Orissa High Court
Keshaba Charan Nayak And Another vs Biswanath Swain And Others on 1 November, 2017
Equivalent citations: AIR 2018 ORISSA 44, (2018) 181 ALLINDCAS 927 (ORI)
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
S.A. No. 286 of 1986
From the judgment and decree dated 25.07.1986 and 01.08.1986
respectively passed by Shri A.B. Das, learned 2nd Additional District
Judge, Cuttack in T.A. No. 103 of 1982 affirming the judgment and
decree dated 13.08.1982 and 19.08.1982 respectively passed by
Mr. P.N. Patnaik, learned Additional Sub-Judge, Cuttack in T.S. No. 161
of 1977.
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Keshaba Charan Nayak & another .... Appellants
Versus
Biswanath Swain and others .... Respondents
For Appellants ... Mr. D.P. Mohanty, Adv.
For Respondents ... None.
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of hearing: 25.10.2017 Date of Judgment: 01.11.2017
Dr. A.K.Rath, J Defendant nos.2 and 3 are the appellants against an
affirming judgment.
02. Respondent nos.1 and 2 as plaintiffs instituted T.S. No. 161
of 1977 in the court of the learned Additional Sub-Judge, Cuttack for
partition along with a prayer under Sec. 4 of the Partition Act. The case
of the plaintiffs is that Kartika Swain had two sons, namely Bhikari and
Lokanath, defendant no.1. The plaintiffs and defendant no.4 are the
sons of Bhikari. Bhikari died 32 years back. The Schedule-A property is
the ancestral joint family properties of the parties. The Schedule-B
2
property has been acquired out of the joint family funds. There was no
partition between the parties by metes and bounds. While matter stood
thus, Bansidhar, youngest son-in-law of Lokanath-defendant no.1,
taking advantage of his old age, blindness and illiteracy had managed
to obtain a sale deed on 02.05.1977 in favour of defendant nos. 2 and 3
in respect of lot no.2 of Schedule-B without consideration. The recitals
of sale deed were not read over and explained to defendant no.1.
03. Defendant nos.2 and 3 filed joint written statement denying
the assertions made in the plaint. The specific case of the defendants is
that there was an amicable partition of the suit properties between the
parties. Defendant no.1 purchased Lot no.2 of Schedule-B property
from the recorded owners by means of a registered sale deed dated
23.05.1951. The same was exclusive property of defendant no.1. He sold the said properties to defendant nos.2 and 3 by means of a sale deed dated 02.05.1977 for a valid consideration and delivered possession thereof. They are in possession of the said properties. They are not strangers to the family.
04. Stemming on the pleadings of the parties, learned trial court struck eleven issues. Parties led evidence. The learned trial court came to hold that Schedule-A and B properties are the joint family properties. There was no previous partition of the properties. Lot no.2 of Schedule-B is homestead. Defendant nos.2 and 3 are strangers to the family. They are bona fide purchasers for value. The sale deed, Ext.A is a genuine document. The plaintiffs and defendant no.4 are entitled to repurchase the property. Held so, it decreed the suit. Felt aggrieved, defendant nos.2 and 3 filed T.A. No. 103 of 1982 before the learned 2nd Additional District Judge, Cuttack. Contention raised by the appellants that they are sister's son of Lokanath, defendant no.1 and 3 not strangers to the family was negatived. The appeal was eventually dismissed.
05. The appeal was admitted on the following substantial question of law:-
"Whether the appellants being sister's sons of deceased defendant no.1, Lokanath can be treated as strangers to the family for the purpose of Sec.4 of the Partition Act ?"
06. Heard Mr. D.P. Mohanty, learned counsel for the appellants. None appeared for the respondents.
07. Mr. Mohanty, learned counsel for the appellants submitted that the courts below fell into patent error of law in allowing the prayer of the plaintiffs under Sec.4 of the Partition Act. According to Mr. Mohanty, when a stranger purchaser files a suit for partition, then only the relief under Sec.4 of the Partition Act is available to the co-sharers. Elaborating the submission, he submitted that the suit was filed by co- sharers for partition and relief under Sec.4 of the Partition Act. At the behest of the co-sharers, Sec.4 of the Partition Act cannot be pressed into service. He relied upon the decisions of the apex court in the cases of Ghantesher Ghosh v. Madan Mohan Ghosh and others, AIR 1997 SC 471, Babulal v. Habibnoor Khan (Dead) by L.Rs. and others, AIR 2000 SC 2684 and Gautam Paul v. Debi Rani Paul and others, AIR 2001 SC 61.
08. Mr. Mohanty, learned counsel further contended that a Bench of this Court in the case of Prahallad Ch. Mohanty and another v. Surendra Nath Mohanty and others, 2008(I) OLR-863 took a contrary view. The decision is contrary to the decision of the apex Court in the case of Ghantesher Ghosh (supra).
409. In Alekha Mantri vs. Jagabandhu Mantri and others, AIR 1971 Orissa 127, this Court held that Sec.4 of the Partition Act would also be applicable where the suit for partition was brought by a member of the undivided family against the stranger transferee and it is not necessary that the latter should have filed the suit.
