraph 2 of the Transfer of Property Act, and is an application of a well- known rule which obtains among Muhammadans everywhere and by custom also among Hindus in some parts of the country."
It is obvious that the Act intended to extend the privilege already available to a co-sharer in a family dwelling house as per Section 44 of the Transfer of Property Act, 1882 (hereinafter referred to as the T.P. Act'). Section 44 of the T P. Act dealing with cases of transfer by one of the co-owners of immoveable property, reads as under:
"44. Transfer by one co-owner - Where one of two or more co-owners of the immoveable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires, as to such share or interest, and so far as is necessary to give effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting, at the date of the transfer, the share or interest so transferred. Where the transferee of a share of a dwelling house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house".
It is obvious that by the time the Act came to be enacted, the legislature had in view the aforesaid parent provision engrafted in section 44 of the T.P. Act to the effect that a stranger to the family who becomes the transferee of an undivided share of one of the co owners in a dwelling house belonging to undivided family could not claim a right of joint possession or common or part enjoyment of the house with other co-owners of the dwelling house. Implicit in the provision was the legislative intent that such stranger should be kept away from the common dwelling house occupied by other co-sharers. It was enacted with the avowed object of ensuring peaceful enjoyment of, the common dwelling house by the remaining co-owners being members of the same family sharing a common hearth and or home. It is in the light of the aforesaid pre-existing statutory background encompassing the subject that we have to see what Section 4 of the Act purports to do. Section 4 of the Act provides as under:-
"4. Partition suit by transferee of share in dwelling-house.-(1) Where a share or 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 last foregoing section."
A mere look at the aforesaid provision shows that for its applicability at any stage of the proceedings between the contesting parties, the following conditions must be satisfied:
(1) A co-owner having undivided share in the family dwelling house should effect transfer of his undivided interest therein;
(2) The transferee of such undivided interest of the co-owner should be an outsider or stranger to he family;
(3) Such transferee must sue for partition and separate possession of the undivided share transferred to him by the concerned co-owner;
(4) As against such a claim of the stranger transferee, any member of the family having undivided share in the dwelling house should put forward his claim of pre-emption by undertaking to buy out the share of such transferee; and
(5) While accepting such a claim for pre-emption by the existing co-owner of the dwelling house belonging to the undivided family, the court should make a valuation of the transferred share belonging to the stranger transferee and make the claimant co-owner pay the value of the share of the transferee so as to enable the claimant co-owner to purchase by way of pre-emption the said transferred share of the stranger transferee in the dwelling house belonging to the undivided family so that the stranger transferee can have no more claim left for partition and separate possession of his share in the dwelling house and accordingly can be effectively denied entry in any part of such family dwelling house."
10. The applicability of Section 4, in the facts of the present case, therefore, needs to be analyzed with reference to the undisputed facts. It is not in issue that the house in question is a dwelling house owned exclusively by two brothers, namely, Madan Lal and Suraj Bhan. Their respective share in the ratio of 1:1 is also not in issue. The civil court has examined evidence on record in original suit No. 749 of 1988, and has dismissed plaintiffs' suit while decreeing the counter claim of defendant with costs. This decree has been affirmed by this Court in second appeal. The finding returned by this Court in Second Appeal No. 391 of 2008 (Surajbhan and others v. Smt. Krishna Kumari), decided on 8.7.2008, can conveniently be taken note of at this stage:-
"I have gone through the judgment and orders of both the courts below and find that the courts below have come to a definite conclusion that the plaintiff has failed to prove the family settlement of 1979. No such settlement exists and has been produced before the court and therefore in view of the admitted position on record that a family settlement had taken place in 1959 which was duly acted upon and the properties were partitioned giving half share each to the two brothers in house No. 32/8 of Muzaffar Nagar on the death of Rukmini Devi is final and conclusive.
There is no evidence on record to show that the oral family settlement of 1979 was ever acted upon and was subsequently reduced to writing for the sake of memorandum. In the absence of such pleadings and the evidence to substantiate the same, no such family settlement dividing the immovable properties unless registered is admissible in evidence.
In view of the above, I am of the opinion that the courts below committed no error of law in refusing to recognise and place reliance upon the alleged so called family settlement of 1979 besides the said family settlement there is no other material on the basis of which it can be said that the properties were divided between the two brothers subsequently as alleged.
