1. This is a plaintiffs' second appeal against the reversing judgment of the Additional Subordinate Judge, Balasore dismissing their suit for partition.
The appellants filed the suit (Title SuitNo. 60 of 1975) for partition of propertydescribed in Schedule 'Kha' to the plaint andfor allotment of half share in their favour andthe other half share to defendants 4 and 5.They also prayed for buying out the undivideddwelling house situated on plot Nos. 790 and791 under Section 4 of the Partition Act. Thegenealogy showing the relationship betweenthe parties as given in the plaint is reproducedhereinbelow : --
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Denei Rudra Kurup Budhi
| = Kuturi
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Parsuram Nandi Bhagirathi Ratnakar Michhei
D.1 D.3 P.1 P.2 D.7
Of the four sons of the common ancestor Debei Jena, Kurup and Budh died issueless. Denei and Rudra, the other two sons of Debei became the owners in possession of the undivided homestead with the family dwelling house appertaining to plot No. 791 and the adjoining plot No. 790 forming a part of the said homestead, as well as the paddy lands under plots Nos. 723 and 788. Accordingly, these plots were jointly recorded in the names of Ananta, son of Denei and Rudra in the settlement record of rights. After the death of Rudra his share in the suit property was inherited by his sons, Bhagirathi (plaintiff 1) and Ratnakar (plaintiff 2), widow Kuturi Bewa (defendant 6) and daughter Michhei Dei (defendant 7). The said defendants 6 and 7 having relinquished their interest in the suit properties in favour of the plaintiffs, the latter are entitled to half share therein. After the death of Ananta, about five years prior to the suit, his share in the suit property devolved upon his son Parsuram (defendant 1), widow, Parbati (defendant 2), and daughter Nandi Dei (defendant 3). Due to his objectionable activities Ananta had been forced to leave the village with defendants 1, 2 and 4 for his father-in-law's place. Thus, the joint family homestead and the house standing thereafter remained in possession of the plaintiffs.
2. Taking advantage of the absence of the plaintiffs from the village, Aparti Rout (defendant 4) a stranger to the family illegally trespassed upon the suit homestead and constructed a shed (Chalia) thereon giving out that he had purchased from Ananta his share in the suit homestead. According to the plaintiffs they requested defendants 1 to 4 for amicable partition of the suit property and requested defendant 4 to sell his portion of the suit-homestead on acceptance of due consideration from them. Since their request was not heeded to by the said defendants they filed the suit. Dukhishyam Mohanty (defendant 5) was impleaded in the suit as he claimed to have purchased Ananta's half share in the suit plots 728 and 788.
The defendants 1 to 3 filed a joint written statement which was adopted by defendants 4 also. The gist of their case is that after the death of Kurup and Budhi, the other two brothers, Denei and Rudra became the owners in possession of the suit plots. They equally devided the suit plots 790 and 791 into two halves and possessed the land separately. In that division Denei was allotted northern half of the homestead plots 790 and 791 and Rudra was allotted southern half of the said plots. There was a demarcating green fence running from East to West of the said land. After the death of Denei while his son Ananta was in possession of northern half of the homestead plots, he requested the plaintiffs to purchase the same on payment of due consideration. But the plaintiffs declined the offer. Thereafter he executed the sale deed in favour of the defendant 4 on 22-9-1972 as suggested by the plaintiffs and delivered possession to the purchaser. The defendants contended that the disputed homestead having been divided long since, the plaintiffs are not entitled to relief under Section 4 of the partition Act. Defendants 6 and 7 filed written statement supporting the plaintiffs. Defendant 5 did not contest the suit and was set ex parte.
3. Though the trial court framed several issues the most important and relevant one, issue No. 3, was to the following effect : --
'Has there been a partition of homestead amongst the co-sharers?'
On analysis of the evidence produced before him the trial court recorded his finding on this issue in the following manner :
'The evidence thus, adduced by the defendants, as discussed above, cannot possibly justify the conclusion regarding the alleged division or partition of the suit homestead, and as such, the irresistible conclusion that me suit homestead with the dwelling house of defendant 4 vender Ananta and all the plaintiffs standing thereon, shall be construed as the undivided dwelling house as contemplated under Section 4 of the partition Act, shall prevail.'
Thus, he rejected the defendants' plea that there was a partition of the homestead and the dwelling house standing thereon by metes and bounds. Accordingly, the trial court decreed the suit preliminarily against the defendants. The plaintiffs were held to be entitled to half share in the suit property. Plots Nos. 723 and 788 were to be divided into two equal shares by metes and bounds, one half to be allotted to the plaintiffs and other half to the defendant 5. Defendant No. 4 was directed to execute a registered sale deed in favour of the plaintiffs in respect of the extent of land purchased by him from Ananta Jena under the registered sale deed dt. 22-9-1972 (Ext. A) on receipt of such consideration, as would be determined by the Civil Court Commissioner, failing which, the plaintiffs were to get such sale deed executed by the court in their favour. The entire suit homestead appertaining to plots 790 and 791 was directed to be allotted to the plaintiffs after execution of the sale deed.
