1. The plaintiff is the appellant. He got a decree in the trial Court which was varied by the Subordinate Judge in appeal and against this he prefers this second appeal. The suit was to recover a certain share in a house site which originally belonged to one Pacha Saheb. The descendants of Pacha Saheb and the shares which they held are set out in para. 3 (1) of the lower appellate Court's judgment, which runs as follows:
2. The suit property originally belonged to one Pacha Saheb who died 20 years ago.
Pacha Saheb, died 20 years ago.Nabi Bi, died 8 years ago4/8 share.|_____________________|____________________________| | | |Mastan Gannu Deft. 3 Deft 47/24 deft. 1 7/48 7/48After N- 7/24 Plus ______ Plusabi's de 7/24 Deft. 5 7/48 plusath 7/24 1/24 7/48 plus 1/48plus 1/24 1/48 Nabi Bi is Pacha's widow. Mastan and Gannu '(defendant 1) are his sons. Defendants 3 and 4, are his daughters. Defendant 5 is the husband of defendant 8 and defendant 4's vendee. Defendant 2 is defendant 1's vendee.
2. The share of defendant 4 had passed to defendant 5, the husband of defendant 3. Defendant 1 had sold his right to defendant 2. The plaintiff claimed the rights of defendant 3 and of Mastan Saheb, the eldest son. Defendant 3 had sold her share to defendant 10 under Ex. J and defendant 10 had also purchased the rights of the eldest son, Mastan, under Ex. 1 and then resold them under Ex B to Mastan. Defendant 10 also sold back the rights which he had got from defendant 3 to Mastan. Mastan then mortgaged his property to the plaintiff who filed a suit on the mortgage and got a decree and purchased the property in Court auction. The present suit is for a declaration of the plaintiff's right to 23/48ths share in the suit property and for partition and delivery of possession.
3. The properties fell into two sets : (1) that which originally vested 3n defendant 3 which was bought by defendant 10 from her under Ex. J; (2) that which vested in Mastan and was sold to defendant 10 under Ex. 1 and ultimately bought back by Mastan under Ex. B. With regard to defendant 3's share both Courts have found that by the decree in O.S. No, 763 of 1912, on the file of the Principal District Munsif's Court, Guntur, defendant 10 got only a decree for Rs. 50 against defendants 1 to 4 in that suit. It may be noted that the present defendant 3, the vendor to the plaintiff, was not impleaded in that suit, as defendant. Both Courts have disallowed the claim of the plaintiff to the share he bought from defendant 3. With regard to Mastan's share the trial Court decreed partition and refused the application of defendant 3, made under Section 4, Partition Act, after the close of the argument. The appellate Court agreed with the trial Court with regard to defendant 3's share but allowed the claim of defendant 3 to purchase from plaintiff Mastan's portion and remanded the suit for determination as to the value of this one-third share. It is admitted that the trial Court was wrong in thinking that the application of defendant 3 was made too late : vide, Niranka Sashi Roy v. Swarganth Banerjee 1926 Cal 95. The plaintiff has appealed. It is urged for him that the decision that he had only a claim for Rs. 50 against defendant 3 is incorrect and that in fact defendant 3 by the failure of defendants 1 to 4 in that suit to pay up Rs. 50 as ordered and get a sale deed of the property from the plaintiff, has no share in the property that she is not therefore in possession of the property and she cannot claim the benefit of Section 4, Partition Act. Secondly it is urged that, even if she can, the question as to whether this is a dwelling house owned by an undivided family was one of fact which had to be remanded to the trial Court for a finding and that the appellant was prejudiced by being precluded from giving evidence to show that it was not such a property. Appellant also claims that he was entitled to mesne profits because this house had been let out for rent.
4. The first point therefore for consideration is the effect of the judgment and decree in O.S. No. 763 of 1912. Although both Courts alluded to the decree in their judgments only the judgment in that case was filed. It is absolutely necessary for the determination of the suit that the decree should also be filed and I have permitted this to be done. There is no form of decree prescribed where the Court allows the defendant to exercise his power of option under Section 4, Partition Act. The most important case bearing on the subject is Illias Ahmed v. Bulagi Chand 1917 All 2. It is very necessary to see exactly what were the facts in that case and what it decided. Briefly put, the defendants there claimed in their written statement the benefit of 8. 4 and offered to purchase the plaintiff's share. The trial Court valued the share and passed a decree which in form was a simple money decree in favour of the plaintiff for the sum awarded on account of compensation for the house together with costs of the suit. The defendants appealed, but in first appeal took no objection in the appeal against the form of decree. In second appeal the defendants contended that the form of the decree passed was wrong and that there should have been a conditional decree for sale subject to payment by the defendants of the sum arrived at -within a period to be fixed by the Court with an alternative provision that in the event of the defendants failing to pay this sum the plaintiff shall be entitled to proceed with the partition of his share by metes and bounds. The learned Judges held that this was in substance a claim that the defendant should be allowed an opportunity of resiling from the offer made by them. They proceed to consider the provisions of Section 4, Partition Act, and say:
It may be quite true, as has been argued before jus on behalf of the present appellants, that this jsection was enacted for the benefit of the defendants in a partition suit, but it is equally true that it involves a statutory interference with the legal rights of the plaintiff and it is not unreasonable that it should be strictly construed so as to limit that interference.