Learned counsel next contended that the new house No. 30/4 at Muzaffar Nagar was actually purchased out of the joint family funds. Therefore, it requires division. The submission is wholly devoid of merit as there is no such material on record that the sale consideration of the said house was paid out of the joint family funds. In fact, after the settlement of 1959 there was no joint family as the two brothers have become independent. There is no evidence even to the effect that there had remained a joint family nucleus in which more funds were poured into so as to purchase the new house which has been purchased in the name of Smt. Krishna Kumari and therefore she is absolute and exclusive owner of the same in which the plaintiff has no right.
Lastly, it has been urged that on the basis of the decree passed by the court of first instance, the defendant respondents have transferred their rights in respect of half share in house No. 32/8 Gandhi colony, Muzaffar Nagar in favour of a third party and on that basis are trying to demolish and interfere with the plaintiff appellants possession on the remaining portion. This cannot be done until and unless a final decree in terms of the preliminary decree passed by the lower court is prepared and the shares of both the parties are formally demarketed to the above extent. The submission of the learned counsel for the appellants appears to be correct and justified. A perusal of the judgment and order of the Court of first instance discloses that the court has determined the share of both the parties in the ration of 1:1 in respect of the above house by way of a preliminary decree. The final decree has not yet been prepared. Therefore, unless final decree in terms of the judgment and order of the lower court is prepared, it is directed that none of the parties either themselves or through their agent or successors shall interfere in possession of one another over the said house.
No other point has been raised before me.
Under the facts and circumstances, no substantial questions of law arises for determination. The matter stands concluded by the concurrent findings of fact recorded by the courts below. Therefore, the appeal is devoid of merit and is dismissed with the above observation. No orders as to costs."
11. A definite finding has been returned by this Court of the family settlement having taken place in 1959, and of its being acted upon with properties partitioned, giving half share each to two brothers in House No. 32/8. Plea of family settlement of 1979 has been specifically disbelieved. Purchase of House No. 30/4 after 1959, therefore, was treated to be exclusively of defendant, as the two brothers had become independent, and were not member of joint family. Existence of joint family nucleus for purchase of property in the name of Smt. Krishna Kumari was also disbelieved. Having noticed share of two brothers in House No. 32/8 in the ratio of 1:1 by way of preliminary decree, this Court clearly observed that a final decree is yet to be prepared and none of the parties or their agents or successors shall interfere in possession of one another over the said house. From the facts brought on record, it is clear that though shares of two brothers got determined in the ratio of 1:1 in 1959 itself, but actual partition of dwelling house was to take place only with preparation of final decree. The filing of counter claim with the prayer to demarcate 1/2 share of defendant and to deliver possession, as well as passing of decree regarding it demonstrates in categorical terms that partition of dwelling house between members of undivided family has not yet taken place. In view of the facts so noticed, it would be appropriate to examine as to whether five conditions contemplated for attracting Section 4, in Ghantesher Ghosh (supra), is met or not?
12. The first condition is that a co-owner having undivided share in the family of dwelling house, effects transfer of his undivided interest. The sale deed executed in favour of the petitioners has been brought on record as Annexure-6 to this petition. It refers to the fact that vendors are adjudged to be the half owner of House No. 32/8 (renumbered as House No. 414), pursuant to decree passed in Original Suit No. 749 of 1988. The property transferred by the said sale deed consists of half share of the house, and has been specified as under in the sale deed:-
{Vernaculars omitted}
13. Description of property transferred is with reference to the 1/2 share sold. The first condition of co-owner having transferred their undivided share in the family dwelling house is, thus, fulfilled. The second condition that transferee of such undivided interest is an outsider or stranger to the family is also not in dispute. The third condition of transferee suing for partition and separate possession of undivided share transferred to him is also not in issue, inasmuch as the petitioners admittedly have made an application before the trial court for preparation of its separate Kurra in the final decree. The third condition is also met. The fourth condition of raising of a claim by a member of the family, having undivided share, to buy out the share of transferee is also not in issue. So far as the last condition of valuation of transferred share is concerned, its occasion is yet to arrive. In such circumstances, all conditions for attracting Section 4 of the Act are clearly met.
