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Satyendu Kundu Vs. Amar Nath Ghosh and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 1113 of 1962
Judge
Reported inAIR1964Cal52
ActsPartition Act, 1893 - Section 4 and 4(1)
AppellantSatyendu Kundu
RespondentAmar Nath Ghosh and ors.
Appellant AdvocateS.C. Jana and ;Arun Kumar Jana, Advs.
Respondent AdvocateP.N. Mitra, ;A. Sen and ;K. Banerjee, Advs.
DispositionAppeal dismissed
Cases ReferredJ.C. Chatterjee v. Maung Mye
Excerpt:
- sinha, j.1. this is an appeal against an order of the learned additional district judge, howrah, affirming an order of the learned additional subordinate judge, howrah, made under section 4 of the partition act iv of 1893. (hereinafter referred to as the 'said act'). the facts in this case are briefly as follows: one debendra nath ghosh became the owner of house and premises no. 154, panchanantola road, at present known as premises no. 74, deshpran sashmal road, howrah. the house is two-storeyed, situated on land of the area of about 1 cottah 14 chitlahs. there are two big rooms and one small room on the first floor and a corresponding number of rooms with one verandah on the ground floor. it is necessary here to set out the genealogical table of debendra nath ghosh and his descendents......
Judgment:

Sinha, J.

1. This is an appeal against an order of the learned additional District Judge, Howrah, affirming an order of the learned Additional Subordinate Judge, Howrah, made under Section 4 of the Partition Act IV of 1893. (hereinafter referred to as the 'Said Act'). The facts in this case are briefly as follows: One Debendra Nath Ghosh became the owner of house and premises No. 154, Panchanantola Road, at present known as premises No. 74, Deshpran Sashmal Road, Howrah. The house is two-storeyed, situated on land of the area of about 1 cottah 14 chitlahs. There are two big rooms and one small room on the first floor and a corresponding number of rooms with one verandah on the ground floor. It is necessary here to set out the genealogical table of Debendra Nath Ghosh and his descendents.

DEBENDRA NATH GHOSH = UMASHASHI

_______________________________________________|_(d/-I8-2-57)__________________________________________

Jnanandra Swarna Sen Kamala Bimala Roy Reba Paral Amain Mitra

| (pred) Bhanja Mitra D. 2 (pred)

Amar Ghosh | |

P. 1. | |

_____________|________________ _______|________

| | | | |

Tara Shyama Anima Amitava Tapati

Sundari P. 4 p. 5 P. 2 p. 3

____________________

| | |

Annapurna Aparna Amulya

P. 6 P. 7 P. 8

2. It will appear from the genealogical table set out above that Debendra had one son and seven daughters. The son Jnanendra, has a son named Amar Ghosh. Debendra died in February, 1957. Both Jnanendra and Amar Ghosh are alive. It has been found as a fact by the Courtsbelow that Debendra, together with his large family was in actual possession of the entire premises uptil the year 1943-44. Since then, he gradually began to let out different portions of the said premises to tenants. The major portion of the premises was ultimately let out to tenants butat least one room was retained and occupied by him, and after his death by Jnanendra and others from time to time. It is in evidence that in 1949, Jnanendra acquired for himself another house being premises No. 28, Raja Basanta Roy Road, Howrah. This was however his individual acquisition and his evidence given in the proceedings below is that he continued to occupy a room in the family dwelling house and never abandoned the intention of occupying the same. Debendra died on the 18th February, 1957. On or about the 11th May, 1957 Umashashi, Jnanendra, Kamala, Bimala and Reba made a gift of their 5/8th share in the said premises to Amar Ghosh.' On 29th December, 1958 Parul Bala, by a sale deed sold her share in the said premises to the opposite party No. 1, Sri Satyendu Kundu. In the sale deed, her share has been described as one-sixth share in premises No. 74, Deshpran Sasmal Road, Howrah, although in reality Parul Bala had a one-eighth share and could convey no more. In 1960, Amar Ghosh and others instituted a partition suit. The parties in the suit are indicated in the genealogical table given above. The transferee, the opposite party No. 1 was also mad9 a party. It was numbered as T.S. No. 84 of 1960 in the Court of the First Subordinate Judge, Howrah. Thereafter, the petitioners made an application under Section 4 of the Partition Act, claiming to purchase the share of Parul Bala transferred to the opposite party No. 1. The relevant part of Section 4 of the said Act runs as follows:

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

3. The application was in the first instance decided by the learned Additional Subordinate Judge, Howrah, who by his order dated 9th February, 1961 allowed the application only in respect of the petitioners 1 to 5. The! application was dismissed with regard to the petitioners' Nos. 6, 7 and 8. It was declared that the petitioners Nos. 1 to 5 were entitled to buy out the share of the opposite party No. 1. They were directed to apply for a valuation of the said share according to law within 30 days from the date of the order, in default of which their application would stand dismissed.

