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Bibuni Bewa Vs. Padmanav SwaIn and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 11 of 1953
Judge
Reported inAIR1956Ori105
ActsPartition Act, 1893 - Sections 4
AppellantBibuni Bewa
RespondentPadmanav SwaIn and ors.
Appellant AdvocateL.K. Dasgupta and J.M. Mitra
Respondent AdvocateR.N. Sinha and ;S.N. Sengupta, Advs.
DispositionAppeal allowed
Cases ReferredMian Jaffar Shah v. Mt. Bibi Oulla
Excerpt:
.....to frame a comprehensive formula or exhaustive definition to indicate all that is easily understood by the term 'family'.as was well observed by kindersley in -green v. in the case of -wilson v, cochran',(1869)' 31 texas 677 (d), the matter was put clearly as concisely as follows: member of the undivided family, the word 'belonging' in section 4 clearly shows that the house should belong to that undivided family and that she should have a right to the property as a member of an undivided family. l the sale deed in favour of defendant 1 clearly shows that specific properties were conveyed......after she became a widow. from this evidence, it can be inferred that bibuni was living in her father's house aftershe became a widow, and she purchased the property. there is no evidence that she has any property belonging to her husband or she is maintained by her husband's relations.11. on these facts, it has to be seen whether bibuni can be said to be a member of the family. section 4, partition act is as follows:'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 undertakes to buy the share, of such transferee, make a valuation of such share in such manner-as he thinks fit and direct the.....
Judgment:

P.V.B. Rao, J.

1. Defendant 1 Bibuni Bewa widow of one Bhramar Sahu files this appeal against the reversing judgment of the District Judge of Cuttack-Dhenkanal remanding the plaintiff's suit for ordering: a sale according to Sub-section (2) of Section 3, Partition Act and for disposing it of according to law.

2. One Gangai Swain had two sons, Hari land Damai. The plaintiff, Padan, is one of the sons of Damal and his other son Bhagaban had three sons who are defendants 6 to 8. Hari had three sons, Sananda, Jogi and Binanda. Defendant 5 is the daughter of Sananda. Maheswar, defendant 2, is the son of Jogi. Defendant 1 is the widowed daughter of Binanda and defendants 3 and 4 are his sons.

3. The plaintiff's case is that his father Damai separated from his uncle many years ago-and divided their agricultural lands, but kept the homestead Jointly in which he had a four anna-share and defendants 2 to 5 who are -the descendants of Hari had an eight annas share. Udia Bewa wife of Sananda, defendant 2 and Binanda who is the father of defendants 3 and 4 sold, their eight annas share in the disputed property to defendant. 1 on 24-1-1952.

The case of the plaintiff is that defendant 1 being a stranger to the family, her possession causes inconvenience to the plaintiff, that the plaintiff demanded a partition but it was refused and hence he filed a suit for partition with a prayer also for relief under Section 4, Partition ACT in respect of the eight annas share sold to defendant 1.

4. The contention of the defendants 1 to 4 was that there was a partition of the homestead also when there was separation and division in the family and that each co-sharer was holding the allotment given to him in that partition, and consequently, the suit tor partition was not maintainable.

They also contended that the defendant 1 being the sister of defendant 4 is a membsr of the family and is not a stranger and hence the plaintiff is not entitled to any relief under Section 4, Partition Act.

5. In the present appeal, it is not necessary to go into the contentions of the defendants 6 to 8 but substantially they support the case of prior partition.

6. The trial Court dismissed the suit holding that there was a previous partition but observed that he would have given relief under Section 4 Partition Act, had there been no partition before.

7. On appeal, the learned District Judge setaside the decree and the judgment of the trial Court and remanded the suit for ordering a sale according to Sub-section (2) of Section 3, Partition Act.

8. The learned counsel Mr. J.N. Mitra, for the appellants contends that the finding of the lower appellate court that there was no partition of the homestead is not correct, and that the District Judge erred in holding that defendant 1 is not a member of the family, and that the plain, tiff is entitled to purchase the share sold to defendant 1.

