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Smt. Saira Wife of Mohd. Ishaq Vs. Smt. Mariyam Wife of Abdul Sattar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Judge
Reported inAIR2007All179
AppellantSmt. Saira Wife of Mohd. Ishaq
RespondentSmt. Mariyam Wife of Abdul Sattar
DispositionAppeal dismissed
Cases ReferredRam Sahai v. Board of Revenue and Ors.
Excerpt:
.....share in the dwelling house and accordingly can be effectively denied entry in any part of such family dwelling house. act represents a well-knit legislative scheme for insultating the domestic peace of members of undivided family occupying a common dwelling house from the encroachment of a stranger transferee of the share of one undivided co-owner as the remaining co-owners are presumed to follow similar traditions and mode of life and to be accustomed to identical likes and dislikes and identical family traditions. thus even though a liberal interpretation may be given, the interpretation cannot be one which gives a right which the legislatures clearly did not intend to confer. the legislature was aware that on an actual division, like all other co-sharers, the stranger/outsider..........that 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 the family;(3) such transferee must sue for partition and separate possession of the undivided share transferred to him by the co-owner concerned;(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 preemption by the existing co-owner of the dwelling house belonging to the undivided family, the court should.....
Judgment:

Dilip Gupta, J.

1. This Second Appeal has been filed by the plaintiff for setting aside the, judgment and decree passed by the learned 1st Additional District Judge, Jhansi by which the Civil Appeal has been partly allowed and the judgment and decree of the Trial Court has been modified.

2. The plaintiff had filed the suit for partition of her 28/32 share in the disputed house alleging that Smt. Mariyam who was the exclusive owner of the house sold it to Sri Ved Prakash by a registered sale deed dated 1st March, 1950 and subsequently Sri Ved Prakash sold the house to the plaintiff Smt. Saira by a sale deed dated 24th May, 1971. The plaintiff afterwards came to know that the defendant Smt. Sakina had 4/32 share in the house by virtue of a decree passed in Suit No. 75 of 1960 and, therefore, she claimed partition of the house for her 28/32 share and for possession over that share.

3. The case set up by the defendant was that the house belonged to her father Rasool Khan who after his death left his widow Smt. Jumra and after her death the property was inherited by Smt. Mariyam and her other sisters and three brothers. It was, therefore, stated that Smt. Mariyam had no right to sell the whole house to Ved Prakash and in fact the defendant was in possession of the whole house. It was also stated that in case the share of the plaintiff was partitioned, the defendant be allowed to purchase that share on payment of Rs. 1500/- or the price fixed by the Court because it was a residential house.

4. The Trial Court held that the plaintiff had 28/32 share in the house and that the defendant being only a co-sharer of a small portion was not entitled to purchase the share of the plaintiff. The Trial Court, therefore, decreed the suit only for partition of 28/32 share of the plaintiff.

5. Civil Appeal No. 51 of 1974 was filed by the defendant. The Lower, Appellate Court framed two points for determination namely whether the plaintiff had 28/32 share in the house and whether the defendant was entitled to purchase the share of the plaintiff under Section 4 of the Partition Act, 1893 (hereinafter referred to as the 'Partition Act').

6. As regards the first point, the only issue before the Lower Appellate Court was whether the plaintiff had 28/32 share because both the parties admitted that the defendant Smt. Sakina had 4/32 share. The Lower Appellate Court noticed that Smt. Mariyam had sold the house in the year 1950 to Ved Prakash claiming herself to be the owner of the entire house but that sale deed was cancelled in the suit filed by the defendant Smt. Sakina to the extent that Suit. Sakina had 4/32 share in the house and, therefore, the sale deed in favour of Ved Prakash was valid so far as it purported to transfer 28/32 share. The Lower Appellate Court, therefore, concluded that, the share of Yed Prakash and thereafter plaintiff Smt. Saira was to the extent of 28/32. The Lower Appellate Court, therefore, agreed with the findings recorded by the Trial Court that the plaintiff Smt. Saira had 28/32 share in the house.

