1. This is an appeal on behalf of defendants 1 to 4 and is directed against a preliminary decree for partition. The parties to the suit are descendants of one Tinkari Basu. The plaintiff Sushama is the wife of one of the grandsons of Tinkari and is the transferee of the interest which another grandson of Tinkori had in the joint family estate. The defendants are the other descendants of Tinkori who have an interest in the joint family property.
2. The plaintiff prayed for partition of the share purchased by her. Various defences were raised by the different sets of defendants, but in view of the limited points raised in the present appeal it is not necessary to refer in detail to the divergent cases as made by the parties in the lower Court. The two questions raised in the present appeal are whether there had been a previous partition as between the parties, and whether on the facts of the present case the provisions of Section 4 of the Partition Act can be invoked.
3. The learned Subordinate Judge held that the plaintiff had her alleged title to and possession of the disputed properties. The story of a previous partition as set up by the defendants was not true and that the defendants were not entitled to the benefits of Section 4 of the Partition Act in respect of the residential house. Certain other points discussed by the lower Court will be referred to when the cross-objection filed by the plaintiff and some of the defendants is considered.
4. With regard to the question as to whether there was a previous partition or not, it was stated in the plaint that in 1933 a deed of reference to arbitration had been executed by the then co-sharers. Arbitrators were appointed, but they did not file any award, and the Arbitrators became 'functus officio' though a plan had been prepared by a surveyor appointed by the arbitrators. No steps were taken for ascertaining the valuation of the separate parcels indicated in the said plan or for the equalisation of value of the shares indicated in the said plan. The parties entered into separate possession of some of the items of property, but there was no full and complete partition. The allotments indicated in the surveyor's plan were characterised as inequitable. Accordingly it was prayed that a preliminary decree might be passed for partition by metes and bounds of the 1/5th share claimed by the plaintiff.
5. Some of the defendants supported the plaintiff and prayed for separate allotments. Portions of the property which were being possessed by one or other of the parties were either improved or reconstructed at the costs of the party in possession.
6. Defendants 1, 2 and 7, however, maintained that though the arbitrators referred to by the plaintiff had not filed any award in writing, the surveyor appointed by them had prepared a map which made separate allotments in accordance with the respective shares of the parties. All the parties thereafter accepted the allotments so made and took possession according to the demarcation made. The said defendants further stated that 'Only the heirs of late Hiralal Basu did not approve of the pathway in front of their house and the proposal for the said pathway was not carried into effect.'
The parties were also alleged to have made various improvements to the properties in the demarcated allotments in their share, constructed structures thereon. The parties have been in separate possession thereof. Pannalal Basu, father of defendants 11 to 15, had filed written statements in various suits admitting that the said partition had been a completed one. It was further alleged that the share alleged to have been purchased by the plaintiff Sushama was really a purchase by Pannalal himself and the plaintiff had no present interest or possession. Pannalal had purchased the said share with his own money in the 'benami' of his daughter-in-law.'
(7 and 8) The learned Subordinate Judge has referred to the evidence as led, and oh a consideration thereof came to the conclusion that there had been no previous completed partition and that the plaintiff's purchase was for her own benefit and it was not a 'benami' transaction. (His Lordship reviewed the evidence and continued).
9. I do not think that the learned Subordinate Judge was in error in coming to the conclusion, that the defendants had failed to prove that there had been any completed partition.
10. The plea of 'benami', as raised by the defendants in the lower Court which was not accepted by the learned Subordinate Judge, has not been pressed in this Court. The only other question in the appeal that remains for consideration is, therefore, whether the purchase by the plaintiff Sushama from one of the co-sharers is to be deemed to be a sale to an outsider attracting the provisions of Section 4 of the Partition Act.
11. It is contended that the learned Subordinate Judge was in error in not applying the provisions of Section 4 of the Partition Act. He should have held that the plaintiff Sushama who was the wife of one of the co-sharers, viz. Gopal, defendant 12, could not be regarded as a member of the joint family, and the transfer to her was one to an outsider and not a member of the joint family.
12. Sub-section (1) of Section 4 of the Partition Act (4 of 1893) provides:
'Where a share of 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 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 share-holder, and may give all necessary and proper directions in that behalf.'
13. It is argued that in the first part of this sentence the undivided family referred to is the owner of the dwelling house. Immediately thereafter, where the transferee is referred to, the provisions of the section are to be attracted if such transferee 'is not a member of such family'. It is contended that the use of the word 'such' qualifying 'family' clearly indicates that the transferee must be one other than a person to whom the dwelling house belongs, as a member of the undivided family. There is no scope for giving an extended meaning to the expression 'member of such family', but it must be limited only to such members of the undivided family to whom the dwelling house belongs.
