1. If the facts of this case are properly appreciated the principle of law that should be applied will be easy to determine.
2. Plaintiffs 1 to 4 are the heirs of one Shyam Sundar Baral who had two brothers Samuel and Daniel. In the year 1936 they filed a suit for partition of their share in the suit property, which consists of a dwelling house standing on plot No, 280, in Title Suit No. 332/89/57 of 1936 in the Court of the First Munsif, Cuttack, and obtained a decree for partition on 3-10-1936. In accordance with the decree the suit house was divided into two portions X and Y, X representing one-third share of the plaintiffs' father, and Y representing the share allotted to Samuel and Daniel Jointly.
The plan attached to the plaint shows that eastern portion marked X fell to the share of the plaintiffs and the western portion Y, to Samuel and Daniel. Samuel died in the year 1944, leaving a widow, Kadambini, surviving him. Kadambini purported to convey by a sale deed. Ex- 1 dated 10-1-47, the entire interest of Samuel in the suit dwelling house to plaintiffs 1 and 2 -- which obviously she was not entitled to do.
The parties being Christians are governed by the provisions of Section 106, Indian Succession Act and Kadambini would be entitled only to a half share in the interest of Samuel, the other half going to Samuel's brother and his nephews. Ext. 1 is therefore operative only to the extent of conveying Kadambini's half share in the interest of Samuel in the suit house, the plaintiffs and Daniel being entitled to the other half. Thus, the plaintiffs would be entitled to 2 annas interest by succession and 4 annas interest of Kadambini by reason of the purchase under Ex. 1.
The appellant Sushila is the widow of Daniel who died leaving a deed of gift in her favour. The plaintiffs have raised the present suit for partition of the entire 8 annas interest which they claim to have purchased from Kadambini under Ex. 1 and for separate possession thereof. The appellant Sushila is defendant 1 and Kadambini is defendant 2.
3. Several points were raised by the defendants in the course of the trial, but it is unnecessary to trace the chequered course that this litigation has taken. The only point raised in this appeal which requires strious consideration is whether defendant 1 the appellant, who is willing to purchase the 4 annas interest of Kadambini from the plaintiffs is entitled to any relief under Section 4, Partition Act.
The Courts below have negatived the appellant's claim on the ground that on Samuel's death the plaintiffs who became cosharers in the suit house were still members of the family and were not strangers in favour of whom partition could not be granted. It is against this finding that defendant 1 has come up in appeal.
4. Sub-section (1) of Section 4, Partition Act says:
'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 member of the family 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, etc'.
What this Section contemplates is (1) that the suit for partition must relate to a dwelling house (2) that such house must have belonged to an undivided family (3) that it must have been transferred to a person who is not a member of such family. The question is whether the property in question remained as the dwelling house of an undivided family and whether the plaintiffs are not members or such family. It should be noticed that plaintiffs 1 and 2 are the purchasers under the sale Ex. 1 and plaintiffs 3 and 4 are the other children of Shyam Sundar Baral.
5. Mr. Das Gupta appearing for the appellant contends that the plaintiffs can by no means be regarded as members of an undivided family as they had already got their shares partitioned in an earlier suit, and as such ceased to be members of the family of Daniel and Samuel who continued to live undivided in the dwelling house.
The rival contention advanced by Mr. Misra for the respondents is that irrespective of the earlier partition suit, the plaintiffs became members of the family in respect of the suit dwelling house the moment Samuel died and they became entitled by succession to a share in the property. The question is which of these two contentions must prevail.
6. It was decided in the well-known Full Bench case of the Allahabad High Court in -- 'Sultan Begum v. Debi Prasad', 30 All 324 (FB) (A), that the object underlying Section 4, Partition Act 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. It was also held that the words 'undivided family' used in that Section 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'.