4. In the application, three points were raised. The first point was as to what was the share of the petitioners in the suit premises and what share the opposite partly No. 1 had purchased from Parul Bala. The second question was as to whether the premises in question was the family dwelling house of Debendra Nath Ghosh, and the third question was as to whether the petitioners were entitled to apply under Section 4 of the Partition Act in respect of the share purchased by the opposite party No. 1. The first question arose, because the share transferred by Parul Bala was stated in the sale deed to be one-sixth, whereas in fact, Parul Bala had only a one-eighth share. It was held that the share transferred could only be one-eighth share in the premises and this point is not disputed before us. With regard to the points Nos. 2 and 3 it was held that the property. was purchased by Debendra Nath Ghosh in 1935 and upto 1943-44 the said Debendra Nath Ghosh and his large family were in actual occupation thereof. From 1943-44, Debendra Nath Ghosh began to let out portion of the house to tenants and ultimately a major portion of the house came to be let out. At least one room was retained by Debendra Nath Ghosh and was occupied by him and his son Jnanendra, and others. In 1949, Jnanendra purchased another house but he did not abandon occupation of the room in the said premises-There is no finding as to whether the daughters of Debendra are all married or not, and whether they or any of them ever came to reside in the said room at the time when the partition suit was filed, it was held by the trial Court that the petitioners 1 to 5 constituted an undivided family so far as this dwelling house was concerned and that it was their 'dwelling house' within the meaning of Section 4 of the said Act. Against the order of the trial Court dated 9th February, 1961, an appeal was taken before the learned Additional District Judge, Howrah, whko by his order dated 22nd/23rd December, 1961 affirmed, the decision of the trial Court and dismissed the appeal. It is against this order that the present appeal has been preferred.

5. The point made before us by Mr. Jana appearing on behalf of the appellants is that, in the facts and circumstances of this case there was no 'dwelling house belonging to an undivided family', which had been transferred to a stranger purchaser, and, therefore, Section 4 of the Partition Act had no application. Mr. Jana argued as follows: He said that Debendra had let out the premises to tenants and his only son, Jnanendra had purchased his own house and removed there in 1949, The daughter were all married and were living in the houses of their respective husbands or elsewhere but not in the said premises. He further pointed out that Amar Ghosh got his share in the said premises not by inheritance but as a result of a deed of gift. From this he argued that there was no undivided family and the premises in question was not dwelling house belonging to an undivided family so that it cannot be said that the appellant had purchased a share of a dwelling house belonging to an undivided family. It is, of course, not disputed that the appellant is not member of the family, but if the premises is not a dwelling house belonging to an undivided family then of course Section 4 would have no application. Really speaking, therefore, the point to be considered is as to the real meaning of the expression 'dwelling house' and 'undivided family' as used in Sub-section (1) of Section 4 of the said Act. Upon this point, there is a divergence of opinion between the various High Courts in India. We are, however bound by the views expressed on decisions of this Court which I shall now proceed to enumerate. The first casa to be cited is a Bench decision of this Court presided over by Mr. Justice Ashutosh Mookerjee -- Kshirode Chundar Ghosal v. Saroda Prosad Mitra, 12 Cal I. J 525. Mookerjee J., held that the elements which must co-exist to attract the operation of Section 4 of the Partition Act were, first, that the dwelling house should belong to an undivided family; secondly, that a share thereof should have been transferred to a person who was not a member of such family; and thirdly, that the transferee should sue for partition. It has now been decided, and the position is not disputed before us that, even where a suit for partition was not brought by the transferee but by a member of the joint family, the provisions of Section 4 were applicable. It was held that the word 'family' as used in 'the Partition Act, ought to be given a liberal and comprehensivemeaning, and it included a group of persons 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' is intended to be used in a very narrow and restricted way, namely a body of persons who can trace their descent from a common ancestor. In that case, the owners of the property were fifth in descent from the founder and were all daughters. They were all married, some living with their husbands in their 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 were said to have transferred their interests to their respective husbands. It was held that the owners of the said premises constituted a 'family' within the meaning of Section 4. The second ground urged was that even if the owners constituted a 'family' within the meaning of Section 4 of the said Act, they did not constitute an 'undivided family' to whom the dwelling house belonged. Mookerjee, J. said as follows;

