Netai Das Ghose vs Haridas Das

Sankar Prasad Mitra, J.—In this appeal the principal point that arises is the construction of Section 4 of the Partition Act (Act IV of 1893). The relationship between some of the parties hereto appears from the following genealogical table:

Purno Chandra Ghose

Bholanath Bhootnath Charu Chandra

Haridas (d.) Netai Raghunath (d.)

Bimalkona Aparajita

Bijoy Ajoy Prativa Lakshmi Sebabrata Debabrata Priyabrata Banibrata

Premises No. 5A, Chaitan Sen Lane, in Calcutta was a property wholly belonging to the above family at all material times. On May 27, 1957, there was a consent decree in an ejectment suit by Haridas Ghose and others against a tenant in respect of a portion of the said property named Haridas Das for possession, but it was agreed that the date of possession would be postponed for a year. On January 5, 1959, the said Haridas Das purchased an undivided one-third share of the said premises from the heirs of Raghunath Ghose, namely, Aparajita, Sebabrata, Debabrata, Priyabrata and Banibrata at a consideration of Rs. 10,000,00. On July 13, 1961, the pleader or Haridas Das wrote to the Appellant Netai Das Ghose and his co-sharers, inter alia, that Haridas Das had become a co-sharer in respect of the said premises by virtue of a conveyance dated January 5, 1959. In this letter the said pleader also claimed certain sums for repairs to the premises as also a share of the rent. On September 3, 1962, Netai Das Ghose and others filed in this Court a Partition Suit being Suit No. 1485 of 1962 against Haridas Das. On November 17, 1962, the written statement was filed.

Then on April 15, 1964, Netai Das Ghose made an application u/s 4 of the Partition Act for purchasing the undivided one third share of Haridas Das who was a stranger to the family. On March 24, 1966, Datta, J. by an order dismissed the said application and it is against this order that the present appeal was filed. Datta J. also passed a preliminary decree for partition and appointed a Commissioner of Partition. On June 25, 1966, the memorandum of appeal herein was filed. We are told that the Commissioner of Partition has also filed his report stating that the property is incapable of partition.

At this stage it is necessary to consider the relevant provisions of the Transfer of Property Act and the Partition Act. Section 44 of the Transfer of Property Act provides that where one or 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 it 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, it the date of the transfer, the share or interest so transferred. This section provides further that where the transferee of a share of a dwelling house belonging to an undivided family is not 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.

We shall next consider Section 4 of the Partition Act which was subsequently enacted. The marginal note of this section is

Partition Suit by transferee of share in dwelling house.

The relevant portion of the section runs thus:

Where a share of a dwelling-house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition, the Court shall, if any member of the family being a share-holder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such share-holder and may give all necessary and proper directions in that behalf.

The plain meaning of the section is that when a stranger transferee sues for partition of a dwelling house the provisions of this section would apply. The marginal note also supports this construction as it clearly says that the partition suit must be by the transferee of the share. The problem that arises in this appeal is the applicability of this section to a suit in which the transferee is not the Plaintiff but a Defendant. On this point there are differences of opinion between this Court and other High Courts in India. A Full Bench of the Allahabad High Court in Sakhawat Ali Vs. Ali Husain and Others, says:

The principal question to be decided is the meaning which must be given to the words ''such transferee sues for Partition'' in Section 4. Prima facie these words imply that in order to come within the ambit of the section, the suit must be filed by the transferee and such appears to be the view of the Bombay High Court.... The object of the section is, however, to prevent the intrusion of strangers into the dwelling-house of an undivided family and it has been held by other High Courts that the section should on equitable ground be so interpreted that it may cover those cases also in which the stranger, although Defendant in the suit for partition, claims to be allotted his share, as by making such claim he may legitimately be deemed to be suing for partition. Suppose however that the transferee-Defendant makes no such claim; can the Plaintiff obtain the benefit of Section 4? In our opinion he cannot do so and we think it makes no difference whether the transferee-Defendant be in possession of the dwelling-house (or part thereof) or not.