14. The learned advocate appearing for the appellant adopted as his argument the reasons given in -- 'Mian Jaffar Shah v. Mt. Bibi Gulla', AIR 1943 Pesh 79, purporting to follow the decision of -- 'Seodhar Prasad v. Kishun Prasad', AIR 1941 Pat 4. In the first place, the transferees defendants 7 and 9 in that case were not like the plaintiff and defendants 1 and 2, the descendants of a common ancestor. As to defendant 8 he was not even descended from the same common ancestor, but was descended from an ancestor of the said common ancestor. Both these defendants had no interest in the joint family homestead and were not residents therein. They could not be regarded as members of the family. There are, no doubt, certain observations in the judgment emphasising the implications of the words 'such family' appearing in Section 4 of the Partition Act. But those observations, for reasons given below, are not well founded.
15. It has been repeatedly held by this Court that the word 'family' appearing in Section 4 of the Partition Act should be given a liberal interpretation so as to give effect to the basic principles enunciated in Section 4 of that Act.
16. Reference may, in this connection, be made to -- 'Latifannessa Bibi v. Abdul Rahaman', 58 Cal LJ 174. The dwelling house in this case belonged to a Mahomedan daughter's daughter and a son. Following the observations in a Bench decision and the leading case on the point, -- 'Khirode Chandra v. Saroda Prosad', 12 Cal L J 525 the word 'undivided' appearing in the first part of Sub-section (1) of Section 4 of the Partition Act was to be construed liberally; the word 'family' is to be held to include not merely a body of persons who originate from a common ancestor, but also a group of persons related by blood and living in one house or under one head of management. As was observed by Mitter, J. in -- 'Latifannessa v. Abdul Rahaman', 58 Cal LJ 174 at p. 178, it was not necessary to constitute an undivided family that the members of a family be constantly residing in the dwelling house nor was it necessary that they be joint in mess.
17. In -- 'Sivaramayya v. Venkata Subbamma', 53 Mad 417, it was held: 'Where a purchaser of a share in a dwelling house from a member of a Hindu family whose members although divided in status, occupy the house in common, sues for partition of the house against the other members of the family, one who is a defendant in the suit is competent to apply for the benefit of Section 4 of the Partition Act.'
See also -- 'Nilkamal v. Kamaksha Charan' : AIR1928Cal539 ; -- 'Sultan Begum v. Debt Prosad', 30 All 324 (FB).
18. In -- 'Latifannessa v. Abdul Rahaman', 58 Cal L J 174, the transferee was a son-in-law of one Samsuddin, a member of the undivided family to whom the dwelling house belonged. Ordinarily a son-in-law would not be regarded as a member of the family. When, however, a son-in-law who actually resides in the family of his father-in-law for a number of years and has practically taken up his house with his father-in-law, he is regarded as a member of the family of the father-in-law -- 'Gobinda Rani Dassi v. Radhaballabh Das', 12 Cal L J 173.
19. In the case now before us the transferee is the wife of one of the members of the joint family owning the dwelling house. Under normal condition of things contemplated in a Hindu society and under Hindu law the residence of the wife is the home of her husband. Reference may in this connection be made to the various original authorities on Ritual and Law quoted in--'Churamon Sahu v. Gopi Sahu', 37 Cal 1 defining the duties of a wife in the home of her husband. The reasons which were assigned in -- 'Gobinda Rani Dassi v. Radha ballabh Das', 12 Cal L J 173 in support of a right of maintenance in favour of a son-in-law so long as he resides as a member of the family of his father-in-law apply with greater force when considering the wife of a member of the joint family as she is herself a member of that family.
20. To a wife or minor children of the members of a joint family, the members of the joint family owe certain duties and the former having the right of residence and/or maintenance under certain circumstances make it abundantly clear that such relations must be deemed to be members of the undivided family. In accordance with the notions of a Hindu family infant children are considered to be members of the family.
21. It is not necessary for us to consider in the present ease whether an outsider who has no right either of maintenance or of residence, but is kept by way of charity by some member or other of the joint family is himself to be regarded as a member of the undivided family for the purpose of attracting the provisions of Section 4, of the Partition Act.
22. It cannot be contended that because under the Dayabhaga sons do not on birth get an interest in the joint family property, they are not to be regarded as members of the joint family.