'In our opinion, there is no sold foundation for this argument. It was pointed out by a Full Bench of the Allahabad High Court, in the case of Sultan ' Begum v. Debi Prasad, ILR 30 All 324 (FB), that the word 'undivided family' 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'. The learned Judges adopted this interpretation as consistent with the plain object of the section, and observed that it had been accepted as well founded in the case of Kalka Prosad v. Bankey Lall, 9 Oudh Cas 156. They further held that the contrary view which prevailed in the case of Hashmat All v. Muhammad Umar, ILR 29 Ail 308, where it had been ruled that the expression 'undivided family' was practically equivalent to a 'Joint Hindu family', could not possibly be supported. In our opinion, the view adopted by the Full Bench of the Allahabad High Court is based upon a reasonable construction of the section. The object of the section is to prevent a transferee from a member of a family, who is an outsider, from forcing his way into a dwelling-house, in which other members of the family, to which his transferor belongs, have a right to live. In fact, Section 4 of the Partition Act of 1893, is a logical sequel to Section 44 of the Transfer of Property Act, which provides that where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in the section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house ....... In the case before us, as we have alreadystated, it was not suggested in the Court below that the defendants did not constitute an 'undivided family' within the meaning of Section 4, and there is, in our opinion, no substance in this contention. The second ground, therefore, upon which we are invited to discharge the; Rule, cannot be supported. The conclusion follows that the petitioners are entitled to an order under Section 4 as a matter of right.'

6. The next case to be cited is Nil Kamal v. Kamakshya Charan, AIR 1928 Cal 539. In that case, it was found that the co-sharers were not the male descendants of one Kamala Kanta to whom the property originally belonged, but were respectively the sons of the daughter of a grand-son of Kamala Kanta and the sons of a daughter of a son of Kamala Kanta. It was further found that the parties did not actually reside in the house and were notin joint mess but were In service abroad. In fact it was found that the huts of which dwelling house comprised had in 1326 been blown down by cyclone. Mukerji, j. said as follows;

'The expression 'undivided family' as used in Section 4 Partition Act 4 of 1893 has been explained in a series of cases amongst which reference may be made to 12 Cal LJ 525, ILR 30 All 324 and 9 Oudh Cas 156, which has been relied on with approval in the other two cases just mentioned and Vaman Vishnu v. Vasudev Morbhat, ILR 23 Bom 73. These decisions lay down that the word 'family' as used in the section ought to be given a liberal and comprehensive meaning, and 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, that it is the ownership of the dwelling house and not its actual occupation which brings the operation of the section into play; and that the object of the section 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 transferer's family have a right to live'.

7. Section 4 of the Partition Act is of 'general application, and the 'undivided family' mentioned therein does not refer to a Hindu undivided family. The Section may also be applied to Muslims. This will appear from another Division Bench Judgment of this Court -- Latifannessa Bibi v. Abdul Rahman, (1933) 38 Cal WN 46 : (AIR 1934 Cal 202). In that case, it appeared that some of the members of a muslim family did not continuously reside in the family dwelling house, being employed in service elsewhere. Nevertheless it was held that the provisions of Section 4 were satisfied. Mitter, J. said as follows:

'The word 'family', as used in the Partition Act, ought to be given a liberal and comprehensive meaning which we have just referred. It is not necessary to constitute an undivided family, the same case points out, that the members of the family should constantly reside in the dwelling house nor is it necessary that they should be joint in mess and a recent decision of the Madras High Court has gone to the length of holding that even if the members of the family are divided in status, the Act will have application (see the case of Sivaramayya v. Venkata Subbamma, ILR 53 Mad 417 ; (AIR 1930 Mad 561 . ...'