9. The main point very strenuously argued by the learned advocate for the appellant is that defendant 1 who is a widowed daughter and is residing in the family for the last 17 years is a member of the family and that the plaintiff is note entitled to relief under the Partition Act.

10. It is in evidence that Bibuni Bewa defendant 1, daughter of Binanda, after she became a widow, was living in the house of her father along with Bhikari, her brotner. D. W. 1 Arjun Naik, gave evidence to the effect that Bibuni is the daughter of Binanda. and that she and her son Hari have been residing in the house of her father for the last 17 years, since after she became a widow, and that Binanda's son Bhikari (D-4) is lame, and is remaining at home living with Bibuni Bewa and her son Hari.

Bibuni Bewa as D. W. 7 stated that she was living at Chowduar for the last 18 years in the house of Binanda and that Binanda, Maheswar & Udia executed a kabala in respect of their home- stead land in her favour, and that she sold her husband's property, and purchased the suit property and that her mother and her lame brother -are living with her.

p. W. 8, Bhikari Swain (D-4) stated that Bibuni was married at Kanheipur and became a widow since 19 or 20 years and was living with him at present. The plaintiff in his cross-examination gave evasive answers and stated that he did not know how many years ago Bhramar Sahuthe husband of defendant 1 died, and that he could not say if she became a widow about 17 years ago. Defendant 1 was residing in the suit house. One cannot accept his statement in view of the fact that being a relation he Is expected to know asto how many years back defendant 1 became awidow, and where she was living after she became a widow. From this evidence, it can be inferred that Bibuni was living in her father's house aftershe became a widow, and she purchased the property. There is no evidence that she has any property belonging to her husband or she is maintained by her husband's relations.

11. On these facts, it has to be seen whether Bibuni can be said to be a member of the family. Section 4, Partition Act is as follows:

'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 undertakes 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 shareholder and may give all necessary and proper directions in that behalf'.

*****

The plaintiff is entitled to a share in the ancestral homestead. Binanda and sananda, sons of Hari are entitled to an eight-anna share in the suit-property, but this share was sold on 24-1-1952 to defendant 1 by Binanda father of defendants 3 and 4, defendant 2 and Udia, wife of Sananda. The plaintiff being a four annas share-holder can undoubtedly claim relief under Section 4, Partition Act, if the transfer In favour of defendant 1 is to a person who is not a member of such family.

In the case of -- 'Khirode Chandra v. Saroda Prasad. 7 Ind Cas 436 (Cal) (A),' it was observed by Mookerjee, J. that: 'The term 'family is not defined in the Partition Act, and we do not think that it would be possible or desirable to frame a comprehensive formula or exhaustive definition to Indicate all that is easily understood by the term 'family'. As was well observed by Kindersley in -- 'Green v. Marsden (1853) 22 LJ Ch 1092 (B)', the word 'family' is, in itself, a word of a most loose and flexible description.

It is, in fact, as Wickens. V. C. said in -- 'Burt Rellayar', (1872) 14 Eq 160 (C) a popular and not a technical expression and its meaning is often controlled by the context. As is pointed out in the Oxford Dictionary although the term 'family' is sometimes used to include 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)' 31 Texas 677 (D), the matter was put clearly as concisely as follows: 'The term family' embraces a collective body of persons living together in one house or within the cartilage. In legal phrase, this is the generic description of a 'family'.

It embraces a household comprised of parents or children or other relatives or domestic servants, in short, every collective body of persons living together within the same cartilage, subsisting in common, and directing their attention to a common object the promotion of their mutual interests and social happiness. This is the most popular acceptation of the word .....

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 persona 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'.

In the above case the owners of the property who were descendants of the founder were all daughters. They had been married, some lived with their husbands in the ancestral dwelling-house while others lived occasionally in the same place, and at other times, in the houses of their respective husbands.