23. The emphasis which was laid on the expression 'such family' as having reference to the members of an undivided family who are the owners of the dwelling house is not justified; first, because the members of the undivided family need not themselves be descended from one common ancestor as indicated already, and secondly, because according to the Hindu law & the social structure of the Hindu society the wife or a member of the joint family is for all practical purposes a member and part of the joint family who cannot be regarded as strangers.
(23a) The learned Subordinate Judge was, therefore, correct in refusing to entertain the application of the defendants to invoke the provisions contained in Section 4 of the Partition Act on the ground that the plaintiff purchaser was not a stranger to the family.
24. The same view was taken in -- 'Laksman Dhondopant v.' Mt. Lahana Bai', AIR 1937 Nag 4. A widow of a member of a Hindu joint family herself was a member of that joint family in its strictest sense. She is 'a fortiori' a member of an undivided family within the meaning of Section 4 of the Partition Act. The object of this provision in the Partition Act is to prevent a transferee who is an outsider to the family itself from forcing his way into a dwelling house in which other members of the transferor's family have a right to live. (See also)
'Nil Kamal v. Kamaksha Charan' : AIR1928Cal539 . A cross-objection has been filed jointly by the plaintiff and defendants 12 to 16. So far as the plaintiff is concerned the cross-objection is directed against defendants 1, 2, 7 and 11 against the decision of the learned Subordinate Judge disallowing costs in favour of the plaintiff even though the pleas of 'benami' raised by defendants 1, 2, 7 and 11 had been overruled.
25. The cross-objection filed by defendants 12 to 16 is against their brother defendant 11 alone. One of the points raised in the written statement by defendants 12 to 15 was that their eldest brother, Keshab, defendant 11, was separate from the joint family and was living separate from before the death of their father Pannalal. Keshab, defendant 11, was not accordingly entitled to get any share from out of the properties left by their father Pannalal.
26. The question of costs raised by the plaintiff may be shortly disposed of. No doubt, the ordinary rule is that in a suit for partition the parties would bear their respective costs up to the preliminary decree. Costs incurred thereafter till the final decree is to be apportioned according to the shares each party has in the joint family properties. There is, however, an exception. If a question of title is raised by one of the parties as against any other or more of the other parties and that by itself is raised in issue for decision before the preliminary decree is passed the Court takes the result on that issue into consideration for determining whether costs are to be made payable by one party to the other. -- 'Satya Kumar v. Satya Kripal', 10 Cal L J 503, 516; -- 'Harey Harey Sinha v. Hari Chaitanya Sinha', 40 Cal WN 1237, 1246.
27. In the present case as it appears from the trend of evidence led by the parties and the judgment, the most important Issue raised and fought in the Lower Court was whether the title alleged to have been acquired by the plaintiff Sushama from one of the co-sharers Birendra by exhibit 2 was a purchase for her own benefit or was really a conveyance in favour of Pannalal in the benami of Sushama. The learned Subordinate Judge has on a consideration of the evidence in the case reached the conclusion that the purchase by the plaintiff was for her own benefit and the story of benami set up by some of the defendants was not proved.
28. The learned Advocate appearing on behalf of the defendants appellants in this Court did not contend that the decision on the question of the plaintiff's title was not correct. As indicated already the appeal has been limited on other grounds. In this view it is not understood why the learned Subordinate Judge did not direct the contesting defendants 1, 2, 7 and 11 to pay at least some portion of the costs to the plaintiff. It is no doubt true that the question of the payment of costs is in the discretion of the Court, but in the circumstances as stated above it was up to the learned Subordinate Judge to refuse costs in favour of the plaintiff stating some reason or other which in his view justified such an order. The learned Subordinate Judge, however, merely stated that considering every thing it seems proper that the parties should bear their own costs up to the stage of the preliminary decree. We have not been able to find out any circumstance which would justify the Court refusing the plaintiff to realise some portion of the costs inasmuch as the real right between the parties in the lower Court was limited to the question of the plaintiff's title and whether she held the property as a 'benamidar' of her father-in-law Pannalal.
