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Sakhawat Ali Vs. Ali HusaIn and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 909 of 1949
Judge
Reported inAIR1957All356
ActsPartition Act, 1893 - Sections 4 and 4(1); Code of Civil Procedure (CPC) , 1908
AppellantSakhawat Ali
RespondentAli HusaIn and ors.
Appellant AdvocateGopal Bihari and ;Satish Chandra, Advs.
Respondent AdvocateAmbika Prasad, Adv.
Excerpt:
property - possession - section 4 of partition act, 1893 - suit for possession for entire dwelling house is not a suit for partition - suit brought by co-sharer against the transferee of another co-sharer - it is in the nature of suit for pre-emption. - - 850 of 1952: air1956all687 .in that, case the bench has accepted it as a well known principle that 'a party to a partition suit, whether plaintiff or defendant, is for many purposes at the same time a plaintiff as well as a defendant'.the decision of the patna high court in sheodhar prasad singh v. ' it is a well established principle that a party to a partition suit, whether plaintiff or defendant, is for many purposes at the same time a plaintiff as well as a defendant; , (as he then was) said- in a suit for partition, the parties to..........before the bench of this court the defendant transferee had neither entered into possession of the dwelling house nor had he sought to claim a share therein and he could not in these circumstances be deemed to be a transferee who sues for partition within the meaning of section 4 of the act.2. in the present second appeal, however, the defendants appear to have been parties to an earlier litigation which ended in a compromise and some of the owners of the property acknowledged in that compromise that the defendants were owners of 1/48th of the house. there is a dispute as to whether in the circumstances of the case the defendants could be held to have acquired an interest in the property by a transfer and were transferees within the meaning of section 4. the lower appellate court took.....
Judgment:

Upadhaya, J

1. In this second appeal the main question to be decided is as to whether the plaintiff appellant is entitled to the benefit of Section 4 of the Partition Act. The decision of a learned single Judge of this Court in Rukmi Sewak v. Mt. Munesari : AIR1953All332 , has been overruled by a bench of this Court in Ramzan Baksh v. Nizamuddin, S. A. No. 850 of 1952: : AIR1956All687 . In that, case the bench has accepted it as a well known principle that 'a party to a partition suit, whether plaintiff or defendant, is for many purposes at the same time a plaintiff as well as a defendant'. The decision of the Patna High Court in Sheodhar Prasad Singh v. Kishun Prasad Singh, AIR 1941 Pat 4 (C), and the decision of the Calcutta High Court in Abu Isa Thakur v. Dinabandhu Banik : AIR1947Cal426 , were considered by the bench to be distinguishable on facts.

It was, however, observed that the bench found it unnecessary to 'venture upon the opinion as to whether the view should be followed.' In the case before the bench of this Court the defendant transferee had neither entered into possession of the dwelling house nor had he sought to claim a share therein and he could not in these circumstances be deemed to be a transferee who sues for partition within the meaning of Section 4 of the Act.

2. In the present second Appeal, however, the defendants appear to have been parties to an earlier litigation which ended in a compromise and some of the owners of the property acknowledged in that compromise that the defendants were owners of 1/48th of the house. There is a dispute as to whether in the circumstances of the case the defendants could be held to have acquired an interest in the property by a transfer and were transferees within the meaning of Section 4. The lower appellate Court took the view that they were not such transferees.

3. The lower appellate court considered that the rule laid down by the Patna High Court in (AIR 1941 Pat 4) (C), was applicable to the facts of the case and the plaintiff was entitled to thebenefits of Section 4 of the Partition Act. The defendants are in possession of the house in suit and the facts of this case do not appear to be covered by the decision of the bench in S. A. No. 850 of 1952: : AIR1956All687 . I am of opinion, therefore, that this case should be placed before the Hon'ble the Chief Justice for being referred to a bench.

(Order of reference by Division Bench consisting of Mootham C. J. and Shrivastava J.) MOOTHAM C. J.:

4. This is an appeal from judgment and decree of the Civil Judge of Azamgarh dated the 17th August, 1946, setting aside the judgment and decree of the 1st Additional Munsif of Azamgarh dated the 7th January, 1946. For the purposes of this appeal the facts can be very shortly stated.'

