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Sundari Bewa Vs. Ranka Behara and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 397 of 1964
Judge
Reported inAIR1968Ori134; 34(1968)CLT379
ActsTransfer of Property Act, 1882 - Sections 44 and 52; Partition Act, 1893 - Sections 4(1); Code of Civil Procedure (CPC) , 1908
AppellantSundari Bewa
RespondentRanka Behara and ors.
Appellant AdvocateR.N. Sinha and ;S.N. Sinha, Advs.
Respondent AdvocateR.N. Das and ;B. Dalei, Advs.
DispositionAppeal allowed
Cases ReferredSakhwat Ali v. Ali Hussain and
Excerpt:
.....second contention of the appellant must be negatived. the suit is one for general partition of the dwelling house as well as of the agricultural lands of the family by metes and bounds and has been launched by the plaintiff, a member of the undivided family. this provision is only an extension of the privilege given to such shareholders by section 44, para 2 of the transfer of property act, and is an application of the well-known rule which obtains among mohemedans everywhere and customs also among hindu? section 4 has the manifest object of preserving the status of undivided family qua dwelling house as well as its integrity by preventing outsiders from intruding upon the same and provides that where a share of the dwelling house belonging to an undivided family has been transferred to..........giridhari | | (d4) ranka(pltff) sundari(d-1) (widow) | bharati(d-5) (daughter).3. the suit-property, sought for partition, comprises of paddy-lands and the homestead of the family, 0.25 decimals in extent. the dispute in this appeal between the parties is confined to the homestead plot no. 1355, with an area of 0.20 decimals covered by lot no. 2. schedule kha of the plaint, in respect of which the plaintiff has been allowed relief under section 4 of the partition act. by the courts below.4. the point raised here is whether section 4 of the partition act is applicable to the homestead covered by lot no. 2 schedule kha as stated above. to decide this question a few facts, which are no longer in dispute, have to be stated.5. defendant 1 sold her entire share in the homestead.....
Judgment:

Ray, J.

1. This second appeal has been filed by defendant 1 against the concurrent judgment of the courts below decreeing the plaintiff's suit.

2. Plaintiff, defendants 1, 4 and 5 are members of a joint Hindu family as would appear from the genealogy given below.

CHAIN BEHERA

|

____________________________________________________

| | |

Sampad(dead) Sridhar(dead) Giridhari

| | (D4)

Ranka(pltff) Sundari(D-1)

(Widow)

|

Bharati(D-5)

(Daughter).

3. The suit-property, sought for partition, comprises of paddy-lands and the homestead of the family, 0.25 decimals in extent. The dispute in this appeal between the parties is confined to the homestead plot No. 1355, with an area of 0.20 decimals covered by lot No. 2. schedule Kha of the plaint, in respect of which the plaintiff has been allowed relief under Section 4 of the partition Act. by the Courts below.

4. The point raised here is whether Section 4 of the Partition Act is applicable to the homestead covered by lot No. 2 schedule Kha as stated above. To decide this question a few facts, which are no longer in dispute, have to be stated.

5. Defendant 1 sold her entire share in the homestead and her interest in other properties of the family to defendant 5 by & Kabala dated 16-2-60. A few months later on 20-5-60, defendant 5 in her turn, sold all the lands got from her mother (D-1) to defendants 2 and 3 under Ext. A. It is admitted by the plaintiff that defendant-1 despite her alienation in favour of dei'endant-5 and the second alienation made by defen-dant-5, continued to remain in possession of her share in the homestead. Defendant 1 in her written statement avers that after defendants 2 and 3 purchased her share of the homestead from her daughter (D-5). she continued to live there as a tenant under them by entering into an agreement to that effect with them. The plaintiff filed the present suit for partition and for relief under Section 4 of the Partition Act in respect of the home-stead land on 24-6-60 on which date defendant 1 was in possession of her share, though she ascribed that possession of hers as a tenant under defendants 2 and 3. Thus both parties admit the physical possession of the house by defendant 1, though they differed as to the character of such possession. Defendants 2 and 3 in their written statement filed on 26-10-60 while admitting defendants No. 1's permissive possession under them as tenant aver that they do not claim partition of their share equivalent to defendant No. 1's share which they had acquired from defendant No. 5 and on that basis assert that relief under Section 4 of the partition Act is not available to the plaintiff.