29. In our view, defendants 1, 2, 7 and 11 should be directed to pay Rs. 200/- (Rupees two hundred only) as consolidated costs incurred by the plaintiff in the lower Court up to the stage of the preliminary decree,
30. With regard to the next point raised in the cross-objection the question whether defendant 11 Keshab was separated from his father Pannalal, and if so, whether he was entitled to get any share in the property left by his father was specifically raised in the pleadings as also in Issue 8 as settled by the Court below. The learned Subordinate Judge came to the conclusion that in view of the clear admission made by Keshab in the original written statement wherein it had been stated that he had separated from his father and continued to remain separate till the last days of his father, it must be held that Keshab was separate and continued to be so till the death of his father. An additional written statement was subsequently filed by Keshab where he modified the statement originally made and it was alleged that though he had separated during his father's life time, a month or two before the letter's death there had been reconciliation and he became reunited with his father. There being no satisfactory evidence to show that Keshab was reunited with his father before his death this story was rightly rejected by the learned Subordinate Judge.
31. The learned Subordinate Judge next proceeded to consider whether the separation of Keshab from his father disqualified him from getting a share in his father's property along with his other brothers after the father's death.
32. The family is admittedly governed by the Dayabhaga School of Hindu Law, and the question is whether sons living in joint mess with their father at the time of the latter's death and to inherit the paternal property in preference to the son who was living in separate mess from the father from before the latter's death.
33. Under the Mitakshara School of Hindu Law all the members of the coparcenary have some interest in the coparcenary property. The trial Court had been called upon to consider if a member of the coparcenary died leaving self acquired property does the undivided sons succeed to such property to the exclusion of the divided sons. There had been a sharp conflict of opinion in the different Courts. According to the Allahabad, Bombay and Madras view --'Ganesh Prasad v. Hazarilal', ILR (1942) All 759 (FB); --'Narasimha Rao v. Narasimhan', 55 Mad 577; -- 'Fakirappa v. Yellapa', 22 Bom. 101 the undivided sons are entitled to succeed as heirs to the exclusion of the divided sons and their branches. The Lucknow Court on the other hand held that all the sons inherit together as partition does not destroy rights of inheritance to the self-acquired property of a separated member -- 'Badrinath v. Hardeo', 5 Luck 649; -- 'Ambika v. Jamuna Prasad', 17 Luck 72.
34. There is no direct decision on this point in respect of parties governed by the Dayabhaga School of Hindu Law.
35. On behalf of the cross-objectors defendants 12 to 16 it is contended that the principles applicable in the case of succession to self acquired property left by a Mitakshara coparcener is applicable to cases of succession under the Dayabhaga School to all properties left by a father.
36. In the case of self-acquired property held by a member of a Mitakshara coparcenary the person who is the holder is the absolute owner thereof, and he is not required to consult any other member of the coparcenary in regard to the disposal of such self-acquired property. Such self-acquired property as soon as it devolved on the next generation it becomes joint family property, and as observed in -- 'Rajah Ramnarain Singh v. Pertum Singh', 20 W R 189 (Cal) such self-acquired property as soon as it comes
'into the hands of some one in the next generation it becomes joint family property of several persons united together as a joint family with regard to it, -- the property of a new joint family property springing from a new root and it continues to go down by one rule of descent only.'
37. Mulla in, his Hindu Law, tenth edition, Section 43 taken with Section 341 has laid down the law about divided and undivided sons in respect of self-acquired properties under the Mitakshara schools as indicated above. While dealing with. the order of succession under the Dayabhaga School of Hindu Law, he notes that amongst the 'sapindas' the sons, grandsons and great grandsons succeed in the same manner as under the Mitakshara referring to the statement of law as contained in Section 43 of his book.
38. In our opinion, this is not a correct exposition of law so far as the Dayabhaga School of Hindu Law is concerned. It is now wellknown that the sons have no co-ownership in their father's wealth. Reference is made in this connection to paras. 14 and 18 of Chap. I of the Dayabhaga.
'14. That is not correct; for it contradicts Manu and the rest. After the death of the father and the mother the brethren being assembled, must divide equally the paternal estate; that they have no powers over it while their parents are alive.' '18. Devala too expressly fix the right of sons in their father's. When the father is deceased! let the sons divide the father's wealth; for sons have no ownership while the father is alive and free from defect.'
39. Reference may further be made to para. 9 in Chap. I of the Dayabhaga which provides:
'Thus there are two parts of partition: one, when the father's property ceases; the other by his choice while the right to property endures.'
(39a) Later on in the same Chapter in para 50 Jimutabahana further observes:
'It is thus established by reasoning, as well as by positive law, that two parts exist for the partition of wealth appertaining to a father whether acquired by himself or inherited from ancestors.'
