Calcutta High Court (Appellete Side)
Bijoy Krishna Das vs Nidhi Krishna Das on 7 December, 2018
Author: Sahidullah Munshi
Bench: Sahidullah Munshi
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
BEFORE:
The Hon'ble Justice SAHIDULLAH MUNSHI
S.A. No.326 of 1987
BIJOY KRISHNA DAS
... Appellant
- Versus-
NIDHI KRISHNA DAS
... Respondent
Mr. Rabindranath Mahato, Mr. Aritra Shankar Ray ... For the Appellant Mr. Hiranmoy Bhattacharya, Mr. N.K. Das, Mr. Srimanta Dutta, Mr. Manish Kumar Das ... For the Respondent.
Heard on : 10.05.2018, 12.06.2018, 27.09.2018 Judgment on : December 7, 2018.
Sahidullah Munshi, J.:-
This second appeal by the defendant is against the judgment and decree dated 30th August 1985 passed by the learned Additional District Judge, 1st Court, Medinipur in Title Appeal No. 304 of 1984 affirming those dated 28th May 1984 passed by the learned Munsif, 1st Court at Tamluk in Title Suit No. 126 of 1981. The Second Appeal was admitted on 5th May 1987 at the time of admission. It was neither indicated as to what are the grounds containing question of law on which the appeal would be heard, nor was there any formulation of substantial question of law involved in this appeal. Accordingly, when this appeal was taken up for hearing by this court on 12th June 2018 the only substantial question of law which was formulated is as follows. "Whether the courts below substantial erred in law in holding that in the facts and circumstances of the case under Section 44 of the Transfer of Property Act has been rightly applied or not?.
The short background of the case filed by the plaintiff is that suit plot No. 1483 and non suit plot No.1470 and 1471 comprises undivided family dwelling house. One Iswar Prasad and his niece Janaki Mayee Dasi having equal share in the said bastu block which was recorded accordingly in the C.S. Record-of-Rights only in the possessory column of the C.S. Record-of-Rights. Two suit plots namely, Plot No. 1483 and 1484 were erroneously shown to be in the exclusive possession of Iswar Das while the other two non suit plots namely, plot no. 1470 and 1471 were shown in the exclusive possession of Janaki Mayee Dasi. Despite such erroneous entry in the C.S. Record-of-Right both Iswar and Janaki had been possessing the said four plots jointly as their undivided family dwelling house. Janaki Mayee Das transferred her half share in the undivided family dwelling house in favour of his son Nidhi Krishna Das, the plaintiff herein by a deed of gift dated 29th September, 1951. The deed writer inadvertently mentioned only two plots that is plot nos. 1470 and 1471 instead of four plots. Iswar Das died and his share devolved upon his widow Ambika Bala Dasi. The plaintiff and Ambika Bala had joint possession over the undivided dwelling house. There was no partition between them by metes and bounds. Ambika had her dwelling house on plot no. 1483 and the plaintiff had his house on plot no.l 1471. There was a doba within the bastu block which situates on plot no. 1484. The non-suit plot No. 1470 was a dhosa land and the same all along was used as a courtyard of the undivided dwelling house. According to the plaintiff the defendant threatened to dispossess plaintiff from the suit plots on 1484 and disclosed that he had purchased the suit plots from Radha Kanta Bera and others and that is the cause for this suit. On enquiry the plaintiff came to learn that Ambika Bala made a deed in favour of Radha Kanta bera and others in 1961. Despite that deed Kamala Kanta and others never got possession of the suit plots and then could not pass any valid title to the defendant by the sale deed of 9th February, 1979. It is the specific case that the suit plots are part and parcel of the undivided dwelling house of the plaintiff and the defendant is a stranger purchaser claims joint possession over the suit plots. And if such joint possession is allowed the same will destroy the family privacy of the plaintiff. It is further case of the plaintiff that the defendant /stranger cannot posses the suit plots without regular partition by metes and bounds. Therefore, the plaintiff filed the suit for declaration that the two suit plots are part and parcel of the undivided family dwelling house and accordingly sought for permanent injunction restraining the defendant from possessing the suit plots jointly with other co-sharers including the plaintiff till regular partition by mates and bounds is made.