The Allahabad High Court then goes on to say:

...In the context in which the word ''sues'' is used in Section 4(1) we do not think that the Legislature intended this word to mean also ''or is a Defendant in a suit''. In our opinion it was clearly the intention of the Legislature that the right conferred by Section 4 should accrue to the member of the undivided family only in the event of the transferee seeking to obtain partition of his share in the dwelling-house and we hold therefore that the provision of Section 4(1) will not apply to a suit for partition in which the stranger-Defendant does not himself claim the separation of his share. It may be that the construction which in our view should be placed on this sub-section will, in some instances, deprive a Plaintiff of a relief to which under a wider interpretation he would be entitled, but as has been pointed out in Muthangi Butchi Ramayya v. Gurrala Venkata Subbarao AIR 1950 Mad. 244, a decision with which we respectfully agree, the equity of the Statute cannot override its plain meaning.

It is clear that the Allahabad High Court in this Full Bench decision is of the same view as that of the Bombay and the Madras High Courts, namely that unless the stranger-transferee sues for partition or at least claims a separation of his share, Section 4 of the Partition Act does not apply. But in this Court a different view has been expressed as we shall presently see.

In Satyabhama De Vs. Jatindra Mohan Deb and Others, , the Appellant contended before a Division Bench of this Court that the Defendants Nos. 14 to 19 were strangers who had purchased shares in the dwelling house from some of the Defendants co-shares and that the Appellant should be permitted under the provisions of Section 4, Partition Act, to purchase their share in the dwelling house. This Court has held that a party in a partition suit whether a Plaintiff or a Defendant is at the same time a Plaintiff as well as a Defendant. This dual capacity of a party in a partition suit does not preclude even a Defendant who claims a share in the dwelling house from being treated as Plaintiff for the purposes of the partition suit. This Court also held that an application u/s 4 could be made at any stage of a suit, even in the appellate Court. It should be observed, however, that in this case the Plaintiff''s prayer for a share in the dwelling house on partition was disallowed by the trial Court and he was instead given a share in the land other than the dwelling house. The Respondents applied for a share in the dwelling house.

The judgment (2) was followed by Henderson, J. in Ram Dulal Acharjee v. Benode Behari Acharjya AIR 1949 Cal. 245. In this case on behalf of the Defendant No. 1 who was a stranger-purchaser it was argued that he did not actually ask for an allotment. This argument was advanced to distinguish the case from the decision in Satyabhama De Vs. Jatindra Mohan Deb and Others, , but Henderson, J. thinks that the learned Judges of the Division Bench made observations in the context of the fact that the only person appearing before them had actually asked for an allotment. In the present case, however, Henderson J. points out, the Defendant No. 1 did not file a written statement at all Henderson, J. concludes that the absence of the written statement shows that the Defendant accepted the case made in the plaint that he had a certain share and that he was entitled to an allotment. The learned Judge applied Section 4 to this case and gave appropriate direction.

The next case is the case of Abu Isa Thakur v. Dinabandhu Banik (1947) 51 C.W.N. 639. This is a judgment, of G.N. Das, J. His Lordship has said that in a suit for partition, the parties to the suit are in the position of counter-claimants and it can very well be predicated of a Defendant in a partition suit that he is suing for partition. The learned Judge has relied on the decision in Satyabhama De v. Jatindra Mohan Deb (Supra); on AIR 1937 4 (Nagpur) and on Sheodhar Prasad Singh and Others Vs. Kishun Prasad Singh and Others, . In the Calcutta and the Nagpur cases the transferees although Defendants were claiming partition and separate allotments. In the Patna case the Subordinate Judge refused the application u/s 4 on the ground that there was no undivided family and that the transferees were mere Defendants. At p. 5 of the report Davie, J. observes:

This section certainly speaks of the transferee suing for possession but the learned Advocate has argued on the authority of Satyabhama De Vs. Jatindra Mohan Deb and Others, that in partition suit each party is in the position of a Plaintiff as well as a Defendant and that therefore even if the transferee be on the record as a Defendant and the Plaintiff who has a share in the undivided property is a Plaintiff, the latter is entitled to avail himself of the provisions of the section. The contention is fully supported by the authority cited by the learned Advocate. Mr. Kamla Sahai, who appears for the contesting Respondents, has argued that Section 4 has no application because the house cannot be said to belong to an undivided family. But this contention, as I have already said, is opposed to the authorities.

From the judgment of Davie, J. it is not clear whether the transferee Defendant asserted or claimed partition and separate allotment Davie, J. has followed the decision in Satyabhama De v. Jatindra Mohan Deb (Supra) but has not noticed the fact that the transferee Defendants in the Calcutta case were actually claiming partition.