6. During the pendency of the suit, defendant 1 took a reconveyance of the suit homestead from defendants 2 and 3 under Ext. B dated 3-2-61. The decree of the trial court directed that the homestead, lot No. 2 of schedule Kha, shall be divided into three equal parts between plaintiff, defendant 1 and defendant 4 and a commission will value the share of defendant No. 1 and upon acceptance of such valuation, the plaintiff was given the right to purchase the same. He, however, found that the defendants 2 and 3 were the real contestants behind the scene and held that Ext. B is not a genuine document. The lower appellate court affirmed this decree and findings of the trial court. He also confirmed the decision of the trial court even on the assumption that Ext. B is a valid and operative document of sale.

7. The appellant raised the following legal contentions: (i) Section 4 of the Partition Act does not apply to the facts of the case, as the conditions imposed by the said section viz., it is only when a transferee from a cosharer institutes a suit for partition that the contesting co-sharers may apply for getting benefit of this provision of the law, is not fulfilled in this case; and (ii) where a transferring cosharer recovers his share in the homestead property after institution of the partition suit no relief under section 4 of the partition Act can be granted as the basis condition for the application of that law disappears and as such, the court loses its jurisdiction to apply it.

8. On the other hand, it is contended by the plaintiff-respondent that defendant 1's reconveyance under Ext. B having been brought about during the pendency of the suit, it is hit by the doctrine of lis pendens. that is to say. this transfer is subject to result of the suit and cannot thus be allowed to effect the application of section 4 of the Partition Act. These contentions appear to be substantial and require careful examination.

9. The second contention of the appellant and the doctrine of lis pendens invoked by the plaintiff-respondent, are interlinked as the acceptance of the one, will lead to the rejection of the other and vice versa. The plaint in this case was presented on 24-6-60 in which relief under section 4. Partition Act, had been sought as prior to it, interest of defendant No 1 in the dwelling house had been alienated in favour of defendant No. 5 and had ultimately come to vest in defendants 2 and 3 under a second transfer under Ext. A dated 20-5-60 from defendant No. 5. Defendant 1 became an alienee pendente lite on 3-2-61 by re-acquiring her interest in the dwelling house from defendants 2 and 3 under Ext. B. This transaction of sale has been found concurrently by both the courts below to be a sham deed, but in dealing with the present contentions of respective parties, it is assumed to be a bona fide one, as otherwise these contentions will not arise at all. Section 52 of the Transfer of Property Act embodying the doctrine of lis pendens provides that

''during the pendency in any court of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree, which may be made therein.'

From the facts stated above, the suit was manifestly pending within the meaning of Explanation to Section 52 of the Transfer of Property Act when transfer in favour of defendant No. 1 by defendants 2 and 3 took place. Thus, when the jurisdiction of the Court under S, 4 of the Partition Act on the basis of facts obtaining as on the date of the institution of the suit has been invoked, the same cannot be ousted by the transfer of interest of the defendants 2 and 3, who are stranger-purchasers and if the plaintiff is legally entitled to any relief under Section 4 of the Partition Act by ignoring the alienation pendente lite he must have it. The same conclusion is reached by application of another judicially recognised principle, namely that the competency or qualification of the applicant under Section 4, Partition Act, is to be judged with reference to his position at the time of his application. Enunciation of this principle is to be found in AIR 1960 Ker 313 and AIR 1950 Cal 111 and accepting the same as well as applying the doctrine of lis pendens, the second contention of the appellant must be negatived.