14. Sri Anoop Trivedi appearing for the petitioners has relied upon para 321 of Hindu Lal by Mulla, wherein it is observed that an actual division of property by metes and bounds is not necessary for partition. Reliance is also placed upon the judgment in Smt. Krishnabai Bhritar Ganpatrao Deshmukh (supra), wherein the Apex Court approved the judgments noticed by Mulla in para 321. Para 16 of the judgment is reproduced hereinafter:-
"16. We will take Point No. 1 canvassed by Shri Bal. The primary question that falls to be considered is, whether in 1902 or shortly prior to it, there was a partition between the two brothers-Narayanarao and Ramchandrarao-in a manner known to law. In this connection, it is necessary, at the outset, to notice the fundamental principles of Hindu Law bearing on the point. The parties are admittedly governed by Mitakshara School of Hindu Law. In an undivided Hindu family of Mitakshara concept, no member can say that he is the owner of one-half, one-third or one-fourth share in the family property, there being unity of ownership and commensality of enjoyment while the family remains undivided. Such unity and commensality or the essential attributes of the concept of joint family status. Cesser, of this unity and commensality means cesser or severance of the joint family status, or, which under Hindu Law is 'partition' irrespective of whether it is accompanied or followed by a division of the properties by metes and bounds. Disruption of joint status, itself, as Lord Westbury put it in Appavier v. Rama Subha Aivan. [1886] 11 MIA. 75, in effect, "covers both a division of right and division of property." Reiterating the same position, in Giria Bai v. Sadashiv MANU/PR/0097/1916 : [1916] 43 IA. 151, the Judicial Committee explained that division of the joint status, or partition implies "separation in interest and in right, although not immediately followed by a de facto actual division of the subject matter. This may, at any time, be claimed by virtue of the separate right.""
15. In Kalyani (supra), the aforesaid view has been reiterated in para 10 in following words:-
"10. The next stage in the unfolding of the case is whether Ext. P-1 is effective as a partition. Partition is a word of technical import in Hindu law. Partition in one sense is a severance of joint status and coparcener of a coparcenary is entitled to claim it as a matter of his individual volition. In this narrow sense all that is necessary to constitute partition is a definite and unequivocal indication of his intention by a member of a joint family to separate himself from the family and enjoy his share in severally. Such an unequivocal intention to separate brings about a disruption of joint family status, at any rate, in respect of separating member or members and thereby puts an end to the coparcenary with right of survivorship and such separated member holds from the time of disruption of joint family as tenant-in-common. Such partition has an impact on devolution of shares of such members. It goes to his heirs displacing survivorship. Such partition irrespective of whether it is accompanied or followed by division of properties by metes and bounds covers both a division of right and division of property (see Approviar v. Rama Subha Aiyar (1886) 11 M. I. A. 75 quoted with approval in Smt. Krishnabai Bhritar Ganpatrao Deshmukh v. Appasaheb Tuljaramarao Nimbalkar and Ors.. A disruption of joint family status by a definite and unequivocal indication to separate implies separation in interest and in right, although not immediately followed by a de facto actual division of the subject-matter. This may at any time, be claimed by virtue of the separate right (see Girja Bai v. Sadashiv MANU/PR/0097/1916 : 41 I. A. 151. A physical and actual division of property by metes and bounds follows from disruption of status and would be termed partition in a broader sense."
Para 20 of the judgment is also relevant and thus reproduced hereinbelow:-
"20. Partition can be partial qua person and property but a partition which follows disruption of a joint family status will be amongst those who are entitled to a share on partition. On death of Karappan, Kesavan, the son of the second wife obtained a physical partition of the property, took his own share and left the family. There was first a disruption of the joint family by specifying the shares in Ext. P-1. Till disruption of joint family status takes place no coparcener can claim what is his exact share in coparcenary property. It is liable to increase and decrease depending upon the addition to the number or departure of a male member and inheritance by survivorship. But once a disruption of joint family status takes place, coparceners cease to hold the property as joint tenants but they hold as tenants-in-common. Looking to the terms of Ext. P-1 there was a disruption of joint family status, the shares were specified and vested, liabilities and obligations towards the family members were defined and imbalance out of unequal division was corrected. This certainly has effect of bringing about disruption of joint family status and even if there was no partition by metes and bounds and the coparceners continued to remain under the same roof or enjoyed the property without division by metes and bounds, they did not hold as joint tenants unless reunion is pleaded and proved."