The suit has been contested by the defendant / Bijoy Krishna Das by filing written statement denying all material allegations and contended that plot nos.
1483 and 1484 constituted a separate bastu block which exclusively belonged to one Iswar Das whereas plot No. 1470 and 1471 constituted a distinct and separate bastu block belonging to Janaki Moyee Dasi, the predecessor-in-interest of the plaintiff. According to the defendant, these two bastu blocks were correctly recorded in the C.S. Record-of-Rights separately in the names of Iswar Das and Janaki Mayee Dasi in the R.S Record-of-Rights those were corrected in the name of the plaintiff and Ambika Bala. The further case of the defendant is that while in exclusive possession of the two plots namely plot nos. 1483 and 1484 Ambika Bala sold the said two plots to Radha Kanta Bera and others by a registered Kobala dated 3rd June, 1961. According to the defendant, there was a registered partition among the four brothers of Radha Kanta Bera and by virtue of the said partition all four brothers of Radha Kanta Bera got the suit plots. They constructed a hut over there and began to possess it. While in possession of the two suit plots, Radha Kanta Bera and his brothers sold them to the defendant by a registered Kobala dated 9th February 1979. Since purchase the defendant began to possess the suit plots to the exclusion of others. It is alleged by the defendant that suit plot nos. 1483 and 1484 comprised in separate bastu blocks and neither the plaintiff nor his predecessors had any possession over the said two plots. The defendant's further case is that the plaintiff wanted to purchase the suit plots at a very low price and having failed in his attempt he filed this suit to harass the defendant on fictitious cause of action. According to the defendant the suit is liable to be dismissed with costs.
Upon considering the pleadings of the plaintiff and the defendants the learned Trial Court framed the following issues:
1. Is the shit maintainable in its present from and in law?
2. Is the suit barred by limitation?
3. Is the suit barred u/s 34 of the specific Relief Act?
4. Whether the bastu block of the plaintiff differs from the bastu block of the defendant?
5. Is the disputed land part and parcel of the undivided family dwelling house and whether the defendant a stranger to the suit holding as alleged?
6. Is the plaintiff entitled to get a decree as prayed for?
7. To what other relief, if any is the plaintiff entitled?
In this case first Appellate Court affirmed the decision of the Trial Court. The moot question arises in this appeal firstly, "Whether was there any partition between the co-sharers of the suit properties prior to the disputed transfer? and secondly, "Whether the said four plots were within the purview of dwelling house belonging to an undivided family? In respect of both these questions the trial court as well as the first Appellate Court held on the basis of C.S. and R.S. Record of Right being Exhibit - 1 and 1A that there was no such partition. During C.S. R-O-R Iswar Das , Janaki Mayee Dasi had 8 annas share in the four disputed plots and during preparation of R.S. Record-of-Rights Ambika Bala Dasi and Nidhi Krishna Das had 8 annas shares each in the suit plots by the deed of gift (Exhibit-2), the plaintiff acquired right title interest and possession from his mother Smt. Janaki Bala. Both the learned court below held that there is no mention in the deed that those properties were held in ejmali (joint possession). In the written statement it is also not disputed by the defendant that any partition mutually or otherwise took place among the co-sharers by the suit and non-suit plots. It is settled law that interest in the Record-of-Rights has got only presumptive value and those presumptions can be rebutted. The defendant solely relies on the interest in the Record-of-Rights that his 50% share had been recorded into two plots, therefore, he is the owner of those two plots and on the basis of such interest it should be presumed that the properties were partitioned. Therefore, the concurrent finding made by the learned Courts below that the defendant could not establish that his share in the land had been partitioned by metes and bounds among the co-sharers if not question arises whether his status in the land is that of a co-sharer or a stranger or he has got an independent right over the suit lands and whether the dwelling house did not belong to an undivided family.