This Full Bench decision has been followed subsequently in all the reported decisions that have been brought to our notice, and we are of opinion, if I may say so with respect, that that decision correctly brings out the principle underlying the legislative policy in enacting Section 4, Partition Act. What is contemplated is that the dwelling house should have been left undivided and must have belonged to the Jurnily.
A transfer of the interest of any member of such family to a stranger, that is, one who is not a member of that group of persons constituting the family to whom the dwelling house belongs is not permitted to break up the family by forcing his way into it by a suit tor partition.
7. Mr. Das Gupta referred us to the cases reported in -- 'Nil Kamal v. Kamakshya Charan', AIR 1928 Cal 539 (B); -- 'Babulal Tiwari v. Hulla Mallah', AIR 1938 Pat 13 (C), and--'Bhuban Mohan Cuha v, Brojendra Chandra', AIR 1941 Cal 311 (D), where the above principle has been recognised. Mr. Misra, however, urged that a house ceases to be a 'dwelling house' within the meaning of Section 4 it a portion of it has been let out to tenants. He drew our attention to the case of -- 'Chatterji v. Maung Mye', AIR 1940 Rang 53 (E) which is a decision of a single Judge.
It appears from the Report that the learned Judge was of opinion that the expression 'dwelling house belonging to an undivided family' occurring -in Section 4 refers to a 'family dwelling house'; and does not mean any house or building for human dwelling belonging to an undivided family, I am, unable to understand why the expression 'family dwelling house' should be read into the Act when the Section itself says, in clear terms, that it applies to 'a dwelling house belonging to an undivided family'.
No reasons are given by the learned Judge for entertaining this opinion, nor can I discover any. On the other hand the case of -- 'Khirode Chandra Ghoshal v. Saroda Prosad Mitra', 12 Cal LJ 525 (F) on which the learned Judge has relied, goes against the interpretation put by him. In '12 Cal LJ 525 (F)' it was held that the word 'family' is incapable of an exhaustive definition and that it should be read in a liberal sense.
Mr. Misra laid considerable stress on the observation made in the case, particularly on the quotations from the Oxford Dictionary, where 'family' is defined as including those descended or claiming descent from a common ancestor; it has very often a much wider import; it is often used to indicate a body of persons formed by those who are merely connected by blood or affinity; it is sometimes used to include even a body of persons Who live in one house or under one head.
In the case of -- 'Wilson v. Cochran', (1869) 98 Am Dec 553 at p. 555 (G), it was observed that
'family embraces a collective body of persons, living together in one house or within the curltilege.
Mukherji, J., following this dictum said that the word 'family' as used in the Partition Act has to be given a liberal, comprehensive meaning and it includes a group of persons related in blood who live in one house, or under one head or management. It should be noticed that besides including a group of persons related in blood, they must live in one house or under one head or management in order to constitute a family,
In that particular case the daughters' husbands lived in the dwelling house of their father-in-law and were held to constitute one family within the meaning of Section 4. While citing this passage from the judgment of Mookerji, J,,' in support of his view, the learned Judge of the Rangoon High Court seems, to have been under the impression that what the Section contemplates is a family dwelling house and not a dwelling house belonging to an undivided family.
This decision of the Rangoon High Court also appears to have been allowed in -- 'Abinash Chandra v. Kamala Devi', AIR 1933 Pat 344 (H). There also, there is very little discussion in support of the view taken by the learned Judge of the Patna High Court, following the dictum laid down in the Rangoon case. Mr. Misra then referred to a single Judge decision of the Calcutta High Court -- 'AIR 1928 Cal 539 (B)'.
Undoubtedly, in that case there is an observation made by Mukerji, J. which apparently supports the respondents' contention. His Lordship observed that the word 'family' as used in Section 4, Partition Act ought to he given a liberal and comprehensive meaning and that it includes a group of persons related in blood who live in one house under one head or, management, that it is not restricted to a body of persons who can trace their descent from a common ancestor; that it is not necessary for the members to constitute an undivided family, that they should constantly reside in the dwelling house; nor is it necessary that they should be joint in mess; that it is sufficient if the members of the family are undivided qua the dwelling house which they own; and finally that it is the ownership of the dwelling house and not its actual occupation which brings the operation of the Section into play.
