Patna High Court
Kalipada Ash And Anr. vs Tagar Bala Dasi And Ors. on 25 September, 1967
Equivalent citations: AIR1969PAT270, AIR 1969 PATNA 270
JUDGMENT H. Mahapatra, J.
1. The defendants I and 2 in a suit for partition are the appellants. One Pratap Chandra Ash had four sons; Ealipada Ash, Amulya Chandra Ash, Gopal Chandra Ash and Abinash Chandra Ash. Gopal and Abinash's son Jitendra transferred their half share in a property measuring 0.03 acre in Mouza Chirkunda bearing survey plots Nos. 1110 and 1111 under Khata No. 243 to the plaintiff on the 9th of November 1960 by a registered Instrument. On the basis of a title thus transferred to her, the transferee brought the suit for partition of her half share. The defence by the other two sons of Pratap Chandra Ash, namely, Kalipada and Amulva, who are the appellants here, was that under Section 4 of the Partition Act (Act IV of 1893), they were willing to purchase the half share belonging to the two other sons of Pratap Chandra Ash and that the plaintiff should not be given a decree for partition in respect of that on the basis of her purchase. Secondly, they also pleaded that the road frontage of this holding being only 12 feet, it was not convenient to be partitioned as prayed for by the plaintiff. Both the Courts found against the defendants and decreed the plaintiffs suit for partition of half share. Hence this second appeal by the defendants 1 and 2.
2. The finding of the Courts below that the disputed property was not a dwelling house and did not attract the application of the provisions. Section 4 of the Partition Act, was seriously challenged by learned counsel for the appellants. He urged that even according to the plaintiff's own evidence, which is borne out by the evidence adduced on behalf of the contesting defendants, the disputed house was the ancestral dwelling house of Pratap Chandra Ash, in which all his children, including the plain-tiffs vendors and the defendants, were born. The Courts below thought that as the sons of Pratap Chandra Ash bad built a new house about 30 or 33 years ago and have been living with their families in that new house for about 20 years and as they were not occupying the disputed house, they had abandoned their intention to use the disputed house as a dwelling house. The inference of abandonment of intention has been drawn by the Courts below from the two facts as stated above. Learned counsel contended that there is no evidence in support of such an inference, those two facts being insufficient and inappropriate to give rise to such an inference. I find strong force in this contention. The very admitted fact that the disputed house was the ancestral dwelling house of the family and that all the children of Pratap Chandra Ash were born in that house, establishes beyond doubt that it is a dwelling house within the meaning of Section 4 of the Partition Act. unless it is proved that the owners had abandoned their intention to use this house as a dwelling house once for all. The mere fact that they have constructed another more suitable house where they have been living is not enough to establish or even to give rise to an inference of abandonment of such an intention. The disputed house has not been let out and has not been allowed to be used in any way, but has been kept under lock and household materials, such as bed and other things, have been kept there. The story that the defendants put up during trial that some of their employees were living in that house has been discarded by the Courts below, because such story was not mentioned in their written statement filed in the suit. But all the same, keeping household materials inside that house and not allowing that house to be used for any other purpose even during the last 20 or 25 years that the family has been living in the new house, is strong circumstance against abandonment of their intention to keep this house as a dwelling house. Their new house is not very far away from this house according to evidence.
3. Learned counsel appearing for the plaintiff-respondent, however, urged that the finding arrived at by the Courts below is a finding of fact and should not be interfered with in a second appeal. Whether the house is a dwelling house or not, that may be a question of fact and a finding in that respect will be unassailable in second appeal. But having held that it was an ancestral dwelling house, if the Courts below have inferred that the parties had abandoned their intention to keep it as a dwelling house, that inference is not a pure question of fact. It can be challenged that there is no evidence to support such an Inference, and if that is found to be correct, then such inferential finding about abandonment of intention, by the parties can be Interfered with.