10. The only remaining major contention is now to be noticed. It is not in dispute in this appeal that the plaintiff and defendants 1 and 4 constituted an undivided family owning the dwelling house in suit which had not been divided or partitioned amongst themselves. The suit is one for general partition of the dwelling house as well as of the agricultural lands of the family by metes and bounds and has been launched by the plaintiff, a member of the undivided family. Defendants 2 and 3 who are the stranger-purchasers of the share of the defendant No. 1 in the dwelling house, have filed their written statement on 27-10-00 but they have not claimed a partition of their share. Thus, it is argued that when defendants 2 and 3 who are stranger purchasers have not themselves sued for partition of their purchased share as plaintiffs, nor claimed the same relief in the category of defendants, Section 4 of the Partition Act is not attracted and the plaintiff is not entitled to any relief thereunder.

11. There is divergence of judicial opinion with regard to the interpretation of Section 4 of the Partition Act. This difference turns on the meaning to be attributed to the expression 'and such transferee sues for partition' occurring in that section. 'One view, which is based on strict interpretation of this expression is that in order to attract the provisions of Section 4 of the Partition Act, there must be a suit at the instance of the strangers transferees of a share of the dwelling house for partition. This view finds support in AIR 1950 Mad 214 and AIR 1922 Bom 121. The other view is that Section 4 should be liberally construed since it confers a right of pre-emption on the members of the undivided family owning the dwelling house with the object of preventing intrusion of stranger into it. This right cannot be exercised even in cases of partition where the stranger purchaser is not the plaintiff, but is a party defendant. In giving this wider interpretation, the theory that the parties to a partition suit are in position of counter claimants and the defendant to such a suit would also be deemed to be in the category of the plaintiff and other equitable considerations have been imported. This view has been accepted in AIR 1941 Pat 4; AIR 1947 Cal 426; Abu Isa Thakur v. Dinabandho and AIR 1951 Orissa 180. These opposite views came up for consideration before a Full Bench of the Allahabad High Court in the case reported in AIR 1957 All 356 Sakhwat Ali v. Ali Hussain and a synthesis of the two opposite views has been sought to be made in this decision. It has been held there that the right of pre-emption embodied in Section 4(1) of the Partition Act is limited in its scope and it can be claimed only if the transferee either sues for partition himself or makes the same claim when he is impleaded as a party-defendant in such a suit. Section 4 does not entitle a co-sharer to buy out a stranger transferee whenever he likes, unless the transferee is claiming partition of his share either as a plaintiff or as a defendant,

12. Section 44, para 2 of the Transfer of Property Act which came into force in 1882 conferred a privilege on the shareholders of a dwelling house belonging to an undivided family by providing that a transferee of a share of the dwelling house will not be entitled to joint possession or other common or part enjoyment of the house so long as the undivided status of the family continued. The principle of subrogation which is embodied in Section 44 of the Transfer of Property Act is not extended to a dwelling house in all its amplitude. Section 4 of the Partition Act is merely an extension of that privilege. Though it is not legitimate to refer to the statements of objects and reasons as an aid to the construction of Section 4 or for ascertaining the meaning of any particular expression therein, nevertheless as the Supreme Court has ruled reference may be made to the same for the limited purpose of ascertaining the conditions prevailing at the time which actuated the sponsors of the bill to introduce the same.

13. The statement of objects and reasons which is material and relevant for the purpose runs as follows;

'It is proposed in the Bill to Rive the Court the power of compelling a stranger who has acquired by purchase a share in a family dwelling house when he seeks for a 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 shareholders by Section 44, para 2 of the Transfer of Property Act, and is an application of the well-known rule which obtains among Mohemedans everywhere and customs also among Hindu? in some parts of the country.'