16. The principles evolved and noticed in the aforesaid judgments are in the context of partition of an undivided Hindu family, or joint family, have no relevance for the purposes of construing "undivided family", which has a wider connotation under Section 4 of the Act and cannot be restricted to personal law. Law in that regard has been dealt with in the case of Dorab Cawasji (supra). Paras 18 to 22 of the judgment are relevant and are thus reproduced:-
"18. The first point that has to be considered, therefore, is whether one can have a reasonably certain view at this stage before the actual trial that the suit property is a 'dwelling house belonging to an undivided family' within the meaning of section 44 of the Act. As to what is the meaning of these words in the section, the leading case is the one decided by the Full Bench of the Allahabad High Court in Sultan Begam and Ors. v. Debi Prasad, MANU/UP/0089/1908 : [1908] ILR 30 All 324. That was concerned with the meaning of the phrase "dwelling house belonging to an undivided family" in section 4 of the Partnership Act, 1893. That section 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 share- holder 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. The argument was that the words 'undivided family' as used in the section mean a joint family and are confined to Hindus or to Muhammadans, who have adopted the Hindu rule as to joint family property. The counter argument was that the expression is of general application and means a family whether Hindu, Muhammadan, Christian etc. possessed of a dwelling house which has not been divided or partitioned among the members of the family. The case itself related to a Muslim family to whom the house belonged. The full Bench observed:
"... in it (section 4 of the Partition Act) we find nothing to indicate that it was intended to apply to any limited class of the community. The words 'undivided family' as used in this section appear to be borrowed from section 44 of the Transfer of Property Act. The last clause of that section prescribes that where the transferee of a share of a dwelling house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the dwelling house. This provision of the Statute is clearly of general application, and the effect of it is to compel the transferee of a dwelling house belonging to an undivided family, who is a stranger to the family, to enforce his rights in regard to such share by partition. There appears to me to be no reason why the words 'undivided family' as used in section 4 of the Partition Act, should have a narrator meaning than they have in section 44 of the Transfer of Property Act. If the Legislature intended that section 4 should have limited operation, we should expect to find some indication of this in the language of the section. For example, instead of the words 'undivided family' the expression 'undivided Hindu family' or 'joint family' might have been used.
With reference to the object and purpose of such a provision the Full Bench further observed:
"as was pointed out by Mr. Wells, Judicial Commissioner, in the case of Kalka Parshad v. Bankey Lall, [1906] 9 Oudh Cases, 158 is to prevent a transferee of a member of a family who is an outsider from forcing his way into a dwelling house in which other members of his transferor's family have a right to live, and that the words 'undivided family' must be taken to mean 'undivided qua the dwelling house in question, and to be a family which owns the house but has not divided it'."
19. Again in construing the word "family" and 'undivided family' a Division bench of the Calcutta High Court in Khirode Chandra Ghoshal & Anr. v. Saroda Prosad Mitra, MANU/WB/0199/1910 : [1910] 7 IC 436 observed:
"The word 'family', as used in the Partition Act, ought to be given a liberal and comprehensive meaning, and it does include a group of persons related in blood, who live in one house or under one head or management. There is nothing in the Partition Act to support the suggestion that the term 'family' was intended to be used in a very narrow and restricted sense, namely, a body of persons who can trace their descent from a common ancestor."
20. The decision in Nil Kamal Bhattacharjya & Anr. v. Kamakshya Charan Bhattacharjya & Anr., MANU/WB/0068/1928 : AIR 1928 Cal. 539 related to a case of a group of persons who were not the male descendants of the common ancestor to whom the property in the suit originally belonged but were respectively the sons of the daughter of a grandson of the common ancestor and the sons of a daughter of a son of the said common ancestor. The learned Judge applied the principle enunciated in Sultan Begam v. Debi Prasad, (supra) to this family and held that it was an undivided family since the house had not been divided by metes and bounds among themselves. The Madras High Court also followed and applied the ratio of this judgment in the decision in Sivaramayya v. Venkata Subbamma & Ors., MANU/TN/0150/1929 : AIR 1930 Madras 561. The next decision to be noted is the one reported in Bhim Singh v. Ratnkar., MANU/OR/0060/1971 : AIR 1971 Orissa 198. In that case the undivided family consisted of the plaintiff and the defendants 1 and 2 therein. The first defendant had alienated 1/3 of his half share in the house property in favour of defendants 7 and 10 who were the appellants before the High Court. The suit was filed for a permanent injunction restraining defendants 7 and 10 from jointly possessing the disputed house alongwith the plain- tiff and defendant 2. The facts as found by the courts were that by an amicable arrangement among plaintiff and defendants 1 and 2 they were living separately for a long time, had separated their residences and were living in different houses unconnected with each other but all situate in one homestead and that after the first defendant had alienated his separate interest as well as his separate house in favour of the alienees and in pursuance thereof the alienees were put in possession. After referring to the judgments we have quoted above and following the principles therein, Ranganath Misra, J. as he then was held:
"If in this state of things, a member of the family transfers his share in the dwelling house to a stranger paragraph 2 of section 44 of the Transfer of Property Act comes into play and the transferee does not become entitled to joint possession or any joint enjoyment of the dwelling house although he would have the right to enforce a partition of his share. The object of the provision in section 44 is to prevent the intrusion of the strangers into the family residence which is allowed to be possessed and enjoyed by the members of the family alone in spite of the transfer of a share therein in favour of a stranger. The factual position as has been determined is that the property is still an undivided dwelling house, possession and enjoyment whereof are confined to the members of the family. The stranger-transferees being debarred by law from exercising right of joint possession which is one of the main incidences of co-ownership of the property should be kept out."