Two of these daughters had transferred their Interests to their husbands who, however lived in the family dwelling-house of their 'father-in-law. On these facts the learned Judge observed:

'When regard is to be had to Hindu social customs and manners, it Is difficult to hold that the term 'family' is not comprehensive enough to include such a body of persons. Indeed, in cases where there are no male children in the family and the daughters alone are entitled to the Inheritance, their husbands very often live as members of the family, and they with their wives may not Inappropriately be treated as the 'family' some members of which have shares in the dwelling-house.'

In the above case certain alienations which were in favour of the husbands were sought to be made the subject-matter of Section 4, Partition Act. For the reasons stated above, that contention was rejected.

In the case of -- 'Mohammad Sulalman Khan v. Mt. Amir Jan', AIR 1941 All 281 (E), it was held by a single Judge of the Allahabad High Court that the phrase 'undivided family' in Section 4 is used in a very wide and general sense and two Mohammedan married daughters could be regarded as members of an undivided family within the meaning of the Act, if the house is undivided and if one of them permanently occupies the house and the other, though she lives mostly with her husband has not the necessary intention to do so permanently. In the case of -- 'Sallm Ullah v. Faqir Ullah', AIR 1948 All 142 (P), it was held by another single Judge of the same High Court that 'the word 'family' must, in the very nature of things. be treated as a word of wide connotation and In Itself a word of most loose and flexible description, ana that there is nothing in the Partition Act to warrant the suggestion that the term 'family' was intended to be used in a very narrow and restricted sense, viz., a body of persons who can trace their descent from a common ancestor. It was also held that the principles underlying Section 4 appear to be to maintain the Integrity of a body of people knit together by a tie of common residence.

It was held that where the plaintiffs in a suit for partition contemplated by Section 4 are themselves the heirs of the original owner of the dwelling-house in question more directly than the defendants, but it is to the defendants that the houses are allotted, the quondam character of the relationship of the plaintiffs cannot be taken into consideration and that the crucial time is the time when partition is sought when the plaintiffs are strangers to the house, and that the defendants constituted an undivided family within the meaning of the Partition Act. they are entitled to the benefits of Section 4 of the Act.'

In the case of -- 'Bhuban Mohan Guha v. Brojendra Chandra', AIR 1941 Gal 311 (G), it was held that in order to defeat the claim under Section 4 of the undivided member, the purchaser however must be shown to be a member of the undivided family at the date of the sale. In the case of --'Laxman v. Mt. Lahana Bai', AIR 1937 Nag 4 (H), it was held by Stone, C. J. of the Nagpur High Court that

'A widow, a member of the Hindu Joint family would be a member herself of the Hindu Joint females, daughters born in the family are members of an 'undivided family' within the meaning of 8, 4, Partition Act, which is an expression that should be given a wider and not a narrow meaning than that given to the term 'Hindu Joint family'.'

11a. Mr. R.N. Sinha. the learned counsel for the respondents, contended that a widowed daughter cannot be regarded as a member of the family and that even if she is regarded as a. member of the undivided family, the word 'belonging' in Section 4 clearly shows that the house should belong to that undivided family and that she should have a right to the property as a member of an undivided family. He, therefore, contends that as a widowed daughter, she cannot be said to be a member of such undivided family to which the property belongs.

12. In Mayne's Hindu Law, 11th Edn.; at p 324, It is observed:

'A Hindu Joint family consists of males and females, daughters born in the family are members of it till their marriage, and women married into the family are equally members of the Joint family. The whole body of such family consisting of males and females constitute a sort of corporation some members of which are coparceners, that is, persons who on partition would be entitled to demand a share of the property, while others are only entitled to maintenance'

At p. 817 it is observed:

'A daughter is entitled to maintenance until her marriage and to have her marriage expenses defrayed;............After marriage her maintenance is a charge upon her husband during his life, and after his death upon her husband's family. If they are unable to support her and the widowed daughter returns to live with her father, there is a moral obligation to maintain his widowed daughter during his lifetime and to make provision out of his pelf-acquired property for her maintenance after his death. On his death, the moral obligation becomes a legal obligation when the estate comes into possession of his heirs.'