8. In another Division Bench Judgment of this High Court -- Bata Kristo v. Akshoya Kumar, : AIR1950Cal111 , this Court again came to construe the provision of Section 4. Mitter J. pointed out that it was well established that an 'undivided family' within the meaning of Section 4, simply meant a family not divided 'qua' the dwelling house. He proceeded to say as follows :

'Undivided family has been held to mean simply a family not divided qua the dwelling house, in other words a family which owns a dwelling house and has not divided it. It does not mean Hindu joint family or even joint family. The members need not be joint in mess-The essence of the matter, therefore, is that the house itself should be undivided amongst the members of the family who are its owners. The emphasis is really on the undivided character of the house, and it is this attribute of the house which imparts to the family its character of an undivided family. For the members of the family may have partitioned all their other joint property and may have separated in mess and worship, but they would still be an undivided family in relation to the dwelling house so long as they have not divided it amongst themselves.'

9. The situation that arose in that case was that a member of the family transferred his share of the dwelling house to a stranger, while the remaining members continued to be in joint possession. Mitter, J. pointed out that in such a case under Section 44 of the Transfer of Property Act the 'stranger would not be entitled to joint possession and therefore, the position would not be affected so far as Section 4 of the Partition Act was concerned. The 'earned Judge pointed out that the Courts have not hesitated to put a liberal construction upon the Partition Act and to interpret the provision in such a way as would promote and fulfil the object of this piece of legislation' which is to preserve the integrity of a family dwelling house and enable the members of the family to keep it for themselves as far as possible. Section 4 of the Partition Act recognises that a person may be a member of the, family although he may not be owning a share in the dwelling house. It confers the right to apply, on 'any member of the family being a share-holder': the additional qualification of being a share-holder would not be necessary, if the intendment of the section was that membership of the family was equivalent to co-ownership of the house. Where the sites of the huts and of the homestead as a whole were the undivided property of the cosharers, the existence of separate huts of the cosharers does not destroy the integrity of the dwelling-house.

10. How far the Courts have gone in their liberal interpretation of Section 4 is exemplified in another Division Bench Judgment of thrs Court presided over by Chakravartti, A.C.J. (as he then was), Dulal Chandra Chatterjee v. Gostha Behari Mitra, : AIR1953Cal259 . The facts in that case were as follows: The house in Question was owned at one time by one Nilmani Mitra. On his death it devolved on his four sons. All the four brothers lived in the ancestral residential house until 1945 when they left Konnagar for Calcutta where they settled down for the purpose of carrying on business. They had let out the whole house. Three of the brothers allotted their shares to a stranger who filed a suit for partition. The fourth brother made an application under Section 4 of the Partition Act. The objection was that the house had ceased to be a dwelling house belonging to a joint family, because [he entirely of it had been let out to tenants and the house was in fact not used as a dwelling house. The learned Acting Chief Justice said as follows:

'It is not necessary for the purpose of this case to insist on the extreme view which can perhaps be taken on the strict language of the section, and I may proceed on the view which has been commonly accepted as to the true meaning of the word 'dwelling house' as used in Section 4(1). But assuming that the house concerned must be a residential house of the members of the family owning it, I am altogether unable to agree that any suspension of occupation or, for the matter of that, the absenceof the owners of the house therefrom or an occupation or terminable occupation by tenants, can have the effect of making the house cease to be dwelling house. . . ..... It has already been held in cases, too numerous to mention, that in order that an application under Section 4(1) of the Partition Act may lie it is not necessary that the co-sharer owners should be in constant residence at the house. From that position to the position where the house has been let out to tenants is but a short step forward. The creation of a tenancy does not terminate the possibility of the owners of the house returning to its occupation. The tenant may voluntarily give up possession or he may be ejected. What seems to me to be important Under Section 4(1) of the Partition Act is that the house concerned should either be actually in use, though not necessarily in constant occupation, by the owners as a residential house or that conditions should-be such that it is still possible for them to return to the occupation of the house at some future time.'

11. The learned Chief Justice referred to a decision of the Rangoon High Court -- J. C. Chatterjee v. Maung Mye, 12 R. Rang 343 : (AIR 1940 Rang 53), where it was held that if the house was mostly let out to tenants it could no longer be said to be a dwelling-house for the purpose of Section 4(1) of the said Act. This view was dissented from.

12. The position in law may therefore be summarised as follows:

(1) The provisions contained in Section 4(1) of the, Partition Act have been introduced in order to maintain customary privacy and to prevent the intrusion of strangers into the dwelling house belonging to an undivided family.