On Consideration of the evidence on record both the learned Courts below also held that plot nos. 1470, 1471, 1483 and 1484 constituted a compact bastu block and there was no partition by metes and bounds in between the co- sharers. Nidhi Krishna, the plaintiff and Amibka Bala the predecessor of the defendant had the undivided family dwelling house comprised in plot no. 1470, 1471, 1483 and 1484. Ambika Bala sold 16 decimals of land from Plot no. 1483 and 1484 to Radha Kanta Bera by a registered deed of sale dated 05.06.1961 (Exhibit-B). Radha Kanta and others are strangers to the said family dwelling house. Radha Kanta and his brothers again sold the said 16 decimals of the undivided dwelling house to defendant by four registered sale deed dated 09.02.71 Exhibit B(1) to Exhibit- B(4). Therefore, there can be no dispute that the defendant is a stranger and more particularly that he still remains as a stranger predecessor to the said undivided family. Both the courts below arrived at a concurrent finding that the suit is well maintainable in view of the fact that the plaintiff is a member of the undivided family qua-dwelling house and the suit for declaration and injunction has been filed against the stranger purchaser who claimed to have entered into the possession. According to the courts below it transpired from the evidence on record that Ambika Bala sold 16 decimals of land in plot nos. 1483 and 1484 to Radha Kanta and Others by a deed dated 05.06.1961 (Exhibit-B) and that the house of Amibika Bala on Plot no. 1483 collapsed and after sale of the said two plots to Radha Kanta she left for her daughter's house and that Radha Kanta constructed a hut on the said land five years after purchase and that he never resided in that hut. From the evidence of DW-2 Radha Kanta it further appeared that he and his brothers sold the said 16 decimals of land of plot nos. 1483 and 1484 to the defendant by aforesaid four sale deeds dated 09.02.79 Exhibit- B(1) to Exhibit-B(4). It further appears that the defendant after purchase pulled down the hut of Radha Kanta and built a house there. This fact had been admitted by PW-2 Ambika Bala during cross- examination.
Against this concurrent finding and the judgment of affirmation the learned Courts below, the present appellant has filed the appeal which was admitted and at the time of hearing the substantial question of law, as pointed out earlier, has been framed. Therefore, restricting myself to the said substantial question of law I have to give my finding in this second appeal.
Mr. Mahato learned Advocate appearing for the appellant has argued before this court that not only once there had been two successive transfer of a portion of the suit property which has been claimed to be an undivided dwelling house by the plaintiff. According to Mr. Mahato because of such transfer and particularly the fact that the plaintiff or his predecessor-in-interest claiming to be co-sharers of the alleged undivided dwelling house never challenged such transfers to stranger the defendant has forfeited his right to claim the property as an undivided dwelling house. The defendant/appellant has also argued that since the plaintiff did not exercise his right under Section 44 of the Transfer of Property Act when Ambika Bala sold her share to Radha Kanta in 1961 he is now debarred from exercising his right on subsequent occasion. According to Mr. Mahato, claim of undivided dwelling house cannot be maintained at his juncture and therefore, the suit should have been dismissed and his appeal should be allowed. Mr. Mahato submitted that the concurrent finding of the Courts below by which they disbelieved the fact of partition among the co-sharers although the suit plots were shown in separate possession of the plaintiff and defendants. The learned Courts below in this regard held that although the plaintiff and the predecessors of the defendant were owners of 50% of their sharers in those lands but the record of right did not reflect actual state of affairs and the actual share of the lands. Therefore, simply because the lands were recorded separately, the learned Courts below held, "this cannot be a ground to hold that the suit lands were partitioned between the co-sharers by metes and bounds". In support of his such submission Mr. Mahato relied on a decision in Abdul Wahab Khan -Vs.- Tilok Dhari Lal and Ors., reported in 32 CWN page 170. In the cited decision it appeared the lands were demarcatedly shown in separate holdings but in the instant case holdings were not separated. Only in the possessory column possession of the parties were reflected and simply on the basis of the inference column with regard to possession it cannot be said that the property belonged to a party in respect of the particular plot where the possession has been shown. It is the settled principle of law that Record-of-Rights is only the presumption of possession not title. Therefore, the learned Courts below committed no illegality in disbelieving the factum of partition on the basis of the Record-of-Rights. Mr. Mahato next referred to a decision in the case of Manik Lal Singh -Vs.- Gouri Shankar Shah reported in 1968 (Cal) 245. The fact of the case as it appears, the plaintiff instituted a suit for partition claiming one half share in the disputed property. Defendant filed a petition under Section 4 of the Partition Act and applied for a relief under that section on the ground that the property was a dwelling house and it belong to an undivided family and it has been transferred to a person who is not a member of such family. The said application under Section 4 was allowed by the Trial Court against which there was an appeal and the appeal was dismissed. Question arose as to whether whole of the property was dwelling house or not and whether portion which has been in use and occupation of the tenant and is separated distinct portion which has been used for the purpose of the residence of the members of the family. In the referred decision it has been held by the court that "a dwelling house means a house where the members of the family reside or used to reside and it contains all that they used for their convenient enjoyment of the house in question. Hence, garage would be included within the dwelling house when it was so used by the members of the family." The ratio decided in this case is not applicable on the facts of the present case. Mr. Mahato tried to emphasize that since the suit property has not been used by the members of the family it has lost his character of undivided dwelling house. The ratio in referred decision is not applicable in the present case.