5. They say that the words 'shall undertake to buy the share' mean something more than a mere offer of purchase and that they mean an unconditional offer from which the party making it should not be permitted to resile and on such undertaking being given the Court is bound to direct sale. They then state that the Court was bound to pass a decree which would have the effect of transferring to the defendants the house in suit and find it difficult to hold that the decree actually passed had this effect. They feel a doubt as to what the precise form of the decree which the legislature intended to be passed in such a case should be and they then say:
It is conceivable that the intention of the legislature was that the Court should pass a decree compelling the plaintiff in a case like the present to execute a deed of sale in favour of the defendants in the same manner as is done in the case of a suit for specific performance of a contract of sale. After the execution of such a document by the plaintiff or by the Court in his behalf in the event of his failing to do so the defendants would become liable to the plaintiffs for the unpaid purchase money and the plaintiff would obviously be entitled to maintain a suit for the recovery of the same if he were not paid. As the point has not been raised in the memorandum of appeal before us, we do not desire to pronounce a final opinion as to the form of decree which should be passed, in a case to which Section 4 of Act i of 1893 is applicable. It is perhaps doubtful whether the legislature intended a procedure so cumbrous as that above suggested, but at any rate the decree passed should be one which has the effect in law of transferring the ownership of the plaintiff's share to the defendants who have undertaken to purchase it, that is to say, which gives the defendants a good document of title as against the plaintiffs. We feel it is incumbent upon us to modify the decree in the present case, at any rate to such an extent as feems absolutely necessary in ordor to produce that effect. We direct that the decree be amended so as to read in this form : that the plaintiff is entitled to recover from the defendants Rs. 1,020-7-8 together with such costs as may be awarded to him in all three Courts and that the Court shall put the defendants in possession of the undivided 6/8 share of the house in dispute at present belonging to the plaintiff and declare them to be the owners of the same.
6. For the appellant the argument has been raised that whatever the view of the Allahabad High Court may be, under the Civil Rules of Practice framed by this Court, Vol. 1, p. 213, sales under the Partition Act are to follow the rules for sales laid down on p. 169 and that under those rules steps towards sales have in all cases to be taken by the person who wishes the sale brought about. It will be seen however that all the rules for sales deal with Court auction sales and none of them seem in terms applicable to the execution of a sale deed by the plaintiff in favour of the defendant under Section 4, Partition Act. I am doubtful whether the Civil Rules of Practice throw any light on the matter and the learned Advocate for the appellant admitted they were only useful by way of analogy. The respondents rely on the Allahabad case as against the argument for the appellant that the judgment and decree are similar to those passed in a suit for specific performance. But it is to be noted that their Lordships left that part of the decree by which the plaintiff was entitled to recover compensation money and costs as it was and therefore plaintiff was not driven to a fresh suit. They have refrained from laying down what is the correct form of decree in such a case. With respect, it appears to me that in a case like the present it would be very hard to force the plaintiff to give up property which he has purchased and in return he should get nothing but the right to bring a fresh suit against the defendant who has taken advantage of Section 4. It appears to me that this would be hardly consistent with the principle laid down by the learned Judges that the section should be construed so as to limit the interference with the legal rights of the plaintiff. However in the present case the decree, whether right or wrong, was taken up on first and second appeal and has become final. It is therefore immaterial whether its form is correct or not and all that has to be considered is what was 'the effect of the decree which was passed in O.S. No. 763. After giving my most careful consideration to the judgment and the decree I am unable to agree with the view of the trial and lower appellate Courts. It appears on a fair reading of the judgment and decree that the execution of the sale deed by the plaintiff in that suit in favour of defendants 1 to 4 in that suit was conditional upon defendants 1 to 4 depositing compensation money of Rs. 50, and as they did not do so the plaintiff in that suit continued to be the owner of the property. The last paragraph of the judgment runs as follows:
The value of the 7/48th share is assessed at Rs. 50, having reference to the value of the property given in En. A as Rs. 60 for one sixth share plus damages assigned; and defendants 1 to 4 may deposit Rs. 50 within the end of June in Court and plaintiff is directed to execute a sale deed at defendants' cost and plaintiff, will get Rs. 50 in lieu of the property.
