Baman Chandra Panda vs Mayadhar Mallik (dead) through his L.Rs. and others

This appeal is by the plaintiff.

The following genealogy would show the relationship between the parties.

CHART OMITTED

This is a dispute between the father and son. The case of the plaintiff is that he is the son of defendant no.1. The suit house and other lands

originally belonged to Sanatan @ Sanu Panda. He had four sons, namely, Kinu, Kanduri, Bidyadhar and Nisakar. Nisakar died issueless. His wife

is dead. Bidyadhar died leaving behind his wife, Dura and son Baishnaba. In 1930 settlement, the lands were recorded in the name of Kinu,

Kanduri and Baishnaba. Dissertation cropped up in the family. The joint family properties were partitioned. Kinu (grandfather of the plaintiff) got 6

annas share. Kanduri and Baishnaba got 5 annas share. Kanduri died leaving behind his two daughters, namely, Benga and Champa. Kinu died

leaving behind his only son, Nilamani. Baishanba died issueless. Defendant no.1 inherited the property of Baishanba. Benga and Champa executed

a deed of relinquishment on 9.4.1940 in favour of defendant no.1. Thus defendant no.1 became owner of the entire property. He was in

possession of the property as Karta of the family. Defendant no.1 wanted to transfer some of the family properties to deprive the plaintiff of his

share. The joint family properties had not been partitioned by metes and bounds. The plaintiff has half share over the suit property. The suit

property is the homestead and bari of the plaintiff and defendant no.1. The same has not been partitioned by metes and bounds. There is a tank

over the same. Defendant no.1 sold some of the suit land to defendant nos.2, 3 and 5 by executing nominal sale deeds. Defendants 2 to 5 created

disturbances and threatened to dispossess him on 28.12.1978. Defendants 2 to 5 are not in possession of the suit property. They are strangers to

the family. With this factual scenario, he instituted the suit for permanent injunction.

Defendants 2 to 4 filed a joint written statement denying the assertions made in the plaint. According to them, the suit property is the self-

acquired property of defendant no.1. He sold the same to them. The plaintiff had no share over the suit property. He was not in possession of the

same. Defendants 2 and 3 purchased 16 dec. of suit land on 28.2.1973. They were in possession of the same. Thereafter they sold the said land to

defendant no.4 on 2.7.1977 by means of a registered sale deed. Defendant no.4 is in possession of the same. The suit land has been recorded in

the name of defendant no.4 in M.S.R.O.R.. The plaintiff instituted 1.C.C. No.291 of 1977 in the court of the learned S.D.J.M., Bhadrak. They

were acquitted. Defendant no.5 filed a separate written statement taking the similar stand as that of defendant nos.2 to 4. Defendant no.1 was set

ex parte.

Stemming on the pleadings of the parties, the learned trial court framed seven issues. On a threadbare analysis of the evidence on record and

pleadings, the learned trial court held that the plaintiff has admitted that the suit property belonged to Benga and Champa. They executed a deed of

relinquishment, vide Ext.2, in favour of defendant no.1. Same is the self-acquired property of defendant no.1. The plaintiff has no right, title and

interest over the same. The property, which was sold to defendant nos.2 and 3 under Ext.A, is a small pond. Ext.A is a registered sale deed dated

28.2.1973 executed by Nilamani Panda in favour of Mayadhar Malik and others. The plaintiff has admitted in his evidence that he has another

pond. The suit pond is not necessary for proper enjoyment of other homestead land of the plaintiff. The vendee is in possession of the suit land.

Held so, it dismissed the suit. The unsuccessful plaintiff filed S.J. Appeal No.17 of 1987-I/323 of 1987 before the learned District Judge, Bhadrak,

which was eventually dismissed. It is apt to state here that during pendency of this appeal, respondents 1, 2 and 4 died, whereafter their legal heirs

have been substituted.

The Second Appeal was admitted on 20.2.1991 on the following substantial questions of law.

Whether the courts below considered the scope and ambit of Section 44 of the Transfer of Property Act and its applicability to the facts of the

present case in its proper perspective ?

Whether the courts below have correctly considered the legal effect of transfer in favour of the stranger purchasers, having accepted that the suit

land was thrown to common hotchpot of the joint family ?