(2) A liberal interpretation is to be put upon the provisions contained in Section 4 of the Partition Act, as would promote and fulfil its object, which is to preserve the integrity of the family dwelling house and to enable the members of the family to keep it for themselves as far as possible.

(3) The expression, 'share of a dwelling house belong-in to an undivided family' occurring in Section 4 of the Partition Act is to be construed in the same way as the expression is construed in Section 44 of the Transfer of Property Act. Section 4 of the said Act carries forward the law laid down in Section 44 of the Transfer' of Property Act.

(4) in order to attract the provisions of Section 4 of the Partition Act, there should be 'a family' who must own a 'dwelling house'.

(5) As long as there is a 'dwelling house' which has not been divided 'qua' the family, it might be said to be a dwelling house belonging to an 'undivided family' for the purposes of Section 4 .

(6) The provisions of Section 4 are of general application and are not confined to a Hindu Joint Family.

(7) The word 'family' as used in Section 4 was not intended to be used in a narrow and restricted sense, namely a body of persons who can trace their descent from a common ancestor. It certainly includes such persons, but it is sufficient if there is a collective body of persons living together within the same curtilage, subsisting in common, and directing their attention to a common object and to the promotion of their mutual interests and social happiness.

(8) It is not necessary that all the members of such a family should continuously reside together. It is sufficient if some of them so reside, and others reside there temporarily or have not abandoned the intention of residing there, altogether.

(9) It does not matter if a part of the such dwelling house is let out to tenants or even the whole, provided that it can be shown that the owners have not given up their intention of residing therein. Whether they have such an intention or not is a question of fact, to be decided upon the circumstances prevailing in each case. For example, if the parties have given a permanent lease, it may be said to militate against their having an intention of resuming residence. -

(10) That some of the members of the family have transferred their interest to strangers will not by itself take the case out of the operation of Section 4. Until the dwelling house is completely alienated to a stranger, it is still an undivided dwelling house within the meaning, of Section 4.

(11) The fact that some of the members of the family possess other immovable properties or even dwelling houses, will not necessarily take the matter out of the operation, of Section 4.