7. When we come to the decree the material portion runs as follows:
(1) That the plaintiff do sell his 7/48th share in the property described in the schedule hereunder to defendants 1 to ,4 who are cosharers in the said property for Rs. 60 as it is practically impossible to divide and give separate possession of plaintiff's 7/48th share in the said property; (2) that defendants 1 to 4 do deposit in Court the said sum of Rs. 50 on or before Both June 1915; (3) that on payment by defendant 1 to 4 of the said Rs, 50 into Court the plaintiff do execute a sale deed in favour of defendants 1 to 4 at their cost for plaintiff's 7148th share in the property; (4) that the plaintiff do recover from the Court the said sum of Rs. 50 in lieu of his share in the property.
8. The respondents rely on the second clause that defendants 1 to 4 do deposit in Court the said sum of Rs. 50 on or before 30th June 1915. The appellant relies on Clause 3 and 4 that on payment by defendants 1 to 4 in that suit of Rs. 50 the plaintiff do execute a sale deed in favour of defendants and plaintiff do recover the said sum of Rs. 50 from the Court. This last clause appears to me conclusive in favour of the appellant's contention that the execution of the sale deed is conditional on the payment of the money and that it is not a mere money decree or an order that the plaintiff is entitled to recover Rs. 50 from the defendants 1 to 4 by 'means of a suit, because it is stated that he is to recover it from the Court. Tha plaintiff obviously could not bring a suit against the Court for the money nor could he even by way of execution execute the decree against the Court directly. Beading paras. 3 and 4 of the decree with the last paragraph of the judgment where the payment by the defendant is distinctly made optional, it seems to me that this decree, whether right or wrong in form, postpones execution of the sale deed to the payment of Ks. 50 and makes it conditional upon it. If that view is correct, defendant 3 has no interest in the property entitling her to claim the benefit of 8. 4, Partition Act, and consequently the plaintiff is entitled to the share which he has purchased from her also and Section 4, Partition Act, cannot be invoked by defendant as she is no longer a sharer in the property. I will however for the sake of completeness, and because for another reason to be stated later, the matter will have to be remanded for a finding as to whether Section 4, Partition Act, applies to this property, consider whether the lower appellate Court should have remanded the suit for a finding as to whether Section 4 was applicable. For one reason alone it is obvious that the plaintiff was prejudiced by not being allowed to adduce evidence on the matter.
9. This point is the question whether all the land attached to the house is required for its use. This is a pure question of fact : vide 1928 Cal 539 (3), and it is one of the appellant's contentions that the land surrounding the house is more than that which is required for its use. There are also several other points which are mixed questions of fact and law, as regards which I consider the plaintiff was prejudiced in not being allowed to adduce evidence. The house was admittedly let out for rent. As I intend to send back the matter of the applicability of Section 4, Partition Act, for a finding (though my view is that defendant 3 cannot take advantage of the section having lost her share of ownership in the property). I do not wish, to say anything on the legal aspect which might prejudice a finding on the question as to whether this is the dwelling house of an undivided family, but I may say that I have been shown no case where a house belonging to an undivided family which is entirely let out for rent has been held to be a dwelling house within the meaning of Section 4. No doubt certain expressions in Khirode Chandra Ghose v. Saroda Prosad (1910) 7 IC 436, at the bottom of p. 440 and in Vaman v. Vasudev (1899) 23 Bom 73, which lay down that it is possession and not occupation that gives the right under Section 4 have been quoted to support the position that it is immaterial that the house has been let out for rent. In the first of these oases the house was occupied by the family and the question arose as to whether members of the undivided family could claim the benefit of the section if they did not habitually reside there. It was in that connection that the dictum was pronounced. In Vaman v. Vasudev (1899) 23 Bom 73, a certain member of the family, who continued to occupy the house notwithstanding changes in ownership claimed the benefit of the section. It was held that he could not do so as it was ownership and not occupation which gave the right. I do not wish however to give any final decision on the matter for the reasons stated above, but neither of these cases is direct authority for the proposition that for purposes of Section 4 a house is still a dwelling house of an undivided family though rented out to other people.