Next decision has been relied on by Mr. Mahato is in the case of Narashimaha Murthy - Vs.- Smt. Susheelabai & Ors. reported in (1996) 3 SCC 644 in the said decision the only question which was raised is whether the dwelling house is partible by the heirs of the deceased including the daughters. The decision is based on the interpretation of Section 23 of the Hindu Succession Act, 1956 which is a special provision in respect of dwelling houses and claimed for partition thereto by a female heir. The decision is on April 1996 whereas Section 23 has been repealed by Hindu Succession (Amendment) Act, 2005 with effect from 09th September, 2005. However, relying on this decision Mr. Mahato tried to argue that a house does not become dwelling house until some person dwells in it. The decision also does not help Mr. Mahato's Case. The interpretations and expressions whatever has been used that has been used in the context of Section 23 of the Hindu Succession Act since the word 'dwelling house' has not been defined by the Hindu Succession Act. Court tried to interpret what a dwelling house should mean. In another decision in the case of Nil Kamal Bhattacharjya And Anr. - Vs.- Kamakshya Charan Bhattacharjya reported in 1928 (Cal) 539 referred to by Mr. Mahato it has been held that the expression undivided family as used in Section 4 of the Partition Act has been explained in a series of cases and it has been held that it is the ownership of the dwelling house and not its actual occupation which brings the operation of this section into play. The object of the Section is to prevent a transferee of a member of the family who is an outsider from forcing his way into a dwelling house in which other members of the transferor's family have a right to live. Therefore, this decision also does not come to the aid of Mr. Mahato's case. Trying to show that the defendants being completely outsiders cannot be considered to be members of the family after the transfer is made. According to Mr. Mahato after the transfer is made by one co-sharer to some other stranger the character changes. This is totally on a different aspect where the Court was considering the case where a pre-emption can be sought for under Section 4 of the Partition Act. Court held on interpretation of Section 4 of Partition Act that co-sharers can ask for pre- emption only if the stranger purchaser choose for partition. The fact of the case is also distinguishable and the ratio decided therein has got no manner of application in this present case. On the question whether in the second appeal this Court can interfere even in case of a concurrent finding of fact. Law is settled that even if finding of facts are concurrent by both the courts below a second appeal can be entertained if substantial question of law is available. Therefore, there is no doubt about it that the second appeal is to be heard on the substantial question of law. Referring to the decision cited in the case of Vishwanath Agrawal - Vs.- Sarla Vishwanath Agrawal reported in 2012 (7) SCC 288 Mr. Mahato has sought to impress upon the Court that even if concurrent finding has been arrived at by the learned Courts below court should consider the questions raised in the appeal. I say only the substantial question of law can be gone into by this Court not otherwise. In the present case the facts are more or less admitted. Evidence and counter evidence led by the parties have been considered by the Courts and arrived at a finding that the suit properties were never partitioned and that the properties comprised in the house is a dwelling house. The question that is important to be considered in this case is whether by successive transfer a dwelling house can loose its character or not. Mr. Bhattacharya appearing for the respondent has relied on the following judgments:
1) Lal Bihari Samanta -Vs. - Gourhari Dawn, reported in ILR (2) (Cal) 263.
2) Dorab Cawasji Warden -Vs.- Coomi Sorab Warden and Ors., reported in AIR) 1990 SC 867.