10. There were divergent views of different High Courts including this Court in the case of Alekha Mantri (supra) with regard to scope and ambit of Sec. 4 of the Partition Act. The same has been set at rest by the apex Court in the case of Ghantesher Ghosh (supra). The apex Court held thus:-
"A mere look at the aforesaid provision shows that for its applicability at any stage of the proceedings between the contesting parties, the following conditions must be satisfied:
(1) A co-owner having undivided share in the family dwelling house should effect transfer of his undivided interest therein;
(2) The transferee of such undivided interest of the co-owner should be an outsider or stranger to the family;
(3) Such transferee must sue for partition and separate possession of the undivided share transferred to him by the concerned co-owner;
(4) As against such a claim of the stranger transferee, any member of the family having undivided share in the dwelling house should put forward his claim of pre-emption by undertaking to buy out the share of such transferee; and (5) While accepting such a claim for pre-emption by the existing co-owner of the dwelling house belonging to the undivided family, the court should make a valuation of the transferred share belonging to the stranger transferee and make the claimant co-owner pay the value of the share of the transferee so as to enable the claimant co-owner to purchase by way of pre-emption the said transferred share of the stranger transferee in the dwelling house belonging to the undivided family so that the stranger transferee can have no more claim left for partition and separate possession of his 5 share in the dwelling house and accordingly can be effectively denied entry in any part of such family dwelling house".
11. In Babulal v Habibnoor Khan (Dead) by L.Rs. and others, AIR 2000 SC 2684, the apex Court taking a cue from Ghantesher Ghosh (supra) held that one of the basic conditions for applicability of Sec. 4 as laid down by the aforesaid decision and also as expressly mentioned in the Section is that the stranger/transferee must sue for partition and separate possession of the undivided share transferred to him by the co-owner concerned. Before Sec. 4 of the Partition Act can be pressed in service by any of the other co-owners of the dwelling house, it has to be shown that the occasion had arisen for him to move under Sec.4 of the Act because of the stranger transferee himself moving for partition and separate possession of the share of the other co-owner which he would have purchased. It was further held that if the ratio of Alekha Mantri (supra) is held to take the view that a stranger purchaser who does not move for partition of joint property against the remaining co- owners either as a plaintiff or even as a defendant in the partition suit claiming to be as good as the plaintiff nor even as a successor of the decree holder seeks execution of partition decree, can still be subjected to Sec.4 of the Partition Act proceedings, then the said view would directly conflict with the decision of this Court in Ghantesher Ghosh's case (supra) and to that extent it must be treated to be overruled.
12. In Gautam Paul (supra), the apex Court held that Sec. 4 of the Partition Act should be given a liberal interpretation. However, giving a liberal interpretation does not mean that the wordings of the Section and the clear interpretation thereof be ignored. The relevant wordings are "dwelling-house belonging to an undivided family". Thus it must be dwelling house belonging to an undivided family. The further requirement is that the transfer must be to a person who is not a 6 member of "such family". The words "such family" necessarily refers to the undivided family to whom the dwelling house belongs. It was further held that merely because a person is related by blood through common ancestor, does not make him a member of the family within the meaning of the term as used in Sec.4 of the Partition Act.
13. Both the courts below concurrently held that the Lot no.2 of Schedule-B property is homestead. There was no partition by metes and bounds. Merely because defendant nos.2 and 3 are related by blood through a common ancestor, does not make them a member of the family within the meaning of the term as used in Sec. 4 of the Partition Act as held by the apex court in the case of Gautam Paul (supra). The courts below fell into the patent error of law in allowing the prayer under Sec.4 of the Partition Act. They are strangers to the family. The substantial question of law is answered accordingly.
14. Learned Single Judge of this Court in Prahallad Ch. Mohanty (supra) held that in a suit filed by one of the members of the joint family for partition where the stranger purchaser has been arrayed as defendant, the plaintiff can ask for relief of repurchase of the property from the stranger purchaser. Such inference is legally acceptable as it is in consonance with the benevolent legislative scheme behind enactment of Sec.4 of the Partition Act, which is for insulating the domestic peace of members of undivided family occupying a common dwelling house from the encroachment of a stranger transferee of the share of one undivided co-owner as a stranger-outsider to the family may obviously be having different outlook and mode of life than the members of the joint family. Though decision of the apex Court in the case of Ghantesher Ghosh (supra) was drawn to the attention of the Court, but then a contrary view was taken. The observation in Prahallad Ch. Mohanty (supra) runs contrary to the decisions of the apex Court in 7 the cases of Ghantesher Ghosh and Babulal (supra). The judgment also suffers from internal inconsistencies. In view of the authoritative pronouncement of the apex Court in the case of Ghantesher Ghosh Babulal (supra), the decision is impliedly overruled.
15. A priori, the judgments and decrees of the courts below with regard to prayer under Sec.4 of the Partition Act is set aside. The appeal is allowed in part. No costs.
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DR. A.K.RATH, J.
Orissa High Court, Cuttack.
The 1st November, 2017/ Puspanjali