4. In the present case, the inference as drawn by the Courts below is based upon the two facts I have mentioned above. Mere non-occupation for some time by the members of the family will not be sufficient indication of their abandoning the intention of keeping the house as a dwelling house, more particularly where such house is admittedly an ancestral dwelling house. It has come in evidence, and has not been disputed or discarded, that when all the properties belonging to the family of the parties were divided in partition between them, this ancestral dwelling house was left undivided, because the mother of the parties did not want that house to be divided into bits. It was for that reason left undivided. This is a strong circumstance to indicate that the sanctity of the disputed house as the ancestral family dwelling house was intended to be maintained. The mother has died only two years before the deposition was taken in Court during the trial. In such circumstances. I am inclined to agree with the contention of the learned counsel for the appellants that there was no legal evidence in support of the inference as drawn by the Courts below.
5. For the plaintiff-respondent, however, it was argued that even if the disputed house is taken to be a dwelling house, it will not come within the meaning of Section 4 of the Partition Act, because it had ceased to belong to an undivided family. He explained that when there was a partition between the members of that undivided family and one property was left undivided at that time, that property remained as a property belonging to the parlies jointly, but not as a property belonging to the undivided family. Superficially speaking, this argument has some validity, but it has to be borne in mind that Section 4 of the Partition Act is not applicable only to the Hindus, but to all citizens having other faiths. In that view, undivided family cannot be taken to have been used in the sense of undivided coparcenary. The whole purpose of the provision under Section 4 Is to keep out dwelling house from the access of strangers. If the persons owning that dwelling house are willing to keep It to themselves by purchase for the same value as strangers offer or for a reasonable price that may be settled by Court. It has been held in the case of Sultan Begam v. Devi Prasad, (1908) ILR 30 All 324 that the words "undivided family" in Section 4 must be taken to mean undivided qua the dwelling house in question, and to be a family which owns the house but has not divided it. Similar view was taken in the case of Khirode Chandra v. Saroda Prasad Mitra. (1910) 7 Ind Cas 436 = 12 Cal LJ 525, A Bench of this Court in the case of Babulal Tiwari v. Hulla Mallah, AIR 1938 Pat 13 adopted the same meaning. In that view, although there had been a partition between the plaintiff's vendors and the defendants 1 and 2 in regard to other properties, yet this disputed house shall be deemed to be a house belonging to the undivided family consisting of the sons of Pratap Chandra Ash.
6. In my view. Section 4 of the Partition Act is applicable to the facts of the present case and the Courts below went wrong in not acceding to the prayer of the defendants 1 and 2 to be allowed to purchase half share according to the provisions under that section.
7. It was stressed by the learned counsel appearing for the plaintiff respondent that this second appeal is not maintainable, and as such, in spite of all the findings aforesaid, the appeal must be dismissed. His argument is that any order for sale mode by the Court under Sections 2. 3 or 4 of the Partition Act is deemed to be a decree within the meaning of Section 2 of the Code of Civil Procedure, and as such appealable (See Section 8 of the Partition Act). But an order refusing the prayer for sale as provided under Sections 2, 3 or 4 will not be appealable. To have support for this line of reasoning, learned Counsel referred to the case of Nitish Chandra v. Promode Kunar, AIR 1953 Cal 18. I am afraid, the whole argument in this respect is misconceived. What is provided in Section 8 is only in regard to an order passed in respect of sale under Sections 2, 3 or 4 of the Partition Act. If anybody wants to agitate against such order, he can take advantage of fee provisions under Section 8 and treat it as a decree. It can be concerned straight-way that an order refusing a prayer for such sale will not be appealable. But in the present case, this appeal is not directed against an order refusing to permit sale according to Section 4. A preliminary decree was passed in the partition suit and the present appeal is directed against that decree. Whatever was done prior to the passing of the preliminary decree has now merged into that decree which is under appeal, and as such the question whether Section 4 was applicable or not to the facts of the present case is a part of the preliminary decree and can be agitated in a second appeal. The case cited by learned counsel. AIR 1953 Cal 18 was in respect of an order which had been passed under the Partition Act during the proceedings of a final decree in a partition suit. The aggrieved party had come up against that order, and not against the final decree. It was in that connection that Section 8 of the Partition Act was interpreted. The contention of the learned counsel for the plaintiff respondent cannot, therefore, be accepted in the present case.
8. For the reasons given above, the preliminary decree will have to be set aside and the case is remanded to the trial Court for disposal according to law in view of what has been stated above about the application of Section 4 of the Partition Act.
9. The appeal is, accordingly, allowed and the case is remanded to the trial Court.
But in the circumstances of the case, there will be no order for costs in this Court.