In the case of Lal Bihari Samanta (Supra) question arose whether one can file a suit for injunction restraining a defendant /stranger from exercising any right of joint possession in respect of an undivided share of a dwelling house. In the said case the principal defendant no.1 is a stranger to the suit property which constitutes the undivided dwelling house. It was the defence of the defendant no.1 that suit was not maintainable as there was a partition of the dwelling house by metes and bounds and that, in any event, the defendant no.1 had a right of easement in respect of the particular plot. The Court of the first instance decreed the plaintiff's suit but the Appellate Court modified the decree for injunction. The Appellate Court held that injunction should stand in respect of the Southern and Western bank of the tank but it should be dissolved in respect of the Northern and Eastern banks and the defendant should be entitled to exercise joint possession in respect of Northern and Eastern banks but he will not be permitted to use any ghat on the Southern and Western banks of the tank. In the second appeal this Court held, "the language of the second paragraph of Section 44 suggests that the transferee of the share of the dwelling house has no title to joint possession or other common or part enjoyment of the house. It is true that it takes away the right of the transferee to ask for joint possession but, at the same time, it seems to me that it does create a right in favour of the other co-owners of the dwelling house who was affected by the sale. Mr. Jana has relied upon the decision in the case of Sujit Kumar Biswas -Vs.- Iswar Chandra Nandi which lays down that the principle underlying Section 44 is that it is inequitable to permit a stranger to include himself upon the privacy of the joint Hindu family residence. If that be so, the co-sharers of the joint Hindu family residence, who are affected by the sale to the stranger, have been given a right under this Section to ask for an injunction restraining the stranger purchaser from exercising any act of joint possession in respect of the joint family residence. I do not think that the language of Section 53 A of and the language of Section 44 of the Transfer of Property Act are analogous. The second point raised by Mr. Jana should accordingly be overruled."
The next decision relied on by Mr. Bhattacharya in the case of Dorab Cawasji Warden (supra) to argue that the right to get an order of injunction against the stranger cannot be denied only on the ground that the stranger took possession of the property. Mr. Bhattacharya relied on paragraph 21, 22, 23, 24, 25, 26, 27, and 28 of the said report. Those paragraphs are set out below:-
"21. We may respectfully state that this is a correct statement of the law. There could be no doubt that the ratio of the decisions rendered under section 4 of the Partition Act equally apply to the interpretation of the second paragraph of section 44 as the provisions are complementary to each other and the terms "undivided family" and "dwelling house" have the same meaning in both the sections.
22. It is not disputed that prior to 1951 the suit dwelling house belonged to the undivided family of the appellant and his father and they were owning the same as joint tenants. The High Court has relied on a letter dated 12th March, 1951 of the appellant to his father in which the appellant had expressed a desire to retain his share separately so as to enable him to dispose of the same in a manner he chooses and also enable his heirs to succeed. In pursuance of this letter the appellant and his father executed an agreement dated 23rd of August, 1951 by which they declared that they have severed their status as joint tenants and that hence- forth they were holding the said piece of land and building as tenants in common in equal undivided half share. In the view of the High Court this conversion of joint tenancy of an undivided family into a tenancy in common of the members of that undivided family amounts to a division in the family itself with reference to the property and that, therefore, there shall be deemed to have been a partition between the appellant and his father. In support of this conclusion the High Court also relied on the further fact that subsequent to the death of the father and marriage of Sohrab the appellant's family and Sohrab's family were occupying different portions of the suit property and enjoying the same exclusively. We are afraid that some notions of coparcenary property of a Hindu joint family have been brought in which may not be quite accurate in considering section 44; but what is relevant for the purpose of these proceedings was whether the selling house belonged to an undivided family. We have already pointed out that even if the family is divided in status in the sense that they were holding the property as tenants in common but undivided qua the property that is the property had not been divided by metes and bounds it would be within the provisions section 44 of the Act.
23. We had also noticed earlier that Cawasji, the father of the appellant transferred his undivided half share in the suit property in favour of his son Sohrab under a deed dated 16-4-1982. Two questions may arise for consideration whether this transaction is covered by section 44 of the Act and whether after the transfer, the appellant's brother and the appellant can be said to be holding the property as undivided family. The transfer by the father in favour of Sohrab was a transfer in favour of a member of a family as Sohrab was living with them. Sohrab attained the age of 18 only on 25th December, 1951 and as seen from the other documents he was living with his father and brother till 1968 when he got married. It is only after he was married the appellant and Sohrab were occupying different portions of the suit property and having different mess. In the absence of a document evidencing partition of the suit house by metes and bounds and on the documentary evidence showing that the property is held by the appellant and his brother in equal undivided shares, we are of the view that the plaintiff appellant has shown a prima facie case that the dwelling house belonged to an undivided family consisting of himself and his brother.