40. If partition is effected during the lifetime of the father and under his direction and by his choice he has got absolute rights of ownership over all properties held by him, whether ancestral or self-acquired, and partition made by the father in spite of certain injunctions in the Smritis against unequal divisions (which have been held to be mere moral precepts).
41. From the very earliest times it has been held by this Court that sons share equally the estate left by the deceased father when governed by the Dayabhaga School -- 'Gadadhar v. Ajodhyaram', 18 S. D. A. 6; -- 'Bhairabchand v. Rasamoy', 1 S. D. A. 27; -- 'Iswar Chandra v. Govinda Chand', -- Mc. Naughten's Institute of Hindu Law, page 74.
42. It is not necessary for us at this stage to consider whether the view taken by the Sadar Dewani Adalat in 1812 in -- 'Ram Kumar v. Kishen Kunker', 2 S. D. A. 45, that in a family governed by the Dayabhaga school of Hindu Law father was legally entitled to make a gift of the entire estate, ancestral or self-acquired, as also real and personal, to one of his sons was laying down a correct proposition of law or not. When again a reference was made by the Supreme Court of Bengal, the Sadar Dewani Adalat recorded their opinion, that consistently with the decision of the Court and the custom and usages of the people a father governed by the Dayabhaga School of Hindu Law could without the consent of his sons transfer immovable ancestral property and that without the consent of the sons he could by will prevent, alter or affect their succession to such property -- 'Juggomohan v. Neemoo', Morton 90. Ever since, the rights of a father in Bengal over the ancestral property have been accepted as good law, Jimutabahana was interpreted as having expressed the view in Dayabhaga Chapter 2,28 that the text of Vyasa prohibiting a sale of gift or ancestral immovable property was only intended to inculcate a moral offence. without in any way invalidating the transfer if actually made. It is now too late in the day for the Court to consider this position, but we ought to keep in mind the observations of Jimutavahana at this place when reference is made to other texts which are to a certain extent coloured by similar expressions of opinions discouraging if not disapproving the wide and absolute power of disposal by a father in Bengal.
43. It is clear that under the Dayabhaga School of Hindu Law there is no scope for the sons getting on partition any portion of the ancestral property, not to speak of the self-acquired property in the hands of their father so long as the latter is alive. The test, therefore, which is applied in the case of Mitakshara family to differentiate between a joint and a separated member of the family so far as the sons are concerned is inapplicable in the case of a family governed by the Dayabhaga School of Hindu Law. Under the Mitakshara School the sons as they are born become members of the coparcenary with some interest in the coparcenary property. It is. therefore, possible for a separation and partition by a son from the father during the life-time of the latter even without the father's consent or his agreeing to partition. When a son is thus separated from the coparcenary in respect of coparcenary property he acquires a status which is distinct and different from the status of his other brothers who may continue to remain joint with their father or even after partition become reunited in a joint family. This state of things is an impossibility under the Dayabhaga School of Hindu Law.
44. The test which is applied in some of the cases coming under the Mitakshara school is not whether a son is living separate in mess from the coparcenary, but whether he has become separated in status from the other members including his father and other brothers.
45. If the same tests were to be applied to leases coming under the Dayabhaga School of Hindu Law, the only test that would be possible is where a son who has no present interest in the properties held by the father is living away from the father,--there being no partition possible between himself and his father and his other brothers in respect of the property held by the father.
46. There are no authorities under which. the rights of an heir can be defeated merely because such an heir is living away from, and was separate in mess from the last owner.
47..The only case to which reference may be made is to certain precedents referred to by Shyama Charan Sarkar in Vyvastha Darpana, third edition, pages 659 to 660.
48. In a case where one of three sons having separated himself from the family and taken a share during his father's life time, such a son was held not to have any further claim on the father's estate. It was made clear that mere living apart does not exclude one of the sons from inheritance.
The first question which was put to the Court-Pundits was:
'A person had three sons the eldest of whom having been separated from his father lived apart. Afterwards the father died. In this case, are only those sons who lived with him entitled to succeed him; or have all his sons an equal right of succession?'
49. Relying on the following texts of Narada and Brihaspati cited in the Dayabhaga:
'Shares which have been assigned by a father to his sons, whether equal, greater or less, should be maintained by them; also they ought to be chastised.'
'If such as have been separated by their father with equal, greater or less allotment of wealth that is a lawful distribution: for the father is lord of all.'