7. Regarding the second point, the Lower Appellate Court came to the conclusion that it was a residential house and that Smt. Saira was a stranger to the family and, therefore, the defendant Smt. Sakina, being a co-sharer and member of the undivided family, was entitled to purchase the share of the transferee under Section 4 of the Partition Act on the valuation to be made by the Court. In arriving at the said conclusion the Lower Appellate Court noticed that the dwelling house belonged to the undivided family and Smt. Mariyam and Smt. Sakina were real sisters. The share of Smt. Mariyam was transferred to Ved Prakash who was a stranger and thereafter to Smt. Saira who was also a stranger. The Lower Appellate Court thereafter valued the share of the plaintiff at Rs. 1325/- as that was the valuation indicated in the plaint. The finding recorded by the Trial Court that since the share of the defendant was very small and major share belonged to the plaintiff, the defendant should not be permitted to purchase that share was reversed as that was found to be contrary to the provisions of Section 4 of the Partition Act.

8. I have heard Sri K.N. Saxena, learned Counsel for the appellant and Sri S.K. Chaturvedi, learned Counsel appearing for the respondent.

9. The contention raised by Sri K.N. Saxena, learned Counsel for the appellant is that the Lower Appellate Court erred in law in modifying the decree of the Trial Court by directing that the defendant was entitled to purchase 28/32 share of the plaintiff upon depositing of Rs. 1325/- as the conditions stipulated under Section 4 of the Partition Act were not satisfied. He submitted that there was no averment in the written statement that the house in dispute belonged to an undivided family and in the absence of such an averment in the written statement, Section 4(1) of the Partition Act was not attracted.

10. Learned Counsel for the respondent, however, submitted that there was no infirmity in the findings recorded by the Lower Appellate Court as the conditions stipulated in Section 4(1) of the Partition Act were satisfied.

11. In order to appreciate the contentions advanced by the learned Counsel for the parties, it would be necessary to reproduce the relevant provisions of Section 4(1) of the Partition Act and the same is as follows:

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.

12. A perusal of the aforesaid Section 4(1) of the Partition Act clearly shows that where a share of 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 and if any member of the family undertakes to buy the share of such transferee then the Court shall make a valuation of such share and direct the sale of such share. The object of Section 4(1) of the Partition Act is to enable a member of the family to buy out a stranger transferee who seeks partition of a dwelling house.

13. The Supreme Court in Ghantesher Ghosh v. Madan Mohan Ghosh and Ors. : AIR1997SC471 elaborately dealt with the provisions of Section 4 of the Partition Act and noticed that 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 the family;

(3) Such transferee must sue for partition and separate possession of the undivided share transferred to him by the co-owner concerned;

(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 preemption 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.

14. It also noticed that the beneficial object underlying the said provisions must also be kept in mind and observed:

We have also to keep in view the avowed beneficial object underlying the said provision. Section 4 of the Partition Act read with Section 44 of the T.P. Act represents a well-knit legislative scheme for insultating the domestic peace of members of undivided family occupying a common dwelling house from the encroachment of a stranger transferee of the share of one undivided co-owner as the remaining co-owners are presumed to follow similar traditions and mode of life and to be accustomed to identical likes and dislikes and identical family traditions. This legislative scheme seeks to protect them from the onslaught on their peaceful joint family life by stranger-outsider to the family who may obviously be having different outlook and mode of life including food habits and other social and religious customs. Entry of such, outsider in the joint family dwelling house is likely to create unnecessary disturbances not germane to the peace and tranquility not only of the occupants of the dwelling house but also of neighbours residing in the locality and in the near vicinity. With a view to seeing that such homogeneous life of co-owner belonging to the same joint family and residing in the joint family dwelling house is not adversely affected by the entry of a stranger to the family, this statutory right of pre-emption is made available to the co-owners who undertake to buy out such undivided share of the stranger co-owner....