In Mulla's Hindu Law, 11th Edn, at p. 634, it is observed as follows:

'A daughter on marriage ceases to be a member of her father's family and becomes a member of her husband's family..........If she is unable to obtain maintenance from her husband or after his death from his family, her father, if he has got separate property of his own, is under moral, though not a legal obligation to maintain her'.

Golap Chandra Sarkar Sastri in his Hindu Law, 6th Edn., at p. 294 under the heading 'Members of a joint family' states:

'The members axe males and females.. ..The female members are the wife or the widowed wife of a male member and his maiden daughter. As a general rule a married daughter is not a member of her father's family; since her marriage she be comes a member of the husband's family. There may, however, be cases in which a married daughter continues to live as a member of the father's family sometimes together with her husband. A widowed daughter also may sometimes come back to her father's family and live as a dependent member thereof.'

13. Mr. Sinha laid stress upon a decision of the Calcutta High Court reported in -- 'Mokhoda. Dassee v. Nundoo Lall Haldar', 28 Cal 278 (I), in which it was held that

'a sonless widowed daughter in Indigent circumstances is not entitled under the Bengal School of Hindu Law to separate maintenance out of her father's estate which has descended to his heirs;'

but in that decision the question whether having regard to the dicta of Peacock, C. J. in the case of -- 'Khetramani Dasi v. Kasinath Das', 2 Beng LR A.C. 15 (PB) (J), there is no legally enforceable right by which a widowed daughter's maintenance can be claimed as a charge on her father's estate in the hands of heirs, when she is unable to obtain maintenance from her husband's family was left open. In the decision in the case of 'Bai Mangal v. Rukmini', 23 Bom 291 (K) it was held that 'the married daughters must seek their maintenance from their husband's family, and if that provision fails, and the widowed daughter returns to live with her father or brother, there is a moral and social obligation, but not a legally enforceable right by which her maintenance can be claimed as a charge on her father's estate in the hands of his heirs.'

In a Full Bench case in 'Ambu Bai v. Soni Bai',AIR 1940 Mad. 804 (L), it was held that the ruleof Hindu Law that there is a moral obligationon the father to support his daughter, marriedor unmarried, applies to a widowed daughter whois penniless, and consequently a Hindu widow labound to be maintained out of her husband'sestate and the husband's widowed daughter whenthe daughter Is without means and her husband'sfamily Is unable to support her.

Therefore, a widowed daughter residing in the father's family and not receiving any maintenance from her husband's family can be regarded as a member of the undivided family of the father for purposes of Section 4, Partition Act.

14. Next Mr. Sinha contended that according to the wording of Section 4, the transferee should not be a member of such family, and the expression 'such family' refers to the preceding expression belonging to an undivided family' and consequently the widowed daughter must be held not to be a member of an undivided family.

In the Concise Oxford Dictionary, the meanings of the word 'belong' are given as 'pertaining to' and 'be proper to'. In my opinion, the word 'belonging' in Section 4 is used in the sense of 'pertaining to' and this meaning receiver confirmation from the latter expression which occurs in the section, viz., 'if any member of the family being a share holder shall undertake to buy etc.'.

Is was observed by the learned Judge In 7 Ind Cas 436 (Cal) (A) :

'Here it may be observed that the phraseology of Section 4 indicates that there may be members of the family who have no share in the dwelling house and that the section makes it essential that the member of the family who undertakes to buy the share of the stranger-transferee, should be a share-holder in the dwelling house which implies that there may be members of the family who are not such share-holders'.

In support of his contention Mr. Sinha relied upon a decision of the Calcutta High Court, --'Boto Krishna v. Akhoy Kumar', AIR 1950 Cal 111 (M), and on the case of -- 'Sheodhar Prasad Singh v. Kishun Prasad Singh', AIR 1941 Pat 4 (N). These decisions do not support Mr. Sinha's contention. In the first case it was held that an undivided family means simply a family not divided qua the dwelling-house, in other words a family which owns a dwelling-house and has not divided it.