On the question whether the enjoyment of ascertained separate portions of the common dwelling house and the alienee taking possession made any difference the learned Judge quoted the following passage from Udayanath Sahu v. Ratnakar Bej, MANU/OR/0063/1967 : AIR 1967 Orissa 139 with approval:
"If the transferee (stranger) get into possession of a share in the dwelling house, the possession becomes a joint possession and is illegal. Courts cannot countenance or foster illegal possession. The possession of the defendant-transferee in such a case becomes illegal. Plaintiff's co-owners are entitled to get a decree for eviction or even for in- junction where the transferee threatens to get possession by force. If there had been a finding that there was severance of joint status but no partition by metes and bounds, defendant 1 was liable to be evicted from the residential houses and Bari under section 44 of the T.P. Act." The learned Judge further held:
The last contention of Mr. Pal is that the plaintiff sued for injunction only. The learned trial judge, however, has decreed ejectment of the transferee defendants and that decree has been upheld. Once it is held that the plaintiff is entitled to protection under the second part of section 44 of the Transfer of Property Act and the stranger purchasers are liable to be restrained, it would follow that even if the defendants have been put in possession or have come jointly to possess they can be kept out by injunction. The effect of that injunction would necessarily mean ejectment. In that sense and to the said extent, the decree of the trial court upheld by the lower appellate court must be taken to be sustainable. The remedy of the stranger purchaser is actually one of partition. Until then, he is obliged to keep out from asserting joint possession."
21. We may respectfully state that this is a correct statement of the law. There could be no doubt that the ratio of the decisions rendered under section 4 of the Partition Act equally apply to the interpretation of the second paragraph of section 44 as the provisions are complementary to each other and the terms "undivided family" and "dwelling house" have the same meaning in both the sections.
22. It is not disputed that prior to 1951 the suit dwelling house belonged to the undivided family of the appellant and his father and they were owning the same as joint tenants. The High Court has relied on a letter dated 12th March, 1951 of the appellant to his father in which the appellant had expressed a desire to retain his share separately so as to enable him to dispose of the same in a manner he chooses and also enable his heirs to succeed. In pursuance of this letter the appellant and his father executed an agreement dated 23rd of August, 1951 by which they declared that they have severed their status as joint tenants and that hence- forth they were holding the said piece of land and building as tenants in common in equal undivided half share. In the view of the High Court this conversion of joint tenancy of an undivided family into a tenancy in common of the members of that undivided family amounts to a division in the family itself with reference to the property and that, therefore, there shall be deemed to have been a partition between the appellant and his father. In support of this conclusion the High Court also relied on the further fact that subsequent to the death of the father and marriage of Sohrab the appellant's family and Sohrab's family were occupying different portions of the suit property and enjoying the same exclusively. We are afraid that some notions of co-parcenary property of a Hindu joint family have been brought in which may not be quite accurate in considering section 44; but what is relevant for the purpose of these proceedings was whether the selling house belonged to an undivided family. We have already pointed out that even if the family is divided in status in the sense that they were holding the property as tenants in common but undivided qua the property that is the property had not been divided by metes and bounds it would be within the provisions section 44 of the Act."