15. The aforesaid decision of the Supreme Court in Ghanteshar Ghosh (supra) was followed by the Supreme Court in Gautam Paul v. Debi Rani and Ors. : (2000)8SCC330 . It was also observed:.There is no law which provides that co-sharer must only sell his/her share to another co-sharer. Thus strangers/outsiders can purchase shares even in a dwelling house. Section 44 of the. Transfer of Property Act provides that the transferee of a share of a dwelling house, if he/she is not a member of that family, gets no right to joint possession or common enjoyment of the house. Section 44 adequately protects the family members against intrusion by an outsider into the dwelling house. The only manner in which an outsider can get possession is to sue for possession and claim separation of his share. In that case Section 4 of the can it ion Act comes into play. Except for Section 4 of the Partition Act there is no other law which provides a right to a co-sharer to purchase the share sold to an outsider. Thus before the right of pre-emption, under Section 4, is exercised the conditions laid down therein have to be complied with. As seen above, one of the conditions is that the outsider must sue for partition. Section 4 does not provide the co-sharer a right to pre-empt where the stranger/outsider does nothing after purchasing the share. In oilier words, Section 4 is not giving a right to a co-sharer to pre-empt and purchase the share sold to an outsider anytime he/she wants. Thus even though a liberal interpretation may be given, the interpretation cannot be one which gives a right which the legislatures clearly did not intend to confer. The legislature was aware that in a suit for partition the stranger/outsider, who has purchased a share, would have to be made a party. The legislature was aware that in a suit for partition the parties are interchangeable. The legislature was ware that a partition suit would result in a decree for partition and in most cases a division by metes and bounds. The legislature was aware that on an actual division, like all other co-sharers, the stranger/outsider would also get possession of his share. Yet the legislature did not provide that the right for pre-emption could be exercised 'in any suit for partition'. The legislature only provide for such right when the 'transferee sues for partition'. The intention of the legislature is clear. There had to be initiation of proceedings or the making of a claim to partition by the stranger/outsider. This could be by way of initiating a proceeding for partition or even claiming partition in execution....

16. It is, therefore, clear that the transferee of such undivided interest of, the co-owner should be an outsider or stranger to a family and he must sue for separate partition of the undivided share transferred to him by a co-owner.

17. The issue that arises for consideration in this Second Appeal is about the 'dwelling house belonging to an undivided family'. The emphasis is on the undivided character of the house and it is this attribute of the house which imparts to the family its character of an undivided family. The members of the family may have partitioned all their other joint properties and may have separated in mess and worship, but they would still be an undivided family in relation to the dwelling house so long as they have not divided it amongst themselves by metes and bounds.

18. The Calcutta High Court in Boto Krishna Gkose v. Akhoy Kumar Ghose AIR 1950 Cat. III while dealing with this issue observed:

If in this state of things a member of the family transfers his share in the dwelling house to a stranger, the position that arises is that para 2 of Section 44, T.P. Act , comes into operation and the transferee does not become entitled to joint possession or other common or part enjoyment of the house, although he would have the right to enforce a partition of his share. The object of this provision is to prevent the intrusion of strangers into the family residence which is allowed to be possessed and enjoyed by the member of the family alone in spite of the transfer of a share 10 a stranger. The factual position then is that it is still an undivided dwelling house, the possession and enjoyment of which are confined to the members of the family, the stranger transferee being debarred by law from exercising his right to joint possession which is one of the main incidents of co-ownership of property. Such a dwelling house can in our opinion still be looked upon as a dwelling house belonging to an undivided family, because the members of the family have not divided it amongst themselves and are in sole enjoyment and possession of it to the exclusion of the stranger transferee who has only a right to partition. And so long as the dwelling house has not been completely alienated to strangers as was the case in Vaman Vishnu Gokhale v. Vasudeo Morbhat Kale, successive transfers by other co-sharer members of the family do not alter the factual position in this respect because the remaining member or members of the family have the right to hold exclusive possession to the exclusion of the stranger alienees. So long as that situation lasts, the dwelling house, in our opinion, continues to be a dwelling house belonging to an undivided family.

19. The aforesaid decision clearly emphasises that so long as decree for partition of a family dwelling house does not get fully executed and the shares of co-owners do not get separate by metes and bounds and the co-owners are not put in actual possession of their respective shares, the dwelling house remains lo he common dwelling house of joint family and so long as that attributes remains, Section 4 of the Partition Act would continue to be attracted. The said decision of the Calcutta High Court was approved by the Supreme Court in Ghanteshar Ghosh (supra).

