Calcutta High Court
Anukul Chandra Sadhukhan vs Ajit Kumar Sadhukhan And Ors. on 8 August, 2003
Equivalent citations: AIR2004CAL170, 2004(2)CHN160, AIR 2004 CALCUTTA 170, (2004) 2 CAL HN 160
JUDGMENT Prabir Kumar Samanta, J.
1. The plaintiff-appellant filed a partition suit on 16.2.1977 along with the prayer for relief under Section 4 of the Partition Act in respect of the purchase made by the defendant Nos. 1 and 2 on 25.1.1977. The plaintiff alleged that the properties described in Schedule 'Ka' and 'Kha'; of the plaint constituted their ancestral dwelling house and the defendant Nos. 1 and 2 had purchased a portion of the same by the aforesaid deed dated 15.1.1977. Since the respective shares of the parties were not in dispute, so the suit was decreed in its preliminary form on contest but the petition under Section 4 of the Partition Act as filed by the plaintiff-appellant was dismissed on merits. Such dismissal by the Trial Court was challenged in appeal. The Court of Appeal below affirmed the said order of dismissal. The present second appeal arises out of the judgment and order of dismissal of the said petition under Section 4 of the Partition Act as filed by the plaintiff-appellant. This Court for the purpose of disposal of the above appeal formulated the following substantial questions of law :
"1. Whether the co-sharer plaintiff can maintain the application under Section 4 of the Partition Act when the said co-sharer himself sues for partition.
2. Whether the judgment passed by the learned Courts below can be said to be perversed,"
2. At the outset, it may be stated that if on the first question it is held that the application by a co-sharer plaintiff in the said partition suit was not maintainable, then the 2nd question need not be answered.
3. The first question of law as formulated by this Court obviously arises in view of the recent Supreme Court decision , Gautam Paul v. Debi Rani Paul, wherein it has been held that the right to pre-empt a purchase made by stranger does not arise till such stranger purchaser sues for partition.
4. Mr. Abhijit Banerjee, learned senior advocate appearing on behalf of the plaintiff-appellant sought to distinguish the said decision upon reference to the facts of this case and Section 44 of the Transfer of Property Act. Mr. Banerjee referred to that Section 44 of the said Act which provides as under :
"44. Transfer by one co-owner.--Where one of two or more co-owners of immovable 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".
5. According to him a stranger-purchaser of a share of an undivided family dwelling house shall not be entitled to a joint possession of the same by virtue of his purchase as per the 2nd part of Section 44 of the said Act. But if such stranger-purchaser is actually in physical possession of a share of an undivided family dwelling house upon purchase by him, then he is placed in a different footing which will enable the co-sharers of the said undivided family dwelling house to seek relief under Section 4 of the Partition Act in respect of the sale made in favour of a stranger-purchaser, because the underlying purpose under Section 44 of the Transfer of Property Act is to prevent a stranger-purchaser to come into possession of an undivided family dwelling house. Such provision of Section 44 having been complemented in the provision of Section 4 of the Partition Act, the principle laid down by the Supreme Court would be applicable in a case where such stranger-purchaser is not in actual physical possession of a share in an undivided family dwelling house of the co-sharers. Because on the principle as laid down by the Supreme Court in the above decision, such stranger-purchaser if sues for partition for the purpose of getting separate possession in such undivided family dwelling house on the strength of the purchase made by him in respect of a share in such undivided family dwelling house, then an application under Section 4 would be maintainable. Therefore, the stranger-purchaser being already in possession of a portion of an undivided family dwelling house of the co-sharers the principles as laid down by the Supreme Court will have no application. In the facts and circumstances of this case the application under Section 4 of the Partition Act would therefore be very much maintainable, as the defendants are in actual physical possession of a portion of the alleged undivided family dwelling house of the plaintiff-appellant.