24. The two brothers, therefore, shall be deemed to be holding the property as members of an undivided family and in the absence of the partition by metes and bounds qua this property they shall be deemed to have been holding the dwelling house as an undivided family. Prima facie, there- fore, the transfer by defendants 1 to 3 would come within the mischief of second paragraph of section 44 of the Act.
25. The next question for consideration is whether irreparable injury would be caused to the appellant which could not be compensated in terms of money and whether the balance of convenience is in favour of the appellant. While section 44 does not give a transferee of a dwelling house belonging to an undivided family a right to joint possession and confer a corresponding right on the other members of the family to deny the right to joint possession to a stranger transferee, section 4 of the Partition Act gives a right to a member of the family who has not transferred his share to purchase the transferee's share on a value to be fixed in accordance with law when the transferee filed a suit for partition. Both these are valuable rights to the members of the undivided family whatever may be the object or purpose for which they were conferred on such members. As we have pointed out in some cases it is stated that the right to joint possession is denied to a transferee in order to prevent a transferee who is an outsider from forcing his way into a dwelling house in which the other members of his transferee's family have a right to live. In some other cases giving joint possession was considered to be illegal and the only right of the stranger purchaser is to sue for partition. All these considerations in our opinion would go only to show that denying an injunction against a transferee in such cases would prima facie cause irreparable injury to the other members of the family.
26. Mr. Sorabjee the learned counsel for the appellant brought to our notice a number of circumstances which go to show that the fourth respondent was fully aware of the limited and restrictive title of respondents 1, 2 and 3 and the bar for joint possession provided in the second paragraph of section 44of the Transfer of Property Act and having purchased with such full knowledge tried to overreach the Court by keeping the whole transaction secret and taking possession of the property purchased before the appellant could get legal redress from the Court. Apart from the fact that the various recitals in the agreement to sell dated 21.12.1986 and the sale deed 16.4.1987 executed by respondents 1 to 3 in favour of the fourth respondent clearly show that the fourth respondent was fully aware of the provisions of section 44 of the Act and that he had purchased the property with the full knowledge of the rights of the other members of the family taking, a complete risk. Clause 6 of the agreement also specifically provided that: "In case pending the completion of this sale any suit be filed by the said co-owner Dorab or other person against the Vendors, or any one or more of them, and an injunction (not being an ad interim injunction) is obtained restraining the Vendors from selling or disposing of the said property, then the Vendors shall have the option to keep this sale in abeyance or to cancel and rescind this agreement. In the latter case, the earnest money will be returned and the Vendors shall transfer their right, title and interest in the said Bangalow property to the purchaser or his nominee ... "
27. This provision in the agreement clearly show that the fourth respondent knew that respondents 1 to 3 have only a limited right to transfer their undivided one half share to a stranger purchaser and they contemplated litigation in this regard. The said sale was itself hurriedly executed in a hush-hush manner keeping the entire transaction secret from the appellant. The purchasers were also inducted in the premises in a manner which clearly suggests that the respondents were attempting to forestall the situation and to gain an undue advantage in a hurried and clandestine manner defeating the appellant's attempt to go to court for appropriate relief. The suit itself was filed on 18th April, 1987 within two days of the sale without any delay. On that very day the appellant obtained an interim ex parte order in the injunction application but when it was sought to be executed it was reported that the 4th respondent had already taken possession and in view of that the interim order was granted by bracketing the words "remaining in possession" without giving an effect to it pending further consideration of the interim application. By consent of parties a Commissioner was appointed on 22.4.1987 itself. The report of the Commissioner showed that not all the articles of Vendors have been removed and the moveables of the purchasers were also only in the process of being brought into the house. These facts showed the anxiety of the fourth respondent to complete the taking of possession before any order could be obtained by the appellant from the Court. The learned counsel also referred to the affidavit filed by the first respondent wherein she has still claimed that she is residing in the suit property and the affidavit filed by the fourth respondent in the suit as if he is residing somewhere else and not in the suit property. The learned counsel also referred to some telephone directories, telephone numbers and addresses given therein which also show that the fourth respondent is residing and having an office in some other places also other then the suit premises. These evidences go to show that the purchaser has occupied the disputed property merely for the purpose of establishing his claim and he did not vacate his earlier permanent residence. On the other hand the appellant had to leave from the portion of the house where he was living as it was not possible for him to reside there with stranger. The respondents in such circumstances cannot be permitted to take advantage of their own acts and defeat the claim of the appellant in the suit by saying that old cause of action under section 44 of the Transfer of Property Act no longer survived in view of their taking possession. In such circum- stances it is but just and necessary that a direction should go to the respondents to undo what they have done with knowledge of the appellant's rights to compel the purchaser or to deny joint possession.