The reply which was given was in the following terms:
'Supposing the father, by mutual free will and consent to have given some wealth out of his self acquisition to his eldest son and separated him from his family; in this case, on the death of the father, the eldest son has no right to get any additional portion of his father's acquisition from his brother.' The second querry as made by the Court was in the following terms:
'If there had been no separation from the father, and the eldest son had left the family on account of a dispute which had taken place between his wife and the other members of the family; in this case has the eldest son-any right to share his father's estate?' The reply given was thus recorded:
'Supposing the father not to have given any property to his eldest son, or to have made any division of it, and the eldest son who has lived apart then on the death of the father all his sons share the inheritance.'
50. The questions as noted and the replies are recorded by McNaughten in his Hindu Law, Volume II Chapter I, page under Case No. 5 and are reproduced by Shyama Charan Sarkar in the Vyvashtadarpan, third edition, pages 660 to 661.
51. Under the first question above referred to the son who was living apart from his father was declared not to be entitled to any additional portion of the father's estate after the latter's death dependant on two primary conditions: (i) The father had given the son some wealth out of his self acquisition, and (ii) he had' separated him from his family.
52. Under the second question where a son living separate is found to be entitled to a share along with his brothers the estate left by his father is made contingent on--(i) the father not having given any property to the son the father ought not to have made any division of his estate during his life time and (ii) that the son was living apart from the father, and not that the father had separated the son from the family.
53. The law as interpreted gives an absolute right to the father in Bengal over ancestral and self-acquired properties. The expressions of opinion by Jimutavahana in paragraphs 38 and 50 of Chapter 1 of the Dayabhaga quoted above merely make a reference to an option which may be exercised by the father partitioning his estate during his life time. He may make unequal distribution and no objection, can be raised thereto. If in the exercise of his right he gives a portion of the property to one of his sons and he separates him from the family that is tantamount to a declaration by him that what he, intended to give to such a son so separated had already been decided upon by him. After his death the other sons who continue to live with him would divide among themselves the property left by the father.
54. If on the other hand, one of the son lives separate from the father's family for some reasons or other and if the father had not during his life time given that son any portion of his estate, the right which the sons have to succeed to the estate of his father cannot in any way be affected merely by the fact that he was living separate from the father's family.
55. In the case now before us the only fact which has been found by the Court below is that Keshab, defendant 11, was living away from his father's family and it is not the case of any one of the parties that he was separated lay the father. Further, it is not the case of any one of the parties that Keshab had been given by his father Pannalal any portion of his estate when he began to live separately. The two conditions, therefore, under which it may be presumed that a father had separated one of, his sons disentitling him to get the normal inheritance after the former's death are not proved. There is no ground, therefore, in the present case for limiting the distribution of the estate of Pannalal to his sons other than Keshab. This objection against defendant 11 must, therefore, be overruled.
56. This appeal is accordingly dismissed and the cross-objection is allowed in part only in respect of the plaintiff's claim for costs against the contesting defendants 1, 2, 7 and 11 who raised a plea of 'benami' against her to the extent that the plaintiff will get Rs. 200/-'(Rupees two hundred only) as consolidated costs up to the preliminary decree in the trial Court from defendants 1, 2, 7 and 11.
57. Each party will bear his own costs in the appeal and in the cross-objection in this Court.
58. I agree and desire to add a few words.
59. This is an appeal by defendants 1 to 4 against the preliminary decree in a suit for partition. The subject-matter of the dispute is the ancestral homestead situated at village Barisa and some agricultural lands and tanks adjoining thereto.
60. It is admitted that the parties are the descen4ants of one Tinkari Basu who left six sons named Hiralal Basu, Chunnilal Basu, Pannalal Basu, Nanilal Basu, Manilal Basu and Benodelal Basu. Defendants 1 to 10 are the descendants of Hiralal. The plaintiff Susama Rani Basu is the wife of defendant 12 Gopal Lal Basu who is one of the sons of Pannalal. By a conveyance, dated 29-1-1941, the plaintiff Susama purchased the interest of Birendra, son of Manilal, and instituted the present suit for partition.
61. The suit was contested by the present defendants on three grounds viz., that Susarna was the 'benamidar' of Pannalal; that the suit was not maintainable because there had been a previous partition; and that the defendants were entitled to pre-empt the interest of the plaintiff under Section 4 of the Partition Act. The learned Subordinate Judge overruled the defence and made a preliminary decree for partition against which defendants 1 to 4 have filed the present appeal. There is also a cross-objection by the plaintiff (respondent 1) and defendants 12 to 16 (respondents 9 to 13).