This last statement, if I may say so with respect, correctly states the true position of law. Mr. Misra however has attempted to tear this last observation of the learned Judge from the context and build up an argument on the rest. What the learned Judge has laid down, in essence, is that in giving a liberal interpretation to the word 'family' it is not necessary to find that the members should be constantly residing in it or that they should constitute an undivided family when the dwelling house is left undivided.
The Section in clear terms refers to the ownership of the dwelling house by an undivided family; but whether the members of the family occupy it or not, it must he a dwelling house. This decision, therefore, far from supporting the contention that if a house is tenanted it ceases to be a dwelling house, is directly against it.
It will be seen from that report that the plaintiffs who once belonged to the family of the defendants had taken their share by partition of the ancestral properties, and that they had no right to live in the house, apart from their right under the purchase. This circumstance, according to Mukerji, J. clearly made them strangers to the family.
The next case relied on by the respondents is a decision of the Madras High Court, -- 'Sivaramayya v. Venkatasubbamma', AIR 1930 Mad 561 (I), where Curgenyen, J. followed the Full Bench decision of the Allahabad High Court in '30 All 324 (FB) (A)' is well as '12 Cal LJ 525 (F)'. The only principle followed in that case is that the family should have remained undivided qua the dwelling house at the lime of the transfer.
I would accordingly overrule the contention that the house ceased to be a dwelling house by reason of portion of it having been let out to tenants.
8. The second contention raised by Mr. Misra is that the status of the family at the time of the suit namely, whether it was divided or undivided at the date of the suit, should be looked into, in order to ascertain whether the plaintiffs would be entitled to partition. This contention proceeds on the assumption that the plaintiffs became members of the family of Samuel and Daniel by reason of their inheritance to an undivided share of Samuel's interest
The Section, however, does not speak of any co-ownership or co-tenancy. Whether the transferee is a co-owner or not, what the Section insists upon, is that he should be a member of the family to whom the dwelling house belongs. We have heard Mr. Misra at great length on this point and we are not satisfied that a person by reason of inheritance alone becomes ipso facto a member of the family to whose property he succeeds. If that were so, a daughter's son of a Hindu family would automatically become a member of his family on his getting a share of his property.
I do not see how such a result can follow. The family may remain just the same irrespective of where the property, of an individual member goes. As has been pointed out earlier the persons constituting the family must live together under one head or management and it is in that sense that the expression has been used in Section 4.
9. There is one other point raised by Mr. Misra and that is that Samuel and Daniel were themselves divided and that therefore Section 4 could not have any application. This contention, however, was urged for the first time in this Court and Mr. Misra wanted permission to read the evidence in support of this contention.
A reference to the plaint, however, would show that the plaintiff came to Court on the allegation that the suit house was in the joint possession of the two brothers and that they had lived in that house. Having regard to this averment and particularly as there was no traverse of this allegation and no issue was raised on the question, such a plea cannot be permitted to be raised for the first time in second appeal.
10. We are therefore satisfied that the plaintiffs were not members of an undivided family at the time the sale took place in 1947, in spite of their being entitled to 2 annas share by succession, and that defendant 1 is entitled to resist the partition of the dwelling house which was the dwelling house of the family consisting of her husband and his brother. The Courts below were wrong in refusing relief under Section 4, Partition Act.
We would accordingly direct the learned Munsif to value the four annas share sold by Kadambini under Ex. 1 to plaintiffs 1 and 2, and direct the sale of such share to the appellant. The plaintiffs will of course be entitled to a partition of the 2 annas interest of Samuel which they got by succession. The appeal is allowed. Defendant shall be entitled to half the costs throughout.
P.V.B. Rao, J.
11. I agree.