28. These facts in our view clearly establish that not only a refusal to grant an interim mandatory injunction will do irreparable injury to the appellant but also balance of convenience is in favour of the appellant fox, the grant of such injunction. In the result we allow the appeal, set aside the judgment of the High Court and restore that of the trial court with costs in this appeal."
To resolve the dispute in the instant second appeal whether the decree passed by the learned Courts below can be justified in the context of Section 44 of the Transfer of Property Act or Section 4 of the Partition Act. Section 44 of the Transfer of Property Act has been introduced by the legislature in order to protect the privacy of the members of a joint family qua the dwelling house. Section 44 of Transfer of Property Act, 1882 is set out below:-
"44. Transfer by one co-owner.--Where one of two or more co- owners of immoveable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting, at the date of the transfer, the share or interest so transferred.
Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house."
Section 44 confers on the transferee the right of joint possession or partition to the extent enjoyed by the transferor would apply to transferees of all kinds including mortgagees and lessees. Keeping in mind the principle of Section 4 of the Partition Act, however, has been introduced by the legislature to provide a preferential right to a co-owner. Section 4 of Partition Act, 1893 is set out below :-
"4. Partition suit by transferee of share in dwelling house.--
(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.
(2) If in any case described in sub-section (1) two or more members of the family being such shareholders severally undertake to buy such share, the court shall follow the procedure prescribed by sub-section (2) of the last foregoing section."
The word 'family' has been used both in second paragraph of Section 44 of the Transfer of Property Act, 1882 and in Section 4 of the Partition Act, 1893. The word 'family' includes a group of persons related in blood, who live in one house, or under one head or management. It is not restricted to a body of persons who can trace their descent from a common ancestor. It is also not necessary to constitute an undivided family for the purposes of Section 4 of the Partition Act that the members of the family should constantly reside in the dwelling house; nor is it necessary that they should be joint in mess.
The expression 'dwelling house' has been used both in Section 2 of Partition Act, 1893 and Section 44 of the Transfer of Property Act, 1882. The expression 'dwelling house' includes not only structure or building used for dwelling, but also adjacent building, cartilages, garden, courtyard, orchard and all that is necessary for the convenient occupation of the house. The purport of Section 44 is very clear in a case where the transferee of a share of a dwelling house belonging to an undivided family is not a member of the family. The transferee when in effect is a stranger cannot be deemed to entitle to joint possession or other common or part enjoyment of the house. The object of the second paragraph is to avoid serious breaches of peace which may be caused by an attempt by the purchaser to take by force joint possession with the other members of the family. The object of both Section 4(1) of the partition Act and the Section 44 of the T.P. Act is to keep the stranger away, who may have purchased the undivided share of some co-owner of an immovable property and as far as dwelling houses are concerned to make it possible for the co-sharers, who has not sold his share, to buy up the stranger purchaser. The whole object is to provide for peaceful enjoyment of the property and to secure privacy. Similar is the situation in respect under the Hindu Succession Act, 1956, Section 23 thereof imposes restriction on a female heir to claim portion of a dwelling house wholly occupied by the members of the Hindu intestate. Consequently, the transferee of a female heir cannot claim partition until the male heir or heirs of the intestate chooses or choose to divide his or their respective share or shares in the dwelling house. The provision of second paragraph of Section 44 is of negative character. On proof of a sufficient defence the Court will not forcibly put a stranger transferee in joint possession with the members of the joint family.