62. Mr. Chakravarti appearing in support of the appeal has not raised the question of 'benami', but has confined his arguments to the other two' points. It has been argued in the first place that there had been a completed partition between the parties, and, therefore, the present suit was not maintainable. In paras 7, 8 and 9 of the plaint, the plaintiff alleged that by an 'achalnama', dated 29-9-1933, the then co-sharers with a view to effect an amicable partition of the properties appointed three arbitrators named Jagindra Nath Mukherjee, Chandi Charan Ganguli and Susil Kumar Chatterjee, and it was agreed that the arbitrators should publish their award within six months, The arbitrators appointed a surveyor to prepare allotments. The said surveyor prepared a plan in accordance with the possession of the parties, but nothing was done in the matter of equalisation of shares on the basis of valuation or owelty money, and the arbitrators never published their award. The parties have been in possession of different parts of the property for convenience and enjoyment, but a completed partition was not effected thereby. The plaintiff accordingly alleged that there was no regular and complete partition amongst the parties and prayed for partition by metes and bounds.
63. In para 10 of the written statement on behalf of defendants 1, 2 and 7, it was alleged that though the arbitrators did not publish their award, 'all the parties accepted the plan prepared by the surveyor, and only the heirs of Hiralal Basu did not approve of the pathway in front of their house, and the proposal of the said pathway was not carried into effect.
64. The appellants before us are the heirs of Hiralal Basu. In the written statement filed by them they allege that they did not accept the pathway in front of their house. If that be so, it is difficult to see how the remaining portion of the surveyor's plan could be agreed upon by all the co-sharers.
(64a) Mr. Chakravarti has relied upon the recitals in the plaintiff's 'Kobala', exhibit 2 to prove that there had been a completed partition. It is true that in the earlier portion of the 'kobala' reference is made to the appointment of arbitrators and the preparation of the plan by the surveyor, and there is also an assertion that the vendor Birendra Kumar Basu was the sole owner of the properties sold by the 'kobala', but towards the end, there is also a recital to the effect that if the amicable partition is not considered to be effective, the vendee will get the vendor's ancestral three annas and four gandas share in the properties. The recitals of the 'kobala', therefore, do not prove that there was a completed partition.
65. Turning to the oral evidence adduced by the ' defendants, we find that defendants' witnesses 2 and 3, Subodli Kumar Banerjee and Jagat Jouti Banerjee, have admitted in their cross-examination that the cosharers are in occupation of some of the rooms of which they were in occupation before partition. It is clear from this evidence that th3 possession of the co-sharers was not effected by the partition plan prepared by the surveyor. There is no evidence that the allotments made by the surveyor were in accordance with the respective shares of the cosharers or that any provision was made for owelty money for adjusting the inequality of the allotments.
66. Mr. Chakravarti has further urged that a presumption should be drawn against the plaintiff for non-production of the surveyor's plan which is in the possession of the plaintiffs husband Gopal Lal Basu. Gopal has said in his evidence that he does not remember whether he brought the plan irom Naba Kumar Pal (Surveyor). There is nothing to show that this plan was called for from Gopal during the trial. In these circumstances, and particularly in view of the allegations made in paragraph 10 of the written statement, we are not prepared to draw any adverse inference against the plaintiff. The first point raised by the appellants accordingly fails.
67. The second point urged by the learned Advocate for the appellants is that Section 4 of the Partition Act applies to the case, and as such, the appellants are entitled to pre-empt the interest purchased by the plaintiff. The learned Subordinate Judge has rejected this claim on the ground that Section 4 applies only when a stranger to the family purchases the share of a member of the undivided family to which the homestead belongs, and as the plaintiff in the present case is the wife of a cosharer. she must be said to belong to the undivided family, and, therefore, Section 4 has no application. Mr. Chakravarti has argued that in order to take a case out of the operation of Section 4 the transfer must be to a person who is not only a member of the undivided family, but must also have a share in the dwelling house. In other words, the expression 'such family' occurring in the first half of the section means the undivided family which owns the house. Reliance has been placed upon the decision of the Judicial Commissioner of Peshawar in the case of -- 'Mia Jaffar v. Mst. Bibi Gulla', AIR 1943 Pesh 79 for this view. In that case, there was a transfer to the wife of a co-sharer, and the application under Section 4 of the Partition Act was allowed upon the view that the transferee wife was not a co-sharer of the dwelling house and was not, therefore, excluded from the operation of Section 4. With great respect to the learned Judge who decided that case, we cannot accept that view as correct.