In two of the cases, therefore, on which G.N. Das, J. relied, it appears that the transferee-Defendants were actually claiming partition and separate allotment and substantially they could be held to be ''suing for partition'' having regard to the nature of a partition suit. As it is not clear from the judgment whether the transferee-Defendants before G.N. Das, J. claimed partition or not, we cannot definitely say that the learned Judge came to the conclusion that Section 4 applied even though the transferee-Defendants did not claim partition or separate allotment.

The next case to which our attention has been drawn is the decision of Mookerjee and P.N. Mitra, JJ. in Botokrishna v. Akshoy Kumar (1949) 54 C.W.N. 660. Here, also following decision in Satyabhama De v. Jatindra Mohan Deb (Supra) and Abu Isa Thakur v. Dinabandhu Banik (Supra) it has been observed that the Courts have not hesitated to put a liberal construction upon the Partition Act and to interpret its provisions in such a way as would promote and fulfil the object of this piece of legislation which is to preserve the integrity of the family dwelling house and to enable the members of the family to keep it for themselves as far as possible. But the point to be noticed is that, in this case the stranger-purchaser himself brought the suit for partition.

We now come to a later decision in Haradhone Haldar Vs. Usha Charan Karmakar and Others, . P.N. Mookerjee, J. has mentioned that in Satyabhama De v. Jatindra Mohan Deb (Supra) and Laxman v. Mt. Lahana Bai (Supra) the transferee-Defendant had applied for allotment and the decisions were rested on that ground and on the ground that it brought the Defendant-transferee technically within the phrase ''sues for partition'' but according to the learned Judge the presence or absence of this additional factor does not make any real difference and the basic reason of the two decisions was a reasonable construction, which obviously meant the wider interpretation of the section in the light of the peculiar nature of a partition suit. Learned Counsel for the Respondent has invited us to consider whether the views of P.N. Mookerjee, J. should be accepted in the context of the language used in Section 4 of the Partition Act and the marginal note thereof which can be looked into when difficulties arise in construction. We shall express our opinion a little later in this judgment. But at the moment it would be enough to point out that the transferee-Defendant before P.N. Mookerjee, J. claimed title to a moiety share of the suit properties as the Plaintiff''s sole co-sharer and asserted the right to a separate allotment for the same. P.N. Mookerjee, J. has observed that from this point of view the suit may be regarded as a transferee-Defendant''s suit for partition, thus bringing him technically also within the phrase ''and such transferee sues for partition''.

I shall now come to the latest decision on this point. It is the judgment of Sinha, J., as he then was, sitting with Sen, J. in Satyendu Kundu Vs. Amar Nath Ghosh and Others, . This Court again observes that a liberal interpretation is to be put upon the provisions in Section 4 of the Partition Act, as would promote and fulfil its object, which is to preserve the integrity of the family dwelling house and enable the members of the family to keep it for themselves as far as possible. But it appears from para. 5 at p. 53 of the judgment of Sinha, J. that it was not disputed before their Lordships that even where a suit for partition was not brought by the transferee but by a member of the joint family, the provisions of Section 4 were applicable. This decision, therefore, cannot be considered to be an authority for the propositions learned Counsel for the Respondents is urging before us.

Our attention was then drawn to Surendra Bhusan Roy v. Sanat Kumar Saha Unreported decision of Datta, J. dated 1.7.66 in Suit No. 1052 of 1964. In this subsequent judgment Datta, J. has followed the Division Bench judgments in Satyabhama De v. Jatindra Mohan Deb (Supra) and Satyendu v. Amar Nath (Supra). His Lordship says:

there can, however, be no doubt that I am bound by the Bench decisions of this Court whatever may be my personal view in the matter. Hence, notwithstanding the expression of a different view in another matter it is my duty to follow the Bench decisions....

We have to point out that in Surendra Bhusan Roy''s case Unreported decision of Datta, J. dated 1.7.66 in Suit No. 1052 of 1964 also the stranger-purchaser has pleaded in paras. 12 and 14 of his written statement as follows:

This Defendant prays for partition and division of the shares of the parties in severalty.

Save for the prayer for partition this suit is mala fide and should be dismissed with costs.

In other words, although Datta, J. was following the Bench decisions cited above, it is clear from the pleadings that the stranger-purchaser was claiming partition and separate allotment.

From a discussion of the law on this subject we, in this Court, are of the view that the principles which ought to be adhered to in dealing with applications u/s 4 of the Partition Act are as follows:

(1) Section 44 of the Transfer of Property Act, 1882, prescribed that a stranger-transferee of a dwelling house did not have the right to joint possession or other common or part enjoyment.