Under the Hindu Law a coparcener cannot bring a suit for partial partition; he must bring a suit for partition of the whole family property. Section 44 of the Transfer of Property Act, 1882 gives to the purchaser of a coparcener's share a right to bring a suit for partition of the whole family property (as is allowed by the Hindu Law) and not a right to sue for partial partition for allotment of his portion alone. He can take the share when partition subject to all the liabilities on it in the hands of his vendor.
An 'undivided family' means simply a family not divided qua the dwelling house and has not divided it. It does not mean Hindu joint family or even joint family. The members of the family may have partitioned all their joint properties 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. This character of the house will remain so long as the house is not completely alienated to strangers or the house is not divided. As has been held by our Court in Boto Krishna Ghosh -Vs. - Akhoy Kumar Ghosh, reported in AIR 1950 Cal 111, as rightly pointed out by Mr. Bhattacharya that successive transfer by stranger cannot destroy the character of jointness of the family dwelling house and to restrain the interference of such a stranger purchaser a preventive measure is always permissible by way of grant of injunction and the principles laid down in a decision of Dorab Cawasji Warden (supra) squarely applies in the present case, although, the same arose from an interlocutory order.
Since the appeal was admitted only on the substantial question of law whether the Courts below substantially erred in law by holding that in the facts and circumstances of the case Section 44 of the Transfer of Property Act has been rightly applied or not, in my considered view, no error of law has been committed by the learned Courts below in not unsettling the settled position of law that a stranger is not at all be permitted to cause threat to the privacy of a dwelling house by virtue of his purchase whether at the first instance or at the second instance through one of the co-sharers of the said dwelling house.
On a cumulative consideration of the findings arrived at by the learned Courts below and the submissions made before this Court, I am of the view that the phrase 'dwelling house' belonging to an undivided family has to be considered strictly on the pleading in the suit and the evidence led by the parties on the basis thereof. In my view, there cannot be any proposition that a stranger can be allowed to possess portion of the dwelling house with other members of the family. Section 44 of the Transfer of Property Act provides that the transferee of a share of a dwelling house, if he or she is not a member of that family, gets no right of joint possession or common enjoyment of the dwelling house. In this case, both the Courts concurrently found that the property never partitioned earlier between the co-sharers and the transferee purchaser. Section 44 adequately protects the family members against any intrusion by an outsider into a dwelling house. The only manner in which an outsider can get possession is to sue for possession and claim separation of his share. In that event, however, Section 4 of the Partition Act comes into play. Except for Section 4 of the Partition Act there is no other law which provides a right to a stranger purchaser of a portion of dwelling house to enjoy possession of such dwelling house with other co-sharers or family members. Therefore, it emerges that the stranger purchaser of a share of a dwelling house must sue for partition under Section 4 of the Partition Act and in the event of such suit for partition the co-sharers or the members of the family can opt for pre-emption. The provision of law has abundantly made it clear that there should be initiation of proceedings or making of a claim to partition by the stranger purchaser.
It is also pointed out by Mr. Bhattacharya that the instant appeal was filed in 1987 whereas the respondent/plaintiff was to be in possession over the suit property in execution of the decree in Title Execution case No. 29 of 1984. The respondent herein got delivery of the possession of the suit on 12.01.1986. The learned Executing Court, by an order dated 17.02.1986, was pleased to deliver possession accordingly. This submission has been made by Mr. Bhattacharya contending, inter alia, that by virtue of the said fact that the decree has already been executed and the interest of the defendant has become infructuous.
In view of the discussion hereinbefore made the contention of the appellant fails. It also cannot be accepted that by virtue of the Record-of-Rights the suit property was partitioned. The family dwelling house has not lost its character as a dwelling house by virtue of the recording of stranger purchaser's name in respect of the plot in the Record-of-Rights.
The judgment and decree passed by the learned Courts below need not call for any interference by this Court and, accordingly, those are affirmed. Appeal stands dismissed. There will, however, be no order as to costs.
Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned advocates for the respective parties upon compliance of all usual formalities.
(Sahidullah Munshi, J.)