13. These being the tests to be applied, let us apply them to the facts of the present case. It has been bound as a fact by the Courts below that Debendra had purchased the house in 1935 and he and his large family resided in the premises in question until 1943-44, after which he started letting out the various rooms in the said premises to tenants but retained one room in which he resided. This room was also used by his son Jnanendra and also by other members of the family. Jnanendra purchased a house for himself in 1949, but he did not stop using the said room nor did he abandon the intention of using the same at any time. Upon these facts, both the Courts below held that the provisions of Section 4 were satisfied and relief was granted under it. In our opinion, the decisions were correct. The fact that a major portion of the house was let out to tenants does not, for reasons stated above, take it out of the operation of Section 4. There is nothing in the facts of the present case to show that the parties did not have any intention of resuming possession. The fact again that Jnanendra had purchased a house for himself in 1949 does not take the matter out of the operation of Section 4. It has been found as a fact that he continued to be in possession of one room and never abandoned the intention of residing therein. So far as the married daughters are concerned, there is no specific finding as to where they reside at present; but it has been found as a fact that the members of the family were using this room in the said premises from time to time. The fact that some of the owners were married daughters, presumably living with their husbands, away from the dwelling house, does not by itself take the matter out of the operation of Section 4. Lastly, it was contended by Mr. Jana that the fact that Amar Nath Ghose got the house not by inheritance but by a deed of gift took the matter outside the operation of Section 4. I am unable to appreciate this argument. 1 do not see what difference it makes because Amarnath Ghose has got 5/8th share. In the property by a deed of gift and net by inheritance, if he can file a suit for partition, as he has done, Section 4 of the Partition Act would at once apply. The manner inwhich a share has devolved on a member of a family which owns a share in the dwelling house is immaterial. What is necessary is that such a member should be entitled to bring a suit for partition, which pre-supposes that the dwelling house is still undivided so far as the members of the family are concerned. In such a case, it would be an undivided family owning a dwelling house, within the meaning of Section 4. The tests therefore are fully satisfied in the facts and circumstances of the present case. I shall now refer to some decisions of other High Courts referred to by Mr. Jana. He has referred us to the decision of a single Judge of the Bombay High Court -- Bal Fatma v. Culamnabi Hajibhai, AIR 1936 Bom 197. Macklin, J. took notice of the Full Bench Decision of the Allahabad High Court, ILR 30 All 324 (supra), where it was held that the words 'undivided: family' in Section 4 must be taken to mean undivided 'qua' the dwelling house in question, that is to say, a family which owns the house but has not divided it. The learned Judge however held that a woman who marries and goes to live in her husband's house, 'prima facie' gives up her intention to continue to reside in her old house and in that view dismissed the application under Section 4. This view is not in accordance with the view expressed by this High Court, and cannot be followed. According to the Calcutta view, the mere fact that the property is owned by a family consisting of married daughters does not necessarily take the matter out of the scope of Section 4 and the fact that one of the owners has married and gone to live with her husband's family is not 'prima facie' proof of the fact that she does not intend to reside in the ancestral dwelling house. Mr. Jana has also referred us to certain decisions of the Madras High Court to the effect that the provisions of Section 4' should be strictly construed. That again to contrary to the view held by this Court, and the Madras Court has itself departed from this view and given a liberal construction to the provisions of Section 4. Other High Courts have also given a liberal interpretation. In a decision of the Orissa High Court, to which our attention has been drawn -- Mrs. Sushila Baral v. John Bunyan Baral, AIR 1956 Orissa 56, the Calcutta view was followed namely that a liberal interpretation should be given to the wora 'family' in Section 4 and it was not necessary to find that the members were constantly residing in it, and that they would constitute an undivided family within the meaning of that section when the dwelling house was left undivided. Section 4, in clear terms, refers to the ownership of the dwelling house by an undivided family, but whether the members of the family actually occupy it or rot, it may still be a dwelling house belonging to a joint family, and it does not cease to be so by reason of a portion being let out to tenants. In Abinash Chandra v. Sm. Kamala Devi, : AIR1953Pat344 a single Judge of the Patna High Court held that the expression 'dwelling house belonging to an undivided family' under Section 4(1) refers to the family dwelling house and not to any house or building for human dwelling belonging to an undivided family, and that a house which was in the occupation of tenants cannot be said to be a family dwelling house. This again is a view which has been dissented from in the Orissa case mentioned above and is not in accordance with the view of this High Court. Similarly, a single Judge of the Rangoon High Court held in J.C. Chatterjee v. Maung Mye, AIR 1940 Rang 53 that a house which is for the most of the time in the occupation of tenants cannot be a dwelling house belonging to an undivided family, within the meaningof Section 4. This view was dissented from by the Orissa High Court In the case mentioned above and is also not in accordance with the view expressed by this Court.

14. Lastly, Mr. Jana has taken the point that by virtue of the Hindu Succession Act, married daughters who are not actually in possession of a' family dwelling house and are not entitled as a matter of right to reside In the family dwelling house are not entitled to ask for partition thereof, unless the male members themselves ask for partition. From this he argues that a married daughter living in tier husband's house, having no right to reside in the ancestral dwelling house, cannot be said to be a member of an undivided family owning a dwelling house within the meaning of Section 4. In my opinion, this argument is of no substance. As I have mentioned above, actual occupation is not the material test. Cases have been stated above where a property devolved on married daughters, some of whom continued to reside in the ancestral dwelling house while others went to live with their husbands and occasionally visited the ancestral dwelling house. It was held that under such circumstances the provisions of Section 4 were attracted. The very fact that under the Hindu succession Act, married daughters may become owners of the family ancestral dwelling 'house without a right of residence therein, should induce the Court to give a still more liberal interpretation to the provisions of Section 4. In such a case, the right of ownership is there but the right of actual occupation is inchoate. It cannot be said in such a case that a married daughter does not hold the property jointly with the other co-sharers, thereby forming an 'undivided family' within the meaning of Section 4 of the Partition Act. Applying the well-known test, the property being undivided is still within the scope of Section 4. It is to be noted that although a married daughter has no right of residence in the ancestral dwelling house, she may come to possess that right under certain circumstances, for example, where she has been deserted or separated from her husband, or where she becomes a widow. Therefore, there is no absolute bar against the residence of a married daughter in the ancestral dwelling house. However, when a suit for partition is brought by any of the male members, she is entitled to her share and her right of residence is revived. It would not be fair, therefore, to deprive her of the right to exclude strangers in a suit for partition, In conformity with the provisions of Section 4 of the Partition Act.

15. For the reasons aforesaid, this appeal fails and should be dismissed with cost.

A.C. Sen, J.

16. I agree.


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