6. Such contention of Mr. Banerjee has no force for the reasons as stated hereunder. The Supreme Court in the case of Gautam Paul v. Debi Rani Paul, has discussed the scope of an application under Section 4 of the Partition Act, at the instance of the co-sharers in a suit filed by them in detail. The said paragraph is quoted hereunder :
"We are in agreement with this opinion. There is no law which provides that co-sharer must only sell his/her share to another co-sharer. Thus strangers/outsiders can purchase sharers even in a dwelling house. Section 44 of the Transfer of Property Act, provides that the transferee of a share of dwelling house, if he/she is not a member of that family, gets no right to joint possession or common enjoyment of the house. Section 44 adequately protects the family members against intrusion by an outsider into the 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 case 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 co-sharer to purchase the share sold to an outsider. Thus before the right of pre-emption, under Section 4, is exercised the conditions laid down therein have to be complied with. As seen above, one of the conditions is that the outsider must sue for partition, Section 4 does not provide the co-sharer a right to pre-empt where the stranger/outsider does nothing after purchasing the share. In other words, Section 4 is not giving a right to a co-sharer to pre-empt and purchase the share sold to an outsider any time he/she wants. Thus even though a liberal interpretation may be given, the interpretation cannot be one which gives a right which the legislatures clearly did not intend to confer. The legislature was aware that in a suit for partition the stranger/outsider, who has purchased a share, would have to be made a party. The legislature was aware that in a suit for partition the parties are interchangeable. The legislature was aware that a partition suit would result in a decree for partition and in most cases a division metes and bounds. The legislature was aware that on an actual division, like all other co-sharers, the stranger/ outsider would also get possession of his share. Yet the legislature did not provide that the right for pre-emption could be exercised 'in any suit for partition'. The legislature only provided for such right when the 'transferee sues for partition'. The intention of the legislature is clear. There had to be initiation of proceedings or the making of a claim to partition by the stranger/ outsider. This could be by way of initiating a proceeding for partition or even claiming partition in execution. However, a mere assertion of a claim to a share without demanding separation and possession (by the outsider) is not enough to give to the other co-sharers a right of pre-emption. There is a difference between a mere assertion that he has a share and a claiming for possession of that share. So long as the stranger-purchaser does not seek actual division and possession, either in the suit or in execution proceedings, it cannot be said that he has sued for partition. The interpretation given by Calcutta, Patna, Nagpur and Orissa High Courts would result in nullifying the express provisions of Section 4, which only given a right when the transferee sues for partition. If that interpretation were to be accepted then in all cases, where there has been a sale of a share to an outsider, a co-sharer could simply file a suit for partition and then claim a right to purchase over that share. Thus even though the outsider may have, at no stage, asked for partition and for the delivery of the share to him, he would be forced to sell his share. It would give to a co-sharer a right to pre-empt and purchase whenever he/she so desired by the simple expedient of filing a suit for partition. This was not the intent or purpose of Section 4. Thus the view taken by Calcutta, Patna, Nagpur and Orissa High Courts, in the aforementioned cases, cannot be said to be good law."
7. In a later decision , Srilekha Ghosh (Roy) and Anr. v. Partha Sarathi, the Supreme Court quoted with approval the aforesaid paragraph 23 of the said decision by supplying emphasis. In the said decision the case of Ghateswar Ghosh v. Madan Mohan Ghosh, as reported in 1996(II) SCC 446 as relied on by Mr. Banerjee was considered and upon such consideration, no different proposition was laid down than what taken in the case of Goutam Paul v. Debi Rani Paul.
8. The contention of Mr. Banerjee that since the defendant Nos. 1 and 2 are in actual physical possession of a portion of the undivided family dwelling house, the second part of Section 44 of the Transfer of Property Act, would not be applicable in the facts and circumstances of this case and the plaintiff-appellant would be entitled to maintain an application under Section 4 of the Partition Act as the defendant Nos. 1 and 2 being in possession of the same do not stand in the footing of absolute stranger-purchasers. Such contention also cannot have any force in law in view of the decision of the Supreme Court reported in AIR 1990 SC 876, Dorab Cawasji Warden v. Coomi Sorab Warden and Ors. In the said case, the appellant filed a suit against the vendors that is his brother's wife and her sons under Section 44 of the Transfer of Property Act. The appellant's brother died intestate. His widow and his two minor sons sold their undivided one and half share in the said property to the vendee. The suit was filed on the ground that the suit property was a dwelling house belonging to the undivided family, there had not been any division of the said property at any time, the plaintiff-appellant and his deceased brother were occupying different portions of the dwelling house during their life time according to their convenience. In such circumstances the vendee a stranger to the family had no right to have joint possession or common enjoyment of the property along with the plaintiff on the basis of the purchase of the undivided share. The Supreme Court held that in the absence of a document evidencing partition of the suit house by metes and bounds or documentary evidence showing that the property was held by the appellant and his brother in equal undivided shares, it could be said that the plaintiff-appellant had shown a prima facie case that the dwelling house belonged to an undivided family consisting of himself and his brother. Therefore, the transfer in favour of the vendee would come within the mischief of second paragraph of Section 44. A learned Single Judge of this Court following the above Supreme Court decision has held in the decision reported in 1991(1) CLJ 352, Ashim Ranjan Das v. Bimala Ghosh and Ors., that if the plaintiff being a member of a family having undivided dwelling house is found entitled to invoke the 2nd part of Section 44 of Transfer of Property Act, and the stranger-purchasers are liable to be restrained, then it would follow that even if the defendants have been put to possession or have come to possess jointly, then they can be kept out of possession by an order of injunction. The aforesaid decisions therefore clearly lay down that the the possession of a portion of an undivided family dwelling house by a stranger-purchaser would not make any difference even for the purpose of keeping him out from the undivided family dwelling house. On the same analogy, it can be said that Section 4 of the Partition Act which is complementary to Section 44 of the Transfer of Property Act cannot have any separate treatment for the purpose of application in compliance with the principles as laid down by the aforesaid Supreme Court decisions only because the stranger-purchaser is in possession of a portion upon purchase.
9. In all such consideration the contentions as raised on behalf of the plaintiff-appellant in respect of the question No. 1 as above cannot be entertained. The question No. 1 is therefore answered in the "negative and in favour of the respondents. It is specifically held that the application under Section 4 of the Partition Act as filed by the appellant-plaintiff in his suit for partition was not maintainable.
10. It is however made clear that if at any subsequent stage, the defendant-respondent Nos. 1 and 2 apply for partition and for separation of their shares, then the plaintiff-appellant shall be entitled to move under Section 4 of the Partition Act.
11. This appeal is accordingly dismissed.