5. The appellant, who is admittedly the owner of a 47/48ths share in a house, brought a suit for possession, or alternatively for partition, of that house. The defendants were respondents Nos. 1 to 9, who are admittedly in possession of the house and certain other persons who were originally co-sharers and were joined as pro forma defendants. The suit was founded on the allegation that respondents Nos. 1 to 9 were the transferees of a 1/48th share from certain former co-sharers; and the appellant claimed that under Section 4 of the Partition Act he was entitled to possession of the entire house upon payment, to these respondents of the value of their 1/48 share. The suit was decreed by the trial court, but the lower appellate court set aside the trial court's decree on the ground, first, that respondents Nos. 1 to 9 were not transferees within the meaning of Section 4 of the Partition Act, and, secondly, because the house was not a dwelling house within the meaning of that section. Respondents Nos. 1 to 9, who are the only contesting respondents, do not now contend that the house is not a dwelling house. They rest their case on their contention that they are not transferees and that, even if they are, Section 4 of the Partition Act has no application.

6. With regard to the first of these submissions the argument of learned counsel is that these respondents are not transferees because in a redemption suit which was filed by the appellant there was an adjustment of claims under which two of the co-sharers acknowledged the ownership by these respondents of a 1/48th share. It is argued that this was merely an acknowledgment of a previously existing right and is not evidence of a change of ownership from one person to another which this Court laid down in Sohni v. Raj Kumar Singh Jain : AIR1932All678 , as the test of whether a person had become a transferee within the meaning of Section 4 of the Partition Act. We think that the short answer to this contention is that in the written statement which was filed by these respondents they have themselves said that they acquired their 1/48th share in the house in question by purchase. We are of opinion therefore that it is no longer open to these respondents to contend that they are not transferees within the meaning of Section 4.

7. The second submission, namely whether in these circumstances Section 4 has any application, gives rise to a question of some difficulty and having heard learned counsel we think it proper to refer to a full Bench the following question for its consideration, namely-

'Whether a share holder in dwelling house belonging to an undivided family can take advantage of Section 4 of the Partition Act in a suit for possession of the entire house and/or for partitionin which he is the plaintiff and the transferee in possession is defendant'.

The record will accordingly be laid before the Hon. the Chief Justice for the constitution of a bench.

Mootham, C.J.

8. The question which has been referred to this Bench is

'Whether a share-holder in a dwelling-house belonging to an undivided family can take advantage of Section 4 of the Partition Act in a suit for possession of the entire house and/or for partition in which he is the plaintiff and the transferee in possession is a defendant.'

Now Section 4 of the Partition Act, so far as is material, provides that

'4. (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 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 share-holder, and may give all necessary and proper directions in that behalf.'

It is a well established principle that a party to a partition suit, whether plaintiff or defendant, is for many purposes at the same time a plaintiff as well as a defendant; and it has been held that if a defendant transferee in a suit for partition claims a share in the dwelling-house he can be treated as a plaintiff for the purposes of Section 4. In : AIR1956All687 , this principle was affirmed by this Court, but it was held that a defendant transferee who had neither entered into possession of the dwelling-house nor had claimed a share therein was not and could not be deemed to be a transferee who sues for possession within the meaning of Section 4. The correctness of that decision is not challenged in this reference.

9. It is however contended that the legal position is different if the defendant transferee is in possession of the whole or part of the dwelling-house. In such circumstances, it is argued, the transferee defendant in a suit by a share-holder, whether for possession of the entire house or for partition, must be deemed to be a 'transferee who sues for partition' within the meaning of Section 4(1) even though he himself makes no claim to a separate share.

10. Our attention has been invited to a number of authorities, but not all of them supported the argument which has been advanced. In Satyabhama De v. Jatindra Moban Deb : AIR1929Cal269 and Laxman Dhondupant Borikar v. Mt. Lahana Bai, AIR 1937 Nag 4 (G), the decision in each case was found on the fact that the defendant transferee applied for a share in the dwelling-house the subject of the suit and could therefore properly be treated as if he were a transferee suing for possession. In Haradhone Haldar v. Usha Charan Karmakar : AIR1955Cal292 , the suit was for a declaration that the first defendant (a transferee who had obtained a decree for joint possession) was not entitled to joint possession of the suit properties and for an appropriate injunction or, in the alternative, for pre-emption of the half share which the first defendant had purchased from the plaintiff's brother, and it is clear from page 294 of the judgment that the first defendant not only claimed a title to that half share but asserted his right to a separate allotment.