68. The view expressed in the case reported in AIR 1943 Pesh 79 is opposed to the observations made in the case of -- 'Kshirode Chandra v. Saroda Prosad', 12 Cal L J 525; at p. 532 Sir Ashutosh Mookerjee observed as follows: 'The phraseology of Section 4 makes it clear that there may be members of the family who have no share in the dwelling house, and that Section 4 makes it essential that the member of the family who undertakes to buy the share of the stranger transferee should be a share-holder in the dwelling house which implies that there may be members of the family who are not such share-holders.' Again in the case of -- 'Boto Krishna v. Akhoy Kumar', : AIR1950Cal111 , another Division Bench of this Court made the following observations :
'The section itself appears to us to recognise 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 shareholder', 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.'
We respectfully agree with the observations made in these two last decisions, and hold that Section 4 is not attracted to a case where the transfer is to a member of the undivided family who is not a co-sharer of the dwelling house It has been uniformly held that the object of Section 4 is to prevent an outsider from forcing his way into a dwelling house where the other members of the family have a right to live. See the cases of -- 'Khirode Chandra v. Saroda Prosad', 12 Cal L J 525, and -- 'Nil Kamal v. Kamakshacharan' : AIR1928Cal539 .
69. The wife of a co-sharer to whom the transfer has been made in the present case has a right to live in the house as much as any other co-sharer. Section 4 of the Partition Act cannot, therefore, be applied to prevent her from possessing a share of the house. In our opinion Section 4 requires that the application for pre-emption must be by a member of the undivided family, who must also be a shareholder, but it does not require that in order to take a case out of the operation of Section 4, the transferee should also be a share-holder besides being a member of the family. This is evident from the fact that though the expression 'being a share-holder' is used as a qualifying expression of the applicant for pre-emption, it is not so used in the case of the transferee. The second point urged in support of the appeal must also be overruled.
70. As all the points urged in the appeal fail, this appeal must be dismissed.
71. There remains the cross-objection by the plaintiff and by the defendants 12 to 16.
72. The cross-objection by the plaintiff is directed against defendants 1, 2, 7 and 15, and it relates to costs. For the reasons given by my learned brother, I agree that the plaintiff should get the consolidated amount of Rs. 200/-as costs in the trial Court up to the preliminary decree.
73. The cross-objection by defendants 12 to 16 is directed against defendant 11 and it raises two points.In the first place, it is said that defendant 11 having separated from his father Pannalal Basu during the latter's life time is not entitled to any share of the inheritance. I have had the advantage of reading the judgment which has been delivered by my learned brother on this point, and I fully agree with the reasons given by him for rejecting this point, raised by defendants 12 to 16, and I have nothing more to add.
74. The second point raised in the cross-objection of defendants 12 to 16 is that they spent a sum of Rs. 4722/- on account of the funeral expenses and medical expenses of Pannalal Basu, and also a substantial amount for the reconstruction of that portion of the house in which Pannalal lived and that defendant 11 is not entitled to possession of any portion of the 4/15ths share of Pannalal Basu without payment of the proportionate amount payable by him. This point was the subject-matter of Issue 9 before the learned Subordinate Judge, and by his judgment, the learned Subordinate Judge left this Issue open in the present suit. Mr. Mitter appearing in support of the cross-objection has, however, pressed this point and has argued that his clients do not desire this Issue to be left open. We have accordingly thought fit to give our decision on this Issue.
75. Assuming the allegations made by defendants 12 to 16 in their written statement to be true, it is difficult to understand on what principle they can claim contribution or reimbursement in respect of these amounts. With regard to the amount spent for the reconstruction of the house, reliance has been placed on certain entries in the account book, exhibit 7(a) which show that certain sums were received by Pannalal Basu through defendant 12 Gopal Lal Basu. It is argued that the amounts covered by these entries were advanced by Gopal as loans to Pannalal. The entries, however, do not prove that the amounts were advanced as loans. The amounts spent for the funeral and medical expenses of Pannalal Basu cannot also be regarded as advances made to Pannalal Basu on any account. For these reasons, the second point raised in the cross-objection of defendants 12 to 16 must also be overruled.
76. I, therefore, agree with my learnedbrother that the appeal and the cross-objectionof defendants 12 to 16 should be dismissed, andthe cross-objection of the plaintiff should beallowed in part and she should get the consolidated amount of Rs. 200/- as costs in the trialCourt up to the preliminary decree. I alsoagree that the parties should bear their ownshare of the costs in the appeal and the cross-objections in this Court.