10. There are two other questions which are mixed questions of fact and law as regards the alienation by defendant 4 to her brother in law, defendant 5, and an alienation to a complete stranger, a Hindu, defendant 2. On these points the learned appellate Judge merely says:
It was the contention of defendant & that the sale of her share to defendant 5 was only nominal.
11. He does not say that he finds it as a fact to have been nominal and there is no evidence about it. It was argued that under the decision in Khirode Chandra Ghose v. Saroda Prosad (1910) 7 IC 436, a son in-law may be a member of a family if he comes and lives in one house under one head and one management. Whether that would cover the case of a son-in-law who does not reside in the house for which the privilege under Section 4 is claimed, such house being let out entirely for rent to others, is a matter on which no authority has been quoted and which remains open. Defendant 2 is admittedly a stranger being a Hindu and on this point the learned Subordinate' Judge says 'the sale of defendant 1's share to defendant 2 was found to be-invalid.' It is admitted that there is-no evidence or finding about this in the present suit. I now come to the point which necessitates remanding the appeal for a finding as to whether this is a dwelling house belonging to an undivided family. It arises from the claim for mesne profits and this depends on whether Section 44, T.P. Act, is applicable which again depends on whether the house can be considered a dwelling house belonging to an undivided family. The suit will therefore have to go back to the lower appellate Court for a finding as to whether this is a dwelling house belonging to an undivided family within the meaning of Section 44, T.P. Act.
12. A memorandum of objections has been filed by respondent 11. He is a purchaser of part of the site from the plaintiff and his case is identical with that of the plaintiff excepting in the matter of mesne profits which he does not claim. As I have held that Section 4, Partition Act, cannot be availed of by defendant 3, it follows that the memorandum of objections of defendant 11 must be allowed without costs and he must be decreed partition and possession of the site purchased by him. Both sides will be a liberty to adduce evidence. Time for finding three months after the re-opening of the lower appellate Court. Objections 10 days.
(In compliance with the order contained in the above judgment herein, the Subordinate Judge of Guntur submitted the following):
Finding. - The issue is:
Whether the suit house is a dwelling house belonging to an undivided family within the meaning of Section 44, T.P. Act.
13. I find that the suit property consists of two dwelling houses belonging to an undivided family within the meaning of Section 44, T.P. Act.
(This Second Appeal coming on for final hearing after the return of the abovesaid finding of the lower Court, the Court delivered the following):
14. Judgment - The lower Court has now submitted its findings on the issue referred to it namely
Whether the suit house is a dwelling house belonging to an undivided family within the meaning of Section 44, T.P. Act?
15. Its finding is that it is such a house. As regards the facts to which the law is to be applied it finds that the only possession which defendants 3 and 5 had after the death of Nabi Bi in 1917 of the suit house, was through tenants, that defendant 5 is going behind his feadings in adducing evidence about personal possession, that defendant 7 has failed to prove his plea that he was in possession of the suit house as care-taker and water carrier, and it finds that as a matter of fact defendant 1 with defendants 3 - 5 lived in the police lines till 20th February 1914. The learned sub-Judge further finds that the shed was really a second dwelling house which was let out from time to time by defendant 5 who never occupied it.
16. As regards these findings of fact there are really no objections urged before me though the learned Advocate for the appellant argues that it is a new case that there were two houses. In view however of the legal view which the lower Court has taken and with which for reasons to be given presently I find myself in agreement, it does not really matter whether there were two houses in the compound or only one. I am not prepared to say that in either case the compound was not required for the enjoyment of the property. The more important question is the legal one whether the facts being so,, the house and the shed (or the two houses as the case may be) fall under the definition of 'dwelling house belonging to an undivided family' mentioned in Section 44, Clause 2, T.P. Act.
17. The only case quoted to the lower Court not mentioned before me already is Pakija Bi v. Adher Chandra Nath 1929 Cal 231, where it was held that the requirements of Section 44 are satisfied if it is shown that the house is an undivided house and that occasionally the members of the family reside in the house. It is unnecessary to constitute an undivided family for the purpose of Section 44 that the members of the family should have constantly resided in the dwelling house, nor is it necessary that they should be joint in mess. This does not cover the point in question here which is whether the section will apply or not when the whole house is let out for rent and the family does not reside in it at all. One would have thought such cases must frequently have arisen yet no authority on the point is apparently forthcoming. I will now quote what the learned Sub-Judge says as to the law:
Mr. Nagabhushanam for plaintiff asks where is the undivided family when' every sharer had alienated his share. There is no evidence that all the sharers sold away their shares and if he-means that alienation would effect a division, I am unable to agree.