11. A wider view was however taken in : AIR1947Cal426 , which supports the contention now advanced. In that case the defendants had purchased the half share of one of the two co-owners of a plot comprising a homestead, tank and garden and the suit was for purchase of the share of the defendants or, in the alternative, for partition of the desputed plot. Das, J., (as he then was) said-

'In a suit for partition, the parties to the suit are in the position of counter-claimants and it can very well be predicated of a defendant in a suit for partition that he is suing for partition,' and on this ground the learned Judge held that the plaintiff was entitled to relief under Section 4. A similar view had been taken earlier by Dhavle, J. in AIR 1941 Pat 4 (C), and these decisions were followed in Banchhanidhi v. Balaram : AIR1951Ori180 and by this Court in : AIR1953All332 .

12. The principal question, to be decided is the meaning which must be given to the words 'such transferee sues for partition' in Section 4, Prima facie these words imply that in order to come within the ambit of the section the suit must be filed by the transferee, and such appears to be the view of the-Bombay High Court, see Balshet v. Miransaheb, ILR 23 Bom 77 (J) and Khanderao Dattatraya v. Balkrishna Mahadev, ILR 46 Bom 341: (AIR 1922 Bom 121) (K), The object of the section is however to prevent the intrusion of strangers into the dwelling house of an undivided family, and it has been held by other High Courts that the section should on equitable grounds be so interpreted that it may cover those cases also in which the stranger, although defendant in the suit for partition, claims to be allotted his share, as by making such claim he may legitimately be deemed to be suing for partition. Suppose however that the transferee defendant makes no such claim; can the plaintiff obtain the benefit of Section 4? In our opinion he cannot do so and we think it makes no difference whether the transferee defendant be in possession of the dwelling house (or part thereof) or not.

13. It is no doubt true, as was said in Assan v. Pathumma, ILR 22 Mad 494 (L)

'In a suit for partition each co-owner, as against another, occupies in himself the role of plaintiff as well as defendant. It is in consequence of the reciprocal character of the right which co-owners have in the matter of partition that even those who are not actual plaintiffs can claim, that their shares be allotted to them by the decree,'

but the similarity in the roles cannot be extended to the point of identity. We have been referred to the definition of the words 'to sue' in Stroud's Judicial Dictionary where it is said that these words may be applied indifferently either to the defendant or plaintiff, and may not only signify to prosecute but to defend.

Where however a word or phrase has more than one meaning, that which is to be attributed to it in a particular case must depend on the context in which it is used. In the context in which the word 'sues' is used in Section 4(1) we do not think that the legislature intended this word to mean also 'or is a defendant in a suit.' In our opinion it was clearly the intention of the legislature that the right conferred by Section 4 should accrue to the member of the undivided family only in the event of the transferee seeking to obtain partition of his share in the dwelling house, and we hold therefore that the provisions of Section 4(1) will not apply to a suit for partition in which the stranger defendant does not himself claim the separation ofhis share. It may be that the construction which in our view should be placed on this sub-section will in some instances, deprive a plaintiff of a relief to which under a wider interpretation he would be entitled, but as has been pointed out in Butchi Ramayya v. Venkata Subbarao : AIR1950Mad214 , a decision with which we respectfully agree, the equity of the statute cannot override its plain meaning.

14. A suit for possession of the entire dwelling house is not a suit for partition. When such a suit is brought by a co-sharer against the transferee of another co-sharer it is in the nature of a suit for pre-emption, and although Section 4(1) does confer a right of pre-emption on a co-sharer against the stranger transferee that right is limited in its scope. It can be claimed, in our opinion only if the transferee either sues for partition himself or makes the same claim when he is impleaded as a defendant in such a suit. That section does not entitle a co-sharer to buy out the stranger transferee whenever he likes unless the transferee is claiming a partition of his share either as a plaintiff or as a defendant.

15. It was not strictly necessary for this Court in : AIR1956All687 , to overrule the earlier decision of : AIR1953All332 , as the latter case was distinguishable on facts, but in view of what we have said the decision in Rukmi Sewak's case (A) cannot be held to be correct. In that case the defendant was in possession of share in a dwelling house which he had acquired from one of the co-owners. A suit was filed against him for partition by one of the other co-owners, and although the defendant made no claim for the separation of his share, Mushtaq Ahmad, J. granted the plaintiff the benefit of Section 4 of the Partition Act on the ground that that section applied irrespective of whether the transferee of a share is the plaintiff or the defendant. For the reasons we have given, we think that case was not rightly decided.

16. We answer the reference in accordance with the opinion expressed in this judgment.


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