NATABAR NAIK vs GURU CHARAN SAHU

Dr.A.K.RATH, J.

Plaintiff is the appellant against a reversing judgment in a suit for permanent injunction along with a prayer under Section 4 of the Partition Act.

Case of the plaintiff is that Siba Naik, the predecessor in interest of the plaintiff, died leaving behind two sons, namely, Sindhu and Parbati. Parbati

was unheard of and met civil death. Sindhu died leaving behind two sons, namely, Nata, the plaintiff and Bata. A dwelling house stands over the suit

land. The suit land is the undivided property of the plaintiff and Bata. The same had been recorded in the name of Siba in the current settlement

record of right. The defendant threatened to enter upon the suit land on the premises that he has purchased the share of Bata. The defendant is a

stranger to the family. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra.

The defendant filed written statement stating, inter alia, that after death of Sindhu, there was an amicable partition of the joint family properties

between Nata and Bata. Both of them were living in separate mess and property. Though the suit land was recorded as Gaharabari, but it is not used

as such. The suit land is used for the purpose of raising seasonal vegetables. After partition, the suit property fell to the share of Bata. Bata alienated

A0.04 dec. of land out of A0.07 dec. to him on 18.10.1982, vide Ext.B, for a valid consideration and delivered possession. He is in possession of the

suit land.

On the inter se pleadings of the parties, learned trial court framed two issues. Learned trial court decreed the suit holding that the suit land is the

undivided property of the plaintiff and Bata. There was no partition between the plaintiff and his brother. Placing reliance on the decisions of this

Court in the case of Udayanath Sahu v. Ratnakar Bej and others, AIR 1967 Orissa 139 and Bhim Singh and another v. Ratnakar Singh and another,

1970 (1) C.W.R. 183, learned trial court restrained the defendant from entering into the suit land. Felt aggrieved, the defendant filed Title Appeal

No.27 of 1991/30 of 1966 before the learned Additional District Judge, Jajpur. An application for additional evidence was filed to exhibit the certified

copy of the sale deed executed between Nata and Bata. The certified copy of the sale deed was exhibited as Ext.D. Learned appellate court came to

hold that there was severance of joint family status between the parties. After death of Sindhu in the year 1978, Bata left the ancestral home and

stayed in the house of his father-in-law. In the year 1982, he sold the suit land to the defendant by means of a registered sale deed, Ext.B. Nata was

not a party to the said deed. In the said sale deed, it is stated that after death of father, the entire property had been divided between two brothers.

Thus, the plaintiff cannot re-agitate the matter by denying partition. Held so, it allowed the appeal.

The appeal was admitted on the following substantial questions of law:

“(1) Whether the conclusion of the lower appellate court that there was partition between the two brothers, because there was severance of joint

status, is correct ?

(2) Whether the ultimate conclusion of the lower appellate court that since there was severance of joint family status between the two brothers, the

plaintiff is not entitled to the relief under Section 4 of the Partition Act is legally acceptable ?â€​

Heard Mr.N.K.Sahu, learned Advocate along with Mr.B.Swain, learned Advocate for the appellant. None appeared for the respondent.

Mr.Sahu, learned Advocate for the appellant submitted that learned appellate court came to an erroneous conclusion that there was partition

between the plaintiff and his brother. Learned trial court, on consideration of the documentary and oral evidence on record, came to hold that there

was no partition of the suit property. He further submitted that learned appellate court failed to distinguish the severance of joint family status and

partition by metes and bounds. Ext.D was executed on 8.8.1989 i.e., four years after filing of the suit. The same indicates that there was no partition

between two brothers, when the suit was filed in the year 1985. He further submitted that the defendant is a stranger to the family.

In Alekha Mantri v. 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.

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 v. Madan Mohan Ghosh and others,

AIR 1997 SC 471. 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 coowner 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 share in the dwelling house and accordingly can be effectively denied entry in any part of such family dwelling houseâ€​.

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 coowner 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.

On an anatomy of the pleadings and evidence on record, learned appellate court held that there was partition of the properties between Nata and

Bata. After death of father, Bata left the ancestral home and stayed in the house of his father-in-law. Bata executed a registered sale deed no.1429

dated 8.8.1989 in favour of his brother Nata, Ext.D. Ext.D reveals that after death of father, the suit land was partitioned between Bata and Nata.

Thus, the conclusion is irresistible that there was a partition between two brothers in respect of the properties including the homestead and suit

schedule property.

In Udayanath Sahu (supra), this Court held that all that Section 44 of the T.P.Act says is that the transferee of a share of a dwelling house

belonging to an undivided family must not be a member of the family. Whether the family is divided or not must be judged qua the dwelling house. If

the transferee gets into possession of a share in the dwelling house, the possession becomes a joint possession and is illegal. Courts cannot

countenance or foster illegal possession. The possession of the defendant transferee in such a case becomes illegal. Plaintiffs coowners are entitled to

get a decree for eviction or even for injunction where the transferee threatens to get possession by force. The same view was reiterated in Bhim

Singh (supra). There is no quarrel over the proposition of law. As held above, there was a partition between the two brothers. The decisions are

distinguishable on facts.

In the ultimate analysis, the appeal fails and is dismissed. No costs.