4. On appeal by Aparti (defendant 4) the lower appellate court reversed the decision of the trial court and dismissed the suit, holding that since the brothers were in separate possession of the homestead and the house standing therein, it could not be taken as the undivided family property and hence the suit for partition is not maintainable. The appellate court further held that as the suit has neither been filed by the transferees nor all the defendants in the suit filed by one of the co-sharers seek reliefs under Section 4, Partition Act. the plaintiffs are not entitled to the relief under the said provision in the present suit. Accordingly, the lower appellate court dismissed the plaintiffs' suit.
5. The decision of the lower appellate court is challenged as being passed on misconception of the scope and import of Section 4, Partition Act.
6. The object of Section 4, Partition Act is to enable members of a family to buyout stranger transferees from one of the members, who seeks partition of dwelling house. The legislative intention is to avoid inconvenience to members of family in enjoyment of homestead. The provision is only an extension of the privilege given under Section 44 of the T.P. Act. The courts have consistently taken the view that the section has to be liberally-construed, of course, not to an extent as to sacrifice its terms. The provision applies to every dwelling house share of which has been transferred to a person who is not a member of the undivided family to which the house belongs and is sought to be partitioned.
This Court in the case of Subasha Devi v. Ananda Panda (1971) 1 Cut WR, 171, interpreted the expression 'undivided family' to mean a family not divided qua the dwelling house irrespective of their having separated in mess and worship or even separated in respect of other properties. In the said decision it was further held that where the ancestral dwelling house was burnt down at some point of time and different huts were built by different branches on different portions of their homestead, the property still continues to possess the character and comes within the ambit of the expression 'dwelling house'. The destruction of the ancestral house by itself was held not to be sufficient to detract from the homestead still continuing to possess the character of a dwelling house for the purpose of Section 4 of the Act.
The Division Bench of this Court held in the case of Alekha Mantri v. Jagabandhu Mantri, AIR 1971 Orissa 127 that Section 4 of the partition Act applies to a suit for partition by a member of undivided family against stranger transferee and, it is not necessary that the transferee should have filed the suit or being the defendant he should have specifically claimed share in residential house.
This position was reiterated in the case of Tejpal Khandelwal v. Purnima Bai AIR 1976 Orissa 62 where a Division Bench of this court held that the relief under Section 4(1) of the Act is not restricted to suit by stranger transferee and is available to be claimed by plaintiff in a suit for partition by a member of undivided family. The Court further held that applicability of Section 4 is not confined to a Hindu Mitakshara family. It extends to Mahommodan, Christian and other families as well. The family members might have divided their other properties by metes and bounds or there might be severance of joint status amongst them, but the family would still be treated as undivided in respect of the dwelling house if the same has not been divided amongst them by metes and bounds.
A similar view has be taken by a Full Bench of the Gujarat High court in the case of Gulamrasool Sarfuddin Malek v. Dulhanbibi AIR 1980 Guj 110 wherein after discussing various authorities on the point including the case of Alekha Mantri v. Jagabandhu Mantri, AIR 1971 Orissa 127 (Supra) the Court summed up its conclusion as follows : --
'On a true interpretation of Section 4 of the Partition Act, 1893, we hold that the right conferred thereunder to compel a transferee of a share of a member of an undivided family in a dwelling house when such a transferee is not himself a member of the family, to sell his share at a valuation, can be availed of by a member of the undivided family having a share in the said dwelling house irrespective of whether the suit has been instituted by such transferee as a plaintiff. The right can be availed of even if the suit has been instituted by a member of the undivided family as plaintiff and the stranger transferee is arrayed as a defendant, and even if such stranger transferee does not in terms claim the separation of his share in the property.'
The Patna High Court in the case of Harendra Nath Mukharjee v. Shyam Sunder Kuer AIR 1973 Pat 142 interpreted the term 'share' to include both ascertained and unascertained share and held that Section 4 applies also to a case where specific portion of a dwelling house has been transferred to a stranger. The court further held that an application under Section 4 can be made at any stage of the suit and the family continues to be undivided qua dwelling house till possession is delivered to the members of the family in execution of the final decree for partition and as such, the application under Section 4 is maintainable after passing of the final decree and before the possession of the dwelling house in question is delivered to the stranger transferee.
7. In view of the principles laid down in the aforesaid decisions it cannot but be held that the lower appellate court erred in taking the view that since the parties have come with a case that the members of the family have been in possession of separate portions of the dwelling house and since the stranger-purchaser has neither filed the suit nor claimed a share therein though impleaded as a defendant, Section 4, Partition Act has no application to the case. As such the decision of the lower appellate court is unsupportable and has to be vacated.
8. In the result, the second appeal succeeds and the same is allowed. The judgment and decree of the lower appellate court dismissing the plaintiffs' suit is set aside and the decision of the trial court is confirmed. Both parties will bear their respective costs in this appeal.