17. In H. Vasudeva Pai v. Kamarunnisa, 2011 (15) SCC 768, the issue of applicability of Section 4 has again been examined at length to hold that even if family is divided in status, in the sense that they were holding the property as tenants in common, but undivided qua the dwelling house in question, and is yet to be divided by metes and bounds, would be covered within the provisions of Section 4 of the Act. Para 4 to 10 of the aforesaid judgment is relevant and is accordingly reproduced hereinbelow:-
"4. The learned District Judge referred to Mayne's Hindu Law and Usage and emphasised the concept of a joint Hindu family and was at pains to point out that the evidence on record did not warrant a finding that the Pai brothers constituted a joint Hindu family. It was only on account of this finding that the learned Judge persuaded himself to hold that section 4 of the partition act did not apply and that the appellant had no preemptive right to purchase the share of the property bought by the respondent.
5. Learned counsel for the appellant has referred to the judgment of this Court in Dorab Cawasji Warden v. Coomi Sorab Warden MANU/SC/0161/1990 : 1990 2 SCC 117. This was a case arising under section 44 of the transfer of property act. section 44 of the transfer of property act also has a similar provision which reads as under:
"44. Transfer by one co-owner.--Where one of two or more co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires, as to such share or interest, and so far as is necessary to give effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting, at the date of transfer, the share or interest so transferred.
Where the transferee of a share of a dwelling house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house."
6. This Court pointed out that in order to attract the second para of Section 44, the subject-matter of the transfer has to be a dwelling house belonging to an undivided family and the transfer should be of a share in the same to a person who is not a member of the family. In order to satisfy the first ingredient, the plaintiff would have to show that the suit property is a dwelling house and it belongs to an undivided family.
7. With regard to the restriction on the rights of a transferee for joint possession, this Court pointed out that the dominant purpose of the second para of section 44 of the transfer of property act is that there is a danger of an injury or violation of the corresponding rights of the other members of the family and an irreparable harm to the plaintiff and the Court's interference would be necessary to protect the interest of the plaintiff. After referring to Sultan Begam v. Debi Prasad MANU/UP/0089/1908 : ILR 1908 30 All 324, Nil Kamal Bhattacharjya v. Kamakshya Charan Bhattacharjya MANU/WB/0068/1928 : AIR 1928 Cal 539 and, Kshirode Chunder Ghoshal v. Saroda Prosad Mitra MANU/WB/0199/1910 : 1910 7 IC 436 (vide IC para 23), this Court observed that the proposition of law stated in Udayanath Sahu v. Ratnakar Bej MANU/OR/0063/1967 : AIR 1967 Ori 139 was a correct statement of law. We may mention that all these judgments noted by this Court were cases where a stranger to the family attempted to get joint possession of the dwelling house on the ground that the stranger had purchased an undivided share in the property. This Court pointed out in Dorab Cawasji case that the provisions of section 4 of the partition act were pari materia with the provisions of section 44 of the transfer of property act, 1882. It was observed that the notions of the coparcener property of a Hindu joint family were wholly irrelevant in considering section 44 of the transfer of property act and what is relevant for the purpose of such proceeding is whether the dwelling house belonged to an undivided family. Says, the Court:
"We have already pointed that even if the family is divided in status in the sense that they were holding the property as tenants in common but undivided qua the property, that is the property had not been divided by metes and bounds, it would be within the provisions of Section 44 of the Act" (vide SCC pp. 131-32, para 24).
8. In our view, the judgment of this Court in Dorab Cawasji case clinches the issue. Although the evidence in the present appeal shows that two of the Pai brothers were residing elsewhere, there is no evidence to show that qua the suit property, the Pai brothers had separated or that there was any inter se partition effected vis-à-vis the suit property.
9. In these circumstances, we are of the view that the application made by the appellant under section 4 of the partition act was fully justified and the trial court was right in allowing the said application.
10. In the result, we set aside the judgment of the High Court as well as that of the District Judge and affirm the judgment of the civil court allowing the appellant's application under section 4 of the partition act."
18. In view of the discussions made hereinabove, the inescapable conclusion is that the dwelling house in question is yet to be divided by metes and bounds and a final decree of partition is yet to be drawn, and as such it would continue to remain undivided in law, so as to attract Section 4 of the Act. Thus the order of Revisional Court neither suffers from any error of jurisdiction nor occasions failure of justice, so as to warrant invocation of jurisdiction under Article 227 of the Constitution of India.
19. Petition is dismissed. Costs made easy.
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