The word 'owns' is relied upon by Mr. Sinha, but in my opinion they were dealing with the question that the house should belong to the undivided family who owns a house. They used the expression 'own' in the same sense as 'belong'. In the second case Dhavle, J. held that the worda 'such family' in Section 4 do not mean the family already referred to in the section without the qualification 'undivided'.

15. Finally Mr. Sinha relied upon a decision in the case of -- 'Mian Jaffar Shah v. Mt. Bibi Oulla', AIR 1943 Pesh 79 (O); in which it was held that

'the words 'undivided family' in Section 4 must be taken to mean undivided qua the dwelling house In question and a family which owns a house but has not divided it:'

To attract Section 4, the transfer should be to a person who does not jointly own the house with the transferee. Consequently, where a Mahammadan owning a house Jointly with the brothers transfers a share in the house to his wife, the brothers are entitled to offer to buy the share transferred as the wife must be deemed to be a stranger within Section 4.

This case, no doubt, directly supports the contention of Mr. Sinha, but with respect, I am unable to accept the correctness of the decision with reference to Section 4, Partition Act. If a family consists of say four brothers having a house and one of the brothers transfers his share to his wife who is a member of the family, it cannot be said that after the death of that brother or during his lifetime, another brother who flies a suit for partition, will be entitled to purchase that share.

It is an accepted notion that wives of brothers we members of an undivided family. In the Peshawar case decided by the learned single Judge, the Mahammedan wife in whose favour the transfer was made could not pull on with the husband and it was common ground that she had left the husband.

Any way this decision goes too far and is. in my opinion, contrary to the oblect of Section 5. Partition Act in the Statement of Objects and Reasons for passing the Partition Act, it is stated :

'It is also proposed to give the Court the power of compelling a stranger who has acquired by purchase a share in the family dwelling houses when he seeks for 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, para. 2, Transfer of Property Act and is an application of uniform rule which obtains among Mahammadans everywhere, by custom also among Hindus in some parts of the country'.

A widowed daughter living in father's house, cannot, in my opinion, be regarded as a stranger to the family.

16. The plaintiff is therefore not entitled to purchase the eight annas share sold to defendant 1.

17. The plaintiff's suit is for partition of his one-fourth share and for purchasing the eight annas share sold to defendant 1. The question remains, therefore, whether the plaintiff is entitled to partition his one-fourth share. The plaintiff can file a suit for partition of his one-fourth share.

18. The contention of the defendants was that there was a prior partition, and consequently the suit for partition would not lie. The trial court in a very exhaustive judgment, after discussing the entire oral and documentary evidence in this case, came to the conclusion that there was a prior partition; but the learned District Judge set aside that finding and directed a remand for determination of the other question.

19. Learned counsel for the appellant contended that finding of the learned District Judge is not correct and that he has not given cogent reasons why the finding of the trial Court should be set aside. It is an admitted fact that all the other properties except the suit-homestead were divided long ago, and were so recorded in the current settlement.

The main reasoning of the learned District Judge in holding that there was no partition of the suit-homestead was that the homestead was not shown as divided in the current settlement. But the evidence as disclosed in the Judgment of the learned trial judge really supports the contention of the defendants that there was a prior partition of the homestead.

Ex. L the sale deed in favour of defendant 1 clearly shows that specific properties were conveyed. The parties were paying Choukidari assessment separately. This document coupled with the evidence furnished by other documents as also the oral evidence inclined me to come to the conclusion that there was a prior partition and the plaintiff's suit for partition of the one-fourth share is not maintainable.

20. The appeal is therefore allowed. The decree and judgment of the learned District Judge are set aside, and the suit is dismissed with costs throughout.

Narasimham, J.

21. I agree.


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