These statutory provisions were made having in mind the consideration of corporate property existing as a rule in the East with special reference to joint family property and the social desire to preserve the unity of joint family and to maintain the indivisibility of joint status and the integrity of joint property, and have the desired effect of abridging the right of ownership of property of the transferee which inheres in it rights of indefinite user and power of unrestricted disposition for unlimited duration. So the Partition Act in conferring right of pre-emption on members of an undivided family in certain circumstances derogates to that extent from the ownership of the transferee. In interpreting such laws, equitable considerations cannot be allowed to override their plain meaning when this Act is concerned with dealings of land, devolution of property by partition and imposition of limitation of proprietary right; it has to be strictly interpreted. Any branch of law regarding property, certainly is of paramount importance as people who deal in property do not want to buy law suits or to inherit them. Words are the masters which must be obeyed and logical deductions made from them. The property law should be devoid of moral and equitable concepts as Mathematics. Construed from this approach. Section 4 does not entitle a cosharer to buy out a stranger purchaser unless a suit for partition has been instituted at the instance of such transferee claiming a share for himself. Sections 2 and 3 of the Act provide for the sale of property including the joint family dwelling house in a partition suit in which all the parties are cosharers where due to the nature and number of shareholders and other special circumstances, division of such property cannot reasonably or conveniently be made and the right of some of the share-holders, to purchase at a valuation to be determined by the Court. This is obviously with the object, inter alia, of preserving the integrity of the property. Section 4 has the manifest object of preserving the status of undivided family qua dwelling house as well as its integrity by preventing outsiders from intruding upon the same and provides that where a share of the dwelling house belonging to an undivided family has been transferred to a stranger and he has instituted a suit for carving out the same for being allotted to him against the undivided family, the Court, shall, on an application by any member of the family who is a share holder permit him to buy out the share of the stranger purchaser at a valuation to be made by the Court. The other sections of the Act only deal with matters of procedure and do not call for any detailed notice. Sub-section (1) of Section v which contains the above provision is only material for the purpose of this case and it runs as follows:

'Section 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, 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'.

The key to the solution of the problem is determination of the true meaning and import of the expression 'and such transferee sues for partition' occurring in Sub-section (1) above. To define the ambit and scope of this expression it is appropriate to launch an enquiry to find out in what class of cases the right of pre-emption is not available to a share-holder member of the undivided family and a stranger-purchaser is not debarred from intruding himself into the dwelling house, which once belonged to the undivided family. When the area of exclusion from the operation of this section is clearly designated, the meaning of the disputed expression will become clear. While analysing this aspect of the matter, it is to be remembered that the decisions which press for the liberal view are swayed by the equitable consideration of upholding the object of the enactment preventing intrusion of the stranger into the dwelling-house of the undivided family which has to be achieved at all costs.