(2) The Partition Act of 1893 (which was enacted after the Transfer of Property Act) had to meet the situation created by the said provisions of the former Act. That is why in Section 4 of the Partition Act it is provided that when the transferee ''sues for partition'' the Court shall give an opportunity to a member of the family to purchase the transferee''s share.

(3) It is clear, therefore, that until the transferee sues for partition, Section 4 of the Partition Act cannot be applied.

(4) A party to a partition suit whether a Plaintiff or a Defendant is at the same time a Plaintiff as well as a Defendant. This dual capacity does not preclude the application of Section 4 when the stranger-transferee is a Defendant and not the Plaintiff.

(5) But before Section 4 can be attracted to a partition suit in which the stranger-transferee is a Defendant it must appear to the Court that the stranger-transferee has claimed or is claiming partition and separate allotment.

(6) The application of Section 4 to a case in which the stranger-transferee does not claim or is not claiming partition and separate allotment, is unwarranted by the language of the statute.

We have reached the above conclusions on a consideration of decided cases on the subject. Our attention has not been invited to any Bench decision of our Court in which Section 4 of the Partition Act was employed although the transferee-Defendant who was a stranger, was not seeking partition. According to us Section 4 of the Partition Act requires a fairly strict construction as it provides for what may be called rights in the nature of pre-emption or at any rate interference with legal and private rights. There are decisions of the Allahabad and Madras High Courts on the Partition Act to which reference may be made in this connection, e.g. Ilas Ahmad v. Bulaqi Chand (1917) ILR 39 All. 672 (674); L. Ram Prasad Vs. Mt. Mukandi and Another, and S.S. Subramanya Sastry Vs. Sheik Ghannu and Others, . We need not discuss these High Court judgments in details here. In Maxwell on Interpretation of Statutes, 11th ed., p. 285, it is stated that acts which establish monopolies, or confer exceptional exemptions and privileges, correlatively trenching on general rights, are subject to the principle of strict construction. In Craies on Statute Law, 6th ed., at p. 121, also if is stated that the Courts will construe with strictness statutes which entail a deprivation of common law rights.

In Secretary of State for India v. Maharaja Birendra Kishore AIR 1916 P.C. 141, the Judicial Committee was considering certain provisions of the Waste Land Claims Act, 1863, which was enacted to make special provision for the speedy adjudication of claims that may be preferred to waste lands proposed to be sold, or otherwise dealt with, on account of the Local or State Government. The Judicial Committee observes that the provisions of the Act beginning with Section 1 as to notices to be given to the Collector, advertisements, etc., clearly point to the necessity of proper intimation being given by the Government as to the proposed sale. The notice must be clear not misleading, for otherwise how is the true owner, if such exists, to realise the necessity of coming forward? The Privy Council expresses the view that the act is drastic in character and makes a great invasion on private rights. Those pleading it must, therefore, bring the matter strictly within, its provisions. I would also refer to a decision of our Supreme Court in Radhakisan Laxminarayan Toshniwal Vs. Shridhar Ramchandra Alshi and Others, . Here, the Supreme Court was dealing with a suit for pre-emption brought on the basis of a mere agreement to sell. The Supreme Court has taken the view that the suit is without any cause of action as there is no right of pre-emption in the Plaintiff which could-be enforced under the Code. The Supreme Court says that there are no equities in favour of a pre-emptor, whose sole object is to disturb a valid transaction by virtue of the rights created in him by statute. To defeat the law of pre-emption by any legitimate means is not fraud on the part of either the vendor or the vendee and a person is entitled to steer clear of the law of pre-emption by all lawful means.

These authorities seem to suggest that in cases of invasion of legal or private rights the language of the statute should receive a strict construction. Section 4 of the Partition Act puts a curb on the rights of a stranger-purchaser on a share in a dwelling house. It is true that such a provision was necessary to preserve the sanctity of a dwelling house. Our Court has gone to the extent of saying that even though the stranger-purchaser is a Defendant, Section 4 may be invoked. We do not want to depart from this principle; but we are of the view, that it should not be stretched any further. The stranger-purchaser may be a Defendant but, in our opinion, he must also ask for partition and separate allotment before the Plaintiff or any other member of the family can seek the aid of Section 4.

