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Satyabhama De Vs. Jatindra Mohan Deb and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Reported inAIR1929Cal269
AppellantSatyabhama De
RespondentJatindra Mohan Deb and ors.
Cases ReferredPran Krishna Bhandari v. Keshah Chandra Roy
Excerpt:
- 1. this appeal is by defendant 9 in a partition suit. the facts are that the plaintiffs brought a suit for partition of a dwelling house and some agricultural lands. in the plaint they prayed that if their share was not allowed in the dwelling house they might be allowed a proportionate parcel of the agricultural lands in lieu of their share. the appellant did not appear at the earlier stages of the suit but her husband defendant 10 appeared and filed a written statement in which he said that the plaintiffs' share in the dwelling house might be valued and defendant 10 be allowed to purchase it, he being a member of an undivided family. in view of the pleadings the preliminary decree, which was passed on 5th december 1921, directed that the plaintiffs could not get any share in the.....
Judgment:

1. This appeal is by defendant 9 in a partition suit. The facts are that the plaintiffs brought a suit for partition of a dwelling house and some agricultural lands. In the plaint they prayed that if their share was not allowed in the dwelling house they might be allowed a proportionate parcel of the agricultural lands in lieu of their share. The appellant did not appear at the earlier stages of the suit but her husband defendant 10 appeared and filed a written statement in which he said that the plaintiffs' share in the dwelling house might be valued and defendant 10 be allowed to purchase it, he being a member of an undivided family. In view of the pleadings the preliminary decree, which was passed on 5th December 1921, directed that the plaintiffs could not get any share in the dwelling house but they should get a share in the lands of the value of the share they had purchased in the property. On the same day namely 5th December 1921, defendants 14 to 19, who are respondents in this appeal, filed an application in which they prayed that their possession might be maintained and that they might be given a separate saham including the portion in their possession. These defendants claimed to be in possession of a portion of the dwelling house and asked that that portion might be allotted to them on partition. After the preliminary decree a final decree was also passed in terms thereof. At the instance of defendant 10 the final decree was subsequently set aside. Before another final decree could be passed the appellant appeared in Court on 14th December 1925 and filed an application under Section 4, Partition Act (Act 4 of 1893) praying to be permitted to purchase the shares of the plaintiffs and of defendants 14 to 19 all of them being strangers to the family. The trial Court allowed the application and directed that the appellant should be permitted to purchase the shares of the plaintiffs and of defendants 14 to 19 in the homestead described in Schedule ca of the plaint. Against that order an appeal was taken to the District Judge of Dacca and the Additional District Judge by his judgment dated 17th May 1926 dismissed the appeal so far as it related to the plaintiffs' share but allowed the appeal in respect of the shares of defendants 14 to 19 holding that the lower Court was in error in permitting defendant 9 to purchase the shares of these defendants. From the decree of the District Judge two appeals were preferred to this Court, one by the plaintiffs against the order of sale of their share of the dwelling house and the other the present appeal by defendant 9 against the order dismissing her prayer to purchase the shares of defendants 14 to 19. We have already allowed the plaintiffs' appeal and held that in the circumstances of this case defendant 9 is not entitled to claim relief under Section 4, Partition Act.

2. Now in this appeal the appellant's contention is that the defendants 14 to 19 are strangers who had purchased shares in the dwelling house from some of the defendants' cosharers and that the appellant should be permitted under the provisions of Section 4, Partition Act to purchase their share in the dwelling house. The learned Judge has disallowed the appellant's prayer on the ground that the Partition, Act does not authorise the original shareholder to purchase the share of a stranger to the dwelling house other than the stranger who sues for partition. The effect of this order is that because the respondents are not plaintiffs in the case their shares cannot be purchased by the defendants under the law. We have considered this matter carefully and we have come to the conclusion that the order of the lower appellate Court cannot be supported.

3. Before entering into the substantial question raised in the suit we should dispose of a preliminary objection which has been taken on behalf of the respondents. It has been argued that under Section 8, Partition Act, an appeal lies from an order for sale made by the Court under Section 4. This appeal is against an order made by the District Judge refusing to pass an order for sale and therefore, it is not open to appeal, We do not think that this contention ought to prevail. The first Court passed an order for sale and that order was appealable under Section 8, Partition Act. The original order being open to appeal any order passed by the appellate Court should be held open to second appeal unless there is anything in law to prevent it. The order passed in this matter is a decree and has been appealed from as such. Under the Code of Civil Procedure a second appeal is allowed against a decree if the other conditions mentioned therein are fulfilled. We hold that the second appeal is competent.

4. Now we come to the merits of the case-It has been argued on behalf of the respondents that as the respondents have not brought a suit for partition Section 4 does not apply in their case. Section 4 says that 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, etc. The appellant contends that though the respondents did not bring a suit yet having applied for a share in the dwelling house they should be treated as having sued for partition of the dwelling house.