14. On a dissection of Section 4 it is manifest that the following conditions must exist before the right of preemption can be claimed thereunder, viz., (i) there must be a dwelling house in existence belonging to an undivided family; (ii) a share thereof should have been transferred to a person who is not a member of such family, (ill) the transferee should sue for partition, that is to say, claim partitioning of his share. In absence of any of those conditions the provisions of the section are not attracted. Thus where the dwelling .house has been divided by the members of the family according to their shares and separate allotments have been amongst themselves, the right to buy out a stranger-purchaser becomes extinguished. As held in AIR 1950 Cal 111 'undivided family' means a family not divided who owns a dwelling house which has not been physically partitioned according to shares The essence of the expression is that the house itself should be undivided amongst the members of the family and the emphasis is on the 'undivided character' of the house and it is this attribute of the house which imparts to the family the character of 'undivided family'. The expression 'share of a dwelling house belonging to an undivided family' in Section 4 which seems to have been adopted from Section 44 of the Transfer of Property Act points to the same conclusion that the dwelling house must not have been divided amongst members of the family by separate allotment. It is only after separating the shares and assigning specific portions to the co-owners that the family becomes divided qua the dwelling house. Thus, when this stage is reached, section 4 ceases to apply. Cases may arise when shares have undergone numerical division resulting in disruption of status, but the members of the family retain common enjoyment and in such cases, it would seem having regard to the object of this piece of legislation indicated above, that the right to buy out a stranger transferee would subsist. This finds support in AIR 1930 Mad 561. Section 44 of the Transfer of Property Act while conferring on a transferee of a share of a dwelling house belonging to an undivided family who is not a member of the family, a right to claim partition and separate possession of his purchased share, disentitles him to joint possession or other common or part of the enjoyment of the house so long as the dwelling-house retains its undivided character. This embargo is lifted as soon as the undivided character of the dwelling-house disappears at the instance of the members of the family suing for general partition. The right to claim partition is limited right which extends to carving out his purchased share and the suit for partition filed, by the stranger-purchaser does not disrupt the joint status of the non-alienating members of the family. Section 4 of the Partition Act has to be construed in the context of Section 44 of the Transfer of Property Act and when so construed the expression 'such transferee sues for partition' obviously refers to the limited right of partition granted under Section 44 of the Transfer of Property Act. Take a case where the transfer of a separated share of the dwelling-house has been made after there has been a division by metes and bounds and there is nothing in Section 4 which prevents a stranger-purchaser from intruding himself upon that divided share which he has purchased. Thus, the object does not include a case where the members have partitioned the dwelling house by metes and bounds by themselves and are in exclusive possession of separate portion of the same. The right of pre-emption conferred by Section 4 is not an absolute one, and cannot be exercised in all circumstances. So where the stranger-purchaser can take possession of his purchased share which has been allotted in a partition suit to the vendor-cosharer without any prohibition in law, there is no logic in refusing the same in a case where a co-sharer sues for general partition in which all other co-sharers also claim allotment of their shares and where the purchaser is also a party. The effect of a general suit for partition of the dwelling house at the instance of a co-owner where other co-owners also claim assignment of specific portions to them towards their share, the undivided family ceases to exist as such qua the dwelling house which is already in process of division by metes and bounds. So even if in such a case the stranger-purchaser claims partition of his share as a defendant in that suit for general partition. Section 4 of the Partition Act is not attracted as the basic condition for its application disappears on institution of such a suit for general partition. Section 4 must therefore, be taken to mean that when the purchaser is enforcing his right under the sale-deed by a suit for partitioning his share only and the family members themselves do not wish to disrupt their undivided status, and are not desirous of dissolving the integrity of the property that the law steps in to prevent the transferee from intruding upon such joint family by giving the right of pre-emption to the other co-sharers. In other words, it means that when there is a possibility of the undivided joint family continuing in the dwelling-house that the law comes to the aid of such family, by compelling the stranger to part with his interest in favour of the joint family or any one member thereof. So the stricter view is more reasonable and is in accord with the plain and literal meaning of the section. But where the members of a family are themselves disrupting the status and integrity of the property, there is no object of the Act which requires to be safeguarded. Thus, having all the varying circumstances in mind, the reasonable interpretation of Section 4 would be that it is only in a case where a stranger-purchaser is suing for partitioning off his share as against the joint family that the need for exercising the right of preemption arises. Even in cases, of partition instituted at the instance of the stranger-purchaser where all the other co-sharers also claim to partition off their shares as well, the right of pre-emption will stand extinguished, because in that case the object, viz. maintenance of joint family status and preservation of integrity of property and exclusion ot strangers from the family and their joint possession is frustrated by themselves on whom the law has conferred the right of pre-emption. In this view of section 4 which I hold to be the correct view, the plaintiff is not entitled to any relief under Section 4 of the Partition Act and the suit must therefore fail.

15. Even accepting the view laid down in AIR 1957 All 356 the suit must fail as the stranger-purchaser, viz., defendants 2 and 3 have not claimed partition of their shares.

16. There is also a short point on which alone the appeal must be allowed. The trial court, as already stated, divided the homestead into three equal shares between the plaintiff, defendant No. 1 and defendant No. 4 and then proceeded to apply Section 4 of the Partition Act. Rightly or wrongly, after allotting l/3rd share to defendant No. 1 who is a member of the family, the trial court lacked jurisdiction to direct sale of that share to the plaintiff. This part of the decree allotting one-third share to defendant No. 1 was not appealed against by the plaintiff and was confirmed by the lower appellate court and is now binding upon the plaintiff. As such. Section 4 of the Partition Act is no longer attracted and direction of the courts below for sale of defendant No. 1's share to the plaintiff is illegal and without jurisdiction and must accordingly be struck down.

17. In the result, therefore, the appealis allowed, the decisions of the courts belowgranting relief under Section 4 of the Partition Act to the plaintiff are set aside. Theappellant, shall have costs of this Court only.


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