20. A Full Bench of Allahabad High Court in Sultan Begam v. Debi Prasad (1908) 1LR 30 All. 324 also considered the meaning of the words 'dwelling house belonging to an undivided family' in connection with Section 4 of the Partition Act and observed as follows:

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.

21. This decision was approved by the Supreme Court in Dorab Cawasji Warden v. Coomi Sorab Warden and Ors. : [1990]1SCR332 .

22. In the present case it was stated by Smt. Saira in the plaint that under the sale deeds executed by Sri Ved Prakash she became the owner of the entire house in dispute but subsequently it transpired that 4/32 share of the house had been purchased by the defendant Smt. Sakina in Original Suit No. 75 of l%0 filed by Smt. Sakina against Ved Prakash and, therefore, the suit for partition was filed with a prayer that her share of 28/32 in the house may be partitioned by metes and bounds and she may be put in possession of that portion. In the written statement filed by Smt. Sakina it was stated that she was the owner of 4/32 share in the house in dispute and so far as the remaining share was concerned the defendant and the other heirs of Rasool Khan were also the owners of the house in dispute. It was also stated in paragraph 11 of the written statement that the house in dispute was the ancestral house of the defendant and the defendant was born in the same

23. It is true that it was not specifically pleaded in the written statement that the dwelling house belonged to the undivided family but a perusal of the of the plaint and the written statement clearly shows that there had been no division in the family by metes and bounds. The defendant had clearly stated that she was residing in the residential house in her own right and as a co-sharer. This clearly implies that partition by metes and bounds had not taken place. It also needs to be mentioned that if partition had taken place then there would have been no occasion for the plaintiff to have filed the suit for partition and possession of her 28/32 share in the house. It needs to be mentioned that only two contentions were raised by the plaintiff before the Lower Appellate Court, that the undivided family ceased to be an undivided family when the share of Smt. Sakina was determined in the suit filed in the year 1960 for cancellation of the sale deed and that as Smt. Sakina was not residing in the house it would not be an undivided dwelling house. These contentions were repelled by the Lower Appellate Court holding that no partition had taken place by metes and bounds and that even if Smt. Sakina was not residing, then too it would still be an undivided family. It is, therefore, clear that before the Appellate Court it was not disputed by the plaintiff that it was a dwelling house belonging to the undivided family and rightly so because the suit had been filed for partition of the house. Thus the contention of the learned Counsel for the appellant that as there was no averment in the written statement, the benefit of Section 4 of the Partition Act could not be given cannot be accepted.

24. Learned Counsel for the appellant then submitted that as the defendant was married and was not residing in the house, she could not be a member of the undivided family. This submission cannot also be accepted as a liberal meaning has to be given to the word 'family' and ii was not necessary for the defendant to have been residing in the house. It has been pointed out by Calcutta High Court in Boto Krishna Ghose (supra) that so long as a decree for partition of a dwelling house does not get fully executed and the shares of co-owners are not separated by metes and bounds and the co-owners are not out in possession of the respective shares, the dwelling house remains to be a dwelling house of the joint family. Thus, it is more than apparent that it was an undivided-dwelling house and there is no infirmity in the finding recorded by the Lower Appellate Court.

25. Learned Counsel for the appellant also contended that no issue had; been framed in the Trial Court as to whether the plaintiff was entitled to the benefit of Section 4 of the Partition Act. This contention of the learned Counsel for the appellant cannot be accepted as Issue No. 2 framed before the Trial Court was whether the defendant could buy the share of the plaintiff after making valuation of the share at Rs. 1500/- and this issue is directly referable to Section 4 of the Partition Act.

26. The last contention of the learned Counsel for the appellant is that subsequently the defendant died and as subsequent events can be taken into consideration in appeal, the heirs of the defendant cannot claim protection of Section 4 of the Partition Act and in support of this contention he has placed reliance upon the judgment of this Court in Ram Sahai v. Board of Revenue and Ors. 1971 ACJ 1069. The appellant has not led any factual foundation for raising such a plea and, therefore, this plea cannot be accepted.

27. Thus, for all the reasons stated above, there is no merit in this Second Appeal. It is, accordingly, dismissed.


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