18. On both these matters, I think the learned Sub-Judge is perfectly right. Then he proceeds to discuss the applicability of Section 44, in other respects, and,, after saying that the only new case quoted is Pakija Bi v. Adher Chandra Nath 1929 Cal 231 remarks:
I have stated that the leases were at no time for a fixed term. The lessor did not deprive himself of the power of entering into possession-at the end of a month of the tenancy.
19. On this point I am doubtful if it makes any difference for what length of period the leases were. Of course, if the undivided members of the family bad been occasionally occupying the house that would settle the matter under the decision, Pakija Bi v. Adher Chandra Nath 1929 Cal 231, quoted. I do not see how a Court could construe the section on the basis merely of the terms of the leases. Mr. Raghava Raw, for the respondents frankly conceded that in his view of the section if an undivided family owned quite a lot of dwelling house property, which they rented out, Section 44 would apply to the purchaser of a share of any one of such houses, and that is I think' the only logical standpoint if it be held that Section 44 applies. Then the learned Sub-Judge proceeds:
A house would be a dwelling house so long as somebody lives in it, whether it is the owner or his tenant, and it seems to van that to insist that some member of the undivided family should be dwelling in the house would be to put far too narrow a construction on the terms of the section for which no justification has been pointed out to me.
20. It is argued for the appellant that the whole purpose of this proviso is to prevent the purchaser of a share of an undivided member in the family dwelling house intruding himself on the privacy of the family. Gour's commentary on the section is quoted where he says:
The proviso did not find a place in the Bill of 1879, but was subsequently added by the Select Committee with a view to prevent a stranger from claiming joint possession of a family dwelling house. In cases determined before the Act it was held that according to the law as administered in Bengal, the purchaser at a Court sale of the rights of one member, may be entitled to be put into physical possession even of a part of the family house, which could only be obviated by purchase of the right by the other members at the sale, or by a suit for partition. The inconvenience and inequity of permitting a stranger to intrude himself upon the privacy of a joint Hindu or Mahomedan family residence was manifest and the proviso was accordingly necessary.
21. But it is a cardinal principle of interpretation of statutes that we must first look to the words of the statute itself and if these words are plain it is not permissible to consider what was the intention of the statute, or its previous history of the law. Now the first point to be noted is that the section does not speak of 'a family dwelling house' 'though from the commentary quoted one (might almost suppose that it did. Nor does it say that the 'dwelling house' [must be occupied either permanently or (even occasionally by the undivided family. The word dwelling house' has a perfectly well-known and plain meaning and does not necessarily connote a dwelling house occupied by an undivided family, who also own it. The legislature might quite easily have used the term 'family dwelling house' if it had wished to do so but it contented itself with the simple word 'dwelling 'house.' So also the words belonging to an undivided family' are quite unqualified and do not per se at all import that the house must be occupied per. manontly, or even temporarily, by the undivided family.
22. The only two requisites laid down in the proviso are (1) that the house must be a 'dwelling house' (2) that it must belong to an undivided family. Both these requisites are satisfied in this case. If the legislature has made the proviso wider than the remedy it intended to supply that is a matter for, amending the proviso. The Court must take the words of the proviso in their plain sense as it finds them and cannot limit their meaning on account of any supposed intention of the legislature in making the proviso. I must therefore agree with the lower Court that; this house and shed or two houses; (whichever the case may be) are a; dwelling house' or 'dwelling houses belonging to an undivided family' within the meaning of this section. Appellant is not therefore entitled to amesne profits.
23. After the finding was received it was sought to argue that he was entitled to an account and to get his share of the rents. In the first place this was never advanced in the appeal memo nor in arguing the appeal. The words I used in sending down for a finding show clearly that I found the claim to mesne profits to depend on the suit property not falling under the proviso. In any case there is I consider no substance in the contention. The cases quoted in Watson and Co. v. Remchand Dutt (1891) 18 Cal 10 and Yerukola v. Yerukola 1922 Mad 150, were cases of tenants in common. Appellant is only a transferee from a joint tenant and admittedly the question of ouster does not come in as there is no allegation of any such thing. The result is that the appeal of the plaintiff is allowed with reference to his prayer for partition and recovery of 23/48ths of the suit property, but his claim to mesne profits is disallowed. There will be a preliminary decree for partition of the property. Appellant will recover costs in this and the lower Court in so far as he has succeeded and pay them in so far as he has failed.