5. Section 44, T.P. Act, excludes the right of a stranger purchaser of a share in a dwelling house to joint possession. As has been observed in Kshirode Chunder Ghosal v. Saroda Prasad Mitra [1910] 12 C.L.J. 525 Section 4, Partition Act, is a logical sequel of or corollary to Section 44, T.P. Act. The latter Act denies the right of joint possession to a stranger purchaser who is left only with the right to sue for partition. It was felt that the partition of a dweling house, specially of small dimensions would divide it into unsuitable parcels and may in some cases introduce undesirable neighbours. The Partition Act 1893 accordingly came to the rescue of the members of an undivided family and gave them the right to purchase the shares obtained by strangers to the family. If effect is given to the respondents' contention the result' will defeat the object of the legislature to secure indivisibility of a dwelling house. It is possible that two persons outside the family buy two shares of two members of the family and one of them brings a suit for partition making the other a defendant and if his right to purchase the share of the dwelling house fails on any account the stranger defendant may yet be given a share in the dwelling house because he does not happen to be a plaintiff in the suit. This is certainly not what the legislature intended and we must try to put a reasonable construction on the acts of the legislature. This matter came up for consideration in the Bombay High Court in Khanderao Dattatraya v. Balkrishna Mahadev A.I.R. 1922 Bom. There the plaintiff a stranger to the family brought a suit for partition of a dwelling house making defendant 3 another stranger cosharer a defendant. Defendant 2 claimed to purchase the shares of the plaintiff and of defendant 3 and his application was allowed.

6. It does not appear from the report if defendant 3 appeared in the suit and claimed a share in the dwelling house as has been done in the present case by the respondents. But he appealed against the order of the lower appellate Court giving permission to defendant 2 to buy him up. The learned Chief Justice held that as defendant 3 cannot be said to be the person who has sued for partition defendant 2 should not be permitted to buy his share. Upon the particular facts of the case the decision seems to be unexceptionable. The learned Judge's view was based upon the fact that defendant 2 having been allowed to purchase the plaintiff's share, if he does so there is an end of the suit and the question with regard to the purchase of share of defendant 3 will not arise. But if defendant 3 wants to have the partition he will be relegated to the position of a plaintiff and his act will then attract the operation of Section 4, Partition Act. That decision does not meet the difficulty that arises in this case for two reasons. In the first place it seems to be the opinion of the Bombay High Court that an application under Section 4, Partition Act should be made before a preliminary decree is passed whereas this Court has held : see Pran Krishna Bhandari v. Keshah Chandra Roy (1918) 45 Cal. 873 that such an application can be made at any stage of the suit, even in the appellate Court. In the second place, in the case before us the suit has not been dismissed and cannot be dismissed because the plaintiff had been allowed partition of the lands other than the dwelling house and there is a preliminary decree that a partition should be made of the joint properties. The effect of the decree when it becomes final will be that a commissioner will be appointed with instructions given him according to form No. 10 of Schedule 1, Civil P.C. with power to divide all the properties including the dwelling house according to the shares of the parties. If the appellant or defendant 10 had made an application under the Partition Act and bought up the plaintiffs the present question would never have arisen But the preliminary decree directs partition of the joint properties and there having been no appeal against it, -it is binding between the parties.

7. As has been observed above the plaintiffs' prayer for a share in the dwelling house on partition was disallowed by the trial Court and he was instead given a share in the land other than the dwelling house. The respondents applied for a saham in the dwelling house and it will not be stretching too much the language of the law to treat the respondents as plaintiffs within the meaning of Section 4, Partition Act. This view is supported by the well-known principle that a party in a partition suit whether a plaintiff or a defendant is at the same time a plaintiff as well as a defendant. This dual capacity of a party in a partition suit does not preclude even a defendant who claims a share in the dwelling house from being treated as plaintiff for the purposes of Section 4, Partition Act. By their application of 5th December 1921, the respondents claimed a share in the dwelling house and they should be treated as suing for partition of the dwelling house.

8. The difficulty in this case may be solved by having resort to a course which seems reasonable. In the final decree which is to be passed in this case a. direction may be given that the respondents' share in the joint properties may be allotted to them out of the lands other than the dwelling house ; and if it is not entirely covered by such allotment the members of the undivided family may be directed to compensate them for deficiency. The result of these considerations is that the trial Court may adopt any of these two courses. It may either allow detendant 9 to purchase the share of the respondents or direct the commissioner when passing the final decree to allot to the respondents a share out of the lands other than the dwelling house. This appeal is accordingly allowed. The decree of the lower appellate Court is set aside. The appellant will be entitled to her costs in this Court and in the Courts below.


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