Heard Mr.Bishnu Charan Swain, learned Advocate on behalf of Mr.P.Kar, learned Senior Advocate for the appellant and Mr.Manoj Kumar

Agrawal, learned Advocate on behalf of Mr.D.P.Dhal, learned Advocate for the respondents.

Mr.Swain, learned Advocate for the appellant submitted that the suit property is the ancestral joint family property of the plaintiff and defendant

no.1. The plaintiff has eight annas share over the same. The residential house of the plaintiff and defendant no.1 is situated over undisputed plot

nos.285, 282 and 374 and the disputed plot no.373. They have their joint thrashing floor and pond therein. C.S. Plot no.373 is appurtenant to the

homestead of the plaintiff and defendant no.1. No partition has been made. A cosharer cannot transfer any property without consent of other

cosharers. The deed of relinquishment by the daughters of Kanduri in respect of their share does not change the joint character of the suit property.

He relied on the decisions of this Court in the case of Bhim Singh and another v. Ratnakar Singh and another, 1970(1) C.W.R.183 and Calcutta

High Court in the case of Lal Behari Samanta and others v. Gourhari Dawn and others, A.I.R. (39) 1952 Calcutta 253.

Per contra, Mr.Agrawal, learned Advocate for the respondents submitted that the suit property is the self-acquired property of defendant no.1.

He transferred the same to the defendants. The same is not the homestead. The pond is situated at a distance of 500 cubits away from the

homestead. The same cannot be construed as homestead so as to attract Section 44 of T.P.Act.

This Court in the case of Krushna Chandra Panigrahi Vrs. Bhagirathi Sahu and another, (S.A.No.135 of 1989 disposed of on 1.11.2017) held :

In Gautam Paul v. Debi Rani Paul and others, AIR 2001 SC 6 1, 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 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. It further held

that there is no law which provides that co-sharer must only sell his/her share to another co-sharer. Thus strangers/outsiders can purchase shares

even in a dwelling house. Section 44 of the Transfer of Property Act provides that the transferee of a share of a 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 Sec.4 of the Partition Act comes into play. Except for Sec. 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 Sec.4, is exercised the

conditions laid down therein have to be complied with.

The Calcutta High Court in the case of Khirode Chandra Ghoshal v. Saroda Prosad Mitra, Vol-7 (1910) C.L.J., 436 held that the expression

''house'' ""embraces, not merely the structure or building, but includes also adjacent buildings, curtilage, garden, courtyard, orchard and all that is

necessary for the convenient occupation of the house, but not that which is only for the personal use and convenience of the occupier."" The said

decision has been quoted with approval by this Court in the cases of Bhabani Bewa and others vs. Akshoy Kumar Das and another, Vol-21

(1955) C.L.T. 371, Jati Bewa and others v. Shyam Sundar Sahu and others, 1970 (1) C.W.R. 283 and Gangadhar Malik v. Kahnu Sethi, Vol-38

(1972) CLT 1244.

xxx xxx xxx True it is, a co-sharer cannot maintain a suit for partition and seek relief under Sec.4 of the Partition Act in view of the decisions of

the apex Court in the case of Ghantesher Ghosh vrs. Madan Mohan Ghosh and others, AIR 1997 SC 471 and Gautam Paul (supra). Till and until

the stranger transferee sues for partition and separate possession of the undivided share transferred to him by the concerned co-sharer, the other

co-sharer can maintain his possession. In view of the discussions made above, the conclusion is irresistible that a co-sharer can maintain a suit for

permanent injunction. The co-sharer is not remediless. In the case of Gangadhar Malik (supra), the plaintiff''s suit for permanent injunction was

decreed.

The plaintiff asserts that the suit property originally belonged to Benga and Champa. They executed a deed of relinquishment in favour of his

father. Both the courts concurrently held that the plaintiff has no right, title and interest over the same. Ext.A has been acted upon. The defendants

are in possession of the suit property since 1974. The pond is situated at a distance of 500 cubits away from the house of the plaintiff. The

thrashing floor and pond are not adjacent to the homestead. The same is not necessary for convenient of occupation of the house. Thus, by no

stretch of imagination, the same can be considered as homestead. The substantial questions of law are answered accordingly.

In the wake of aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed.