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Masitullah and anr. Vs. Umrao and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1929All414
AppellantMasitullah and anr.
RespondentUmrao and ors.
Excerpt:
- - the learned munsif in a well reasoned judgment came to the conclusion that the defendants were entitled to the benefit of section 4, partition act. 364. 5. the above conditions have been satisfied in this case and the courts below have properly granted to the defendants respondents the benefit of section 4. 6. it has been urged that section 4 does not apply because the share of a dwelling house belonging to an undivided family has not been transferred......to have much the same meaning as the words 'undivided family' in clause (2), section 44, t.p. act.7. section 4 is fully applicable to the facts of the present case. no estoppel can arise against the defendants for their not having claimed the benefit of section 4 in the former suit (suit no. 1196 of 1922) the sale to plaintiffs 1 and 2 has given rise to a fresh cause of action and there is nothing in law to preclude the defendants from exercising their statutory right under section 4, partition act. the appeal is dismissed with costs.
Judgment:

Sen, J.

1. This is a plaintiffs' appeal arising out of a suit for partition of a dwelling house which is situate in mohalla Jatan in the city of Bijnore. The house originally belonged to an undivided Hindu family and was owned by different members of the family in unequal shares and who occupied different portions of the house property. Mt. Kallo, plaintiff 2 purchased a one-sixth share of the house from Ghasi and instituted a suit for partition against the defendants. This was suit No. 1196 of 1922. The defendants did not claim the benefit of Section 4, Partition Act (Act 4 of 1893).

2. The plaintiffs 1 and 2 have purchased the shares of two other members of the family namely Tula and Umrao. The extent of their share in the entire house is two-fifth. The present suit was instituted for the partition of this share. The defendants claimed the benefit of Section 4, Partition Act. The learned Munsif in a well reasoned judgment came to the conclusion that the defendants were entitled to the benefit of Section 4, Partition Act. The plaintiffs appealed. The lower appellate Court has affirmed the decision of the trial Court.

3. The sole question in this appeal is whether the defendants are entitled to the benefit of Section 4, Partition Act. A right to partition being one of the incidents of proprietary right held in co-ownership cannot ordinarily be resisted. Where the effect of the partition is calculated to destroy the intrinsic value of the entire property it should be more in keeping with equity, not to allow the partition but to grant a money compensation.

Section 4(1), Partition Act, provides:

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 he thinks fit, and direct the sale of such share to such shareholder, and may give all necessary and proper directions in that behalf.

4. Section 4 of this Act is an enabling section but it ought to be strictly construed as it raises a statutory bar to the exercise of the right of partition in derogation of the right under the ordinary law. The object of this section is to enable the members of an undivided family to buy out a stranger who has purchased the share of one or the other of the co-owners. For the application of Section 4, four conditions ought to be fulfilled:

(1) The house should be owned by an undivided family.

(2) The share of a cosharer should have been transferred to a person who was a stranger to the family.

(3) The purchaser should have sued for partition and

(4) A member of the family being a share holder claims or undertakes to buy the share of the stranger transferee.

Khirode Chander Ghosal v. Saroda Prasad Mitra [1910] 12 C.L.J. 525, and Gobardhan Das v. Hari Lal [1913] 35 All. 364.

5. The above conditions have been satisfied in this case and the Courts below have properly granted to the defendants respondents the benefit of Section 4.

6. It has been urged that Section 4 does not apply because the share of a dwelling house belonging to an undivided family has not been transferred. It has been argued that the family became divided in 1922 when one of the members sold his interest in the house to plaintiff 2 and that by reason of the partition decree in Suit No. 1196 of 1922 the integrity of the dwelling house was broken up. The argument is plausible but has no substance. The effect of the partition of 1922 was to cut off a portion of the house but to leave the rest of the house as a separate and independent entity. The rest of the house was a compact whole held by a number of cosharers who were members of an undivided family having a community of interest. The portion left undivided must be regarded as a separate unit. That it is a dwelling house is a fact which admits of no doubt. The separated block ceases to have any concern with the outgoing member whose share had been sold but was held in co-ownership by the rest of the members of an undivided family. The term 'undivided family' in Section 4 has not been used in a technical sense and is applicable to Hindus and Muhammadans alike and must be held to have much the same meaning as the words 'undivided family' in Clause (2), Section 44, T.P. Act.

7. Section 4 is fully applicable to the facts of the present case. No estoppel can arise against the defendants for their not having claimed the benefit of Section 4 in the former suit (Suit No. 1196 of 1922) The sale to plaintiffs 1 and 2 has given rise to a fresh cause of action and there is nothing in law to preclude the defendants from exercising their statutory right under Section 4, Partition Act. The appeal is dismissed with costs.


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