The next point is at what stage of the partition proceedings can the right u/s 4 be enforced. In Kshirode Chunder Ghosal v. Saroda Prosad Mitra (1910) 12 C.L.J. 525, it was held that an application u/s 4 could be made after the rights of the parties had been determined by the preliminary decree. In Pran Krishna v. Surath Chandra (1918) 22 C.W.N. 515 , it has been decided that the word ''Court'' in Section 4 is not confined to the trial Court but includes the appellate Court and the appellate Court like the trial Court is bound, upon any member of the family who is a shareholder undertaking to buy the share of the transferee to make an appropriate order in pursuance of which the steps necessary to carry out the provisions of the section may be taken either in one Court or in the other. This view was also taken in Niranka Sashi Roy and Another Vs. Swarganath Banerjee, . All these cases were decided by various Division Benches of our Court. The Allahabad High Court also in Lala Dwarka Das Vs. Godhana and Others has held that an application u/s 4 may be made at any stage of the suit. It appears, therefore, that a party entitled to make an application u/s 4, Partition Act, can move the Court at any time until the partition proceedings are fully and finally disposed of.

We have now to see whether in the case before us the Respondent Haridas Das has uptil now demanded partition and separate allotment. Mr. Salil Hazra for the Appellant pointed out to us para. 8 of the plaint in which the Plaintiffs state that in spite of requests the Defendant Haridas Das has not come to an amicable partition of the premises in suit and that such partition would be beneficial to the parties. This paragraph of the plaint has been dealt with in para. 9 of the written statement which runs thus:

With reference to paragraph 8 of the plaint the Defendant denies that the Plaintiffs or anyone of them ever made any request for partition as alleged or at all.

Mr. Hazra submits to us that the averment in the plaint that partition would be beneficial to the parties has not been specifically denied. And under Order 8, Rule 5 of the Code of Civil Procedure, this averment should be taken to have been admitted. If, therefore, the Defendant''s view is that partition is beneficial to the parties, it should be held that the Defendant is asking for partition and separate allotment.

This contention of Mr. Hazra is not without force, but our difficulty is that from the averments in the other paragraphs of the written statement (the written statement has to be taken as a whole) and the conduct of the Defendant-Respondent Haridas Das when the application u/s 4 was made and even thereafter, we cannot come to the conclusion that the Defendant-Respondent has in this suit claimed a partition and separate allotment as yet. Paras. 11 and 12 of the written statement are as follows:

(11) The Defendant disputes the legality, correctness and validity of the alleged claims of the Plaintiff.

(12) The plaint is bad as not properly signed or verified and this suit should be dismissed with costs.

We cannot ignore these averments altogether particularly in view of the subsequent events we shall now mention. The application u/s 4 was first moved before me prior to the passing of preliminary decree when I was in the Partition and Administration Court. The Defendant''s counsel submitted to me that his client was not claiming partition and separate allotment. I directed that the matter should be taken up along with the suit upon recording the Defendant''s counsel''s statement aforesaid. At the trial of the suit also, we do not find from the judgment of Datta, J. that the Defendant was seeking partition. On the contrary, the Defendant''s counsel was resisting the application u/s 4, inter alia, on the ground that the suit was not the suit by the transferee and Datta, J. has also recorded in the minutes of the Court dated March 24, 1966, that the Defendant did not press for partition. In these circumstances, it would not be proper for us to hold only by reason of the absence of specific denial of a particular statement in the plaint that the Defendant-Respondent has called for partition and separate allotment. Mr. Hazra also relied on the minutes of proceedings of a meeting held by the Commissioner of Partition on June 3, 1966. Mr. Hazra says that at this meeting the Attorney for the Defendant had asked for partition. Learned Counsel for the Respondent strongly resists this contention of Mr. Hazra. The Defendant''s counsel says that his Solicitor made certain statements in the context of a certain set of facts and against a particular background. We are not purposely mentioning in this judgment what these statements are, as we are of the view, that without going into evidence no conclusion can be properly reached. All that we say is that uptil now there is no conclusive or uncontroverted evidence before us which establishes beyond doubt that the Defendant has demanded partition. If, however, Mr. Hazra''s client is in a position to prove satisfactorily in appropriate proceedings before the learned Judge taking partition and administration matters that the Defendant has clamed partition either in the proceedings which the Commissioner of Partition conducted or elsewhere he would be at liberty to make a fresh application u/s 4 but in the present appeal we are unable to allow his application.

In the result, this appeal is dismissed. There will be no order as to costs.

Ghose, J.

I agree.