Ponvel Nadar and Another vs Khursheed Begum and Others

Ratnam, J.—This civil revision petition, at the instance of plaintiffs 2 and 3 in O.J.S. No. 8017 of 1980, on the file of VIII Assistant Judge,

City Civil Court, Madras raises an interesting question u/s 4 of the Partition Act, 1893 (hereinafter referred to as ''the Act''), in the following

background of facts; The property bearing old door No.30 and new No.33, Narayana Naicken Street, Pudupet, Madras-600002, belonged to

one Khader Bee. Under a deed of settlement dated 12.1.1945, she settled that property in favour of the third respondent herein and his brother

Mohmood Basha. Respondents 1 and 2 are the wife and son of Mohmood Basha respectively. In O.S. No. 8017 of 1980, the third respondent

herein instituted a suit for partition and separate possession of a half share in the property so settled and for rendition of accounts of the mesne

profits and other reliefs. While that suit was pending, on 15.11981, the third respondent sold his undivided half share in favour of the-petitioners

herein and thereupon, the petitioners filed LA. No. 11267 of 1981 seeking permission to come on record as plaintiffs 2 and 3 in the suit and to

prosecute the further proceedings. By an order dated 22.7.1983, in I.A. No. 11267 of 1981, the petitioners were impleaded as plaintiffs 2 and 3

in the suit and on 31.10.1984, a preliminary decree for partition was also passed. While matters stood thus, respondents 1 and 2 herein filed

I.A.No.14646 of 1984 u/s 4 of the Act praying that a sale of the share of the third respondent purchased by the petitioners may be directed at a

price to be fixed by Court. In the affidavit filed in support of that application, respondents 1 and 2, after referring to the purchase of the share of

the third respondent by the petitioners, stated that it is impossible for respondents 1 and 2 and the petitioners to live in the family house and that

they are willing to purchase the share of the petitioners in the property at the valuation to be fixed by the Court. In the counter filed by the

petitioners, they contended that only after the appointment of a Commissioner in the course of the final decree proceedings, it could be ascertained

whether the property could be divided by metes and bounds or not and only thereafter when it is found that the property is not divisible, it could be

sold in auction and that respondents 1 and 2 do not have any resources or funds to purchase the share of the petitioners. It was also further

pleaded by the petitioners that the property could be divided by metes and bounds and that the application had been filed by respondents 1 and 2

only with a view to delay the proceedings and that the application was also premature, deserving dismissal.

On a consideration of the rival contentions so put forth and relying upon and applying Section 4 of the Act, the Court below held that

respondents 1 and 2 are entitled to purchase the share of the petitioners at a value to be fixed by the court and for this purpose, appointed a

commissioner for ascertaining the value of the property. It is the correctness of this order that is questioned in this civil revision petition.

Learned Counsel for the petitioners contended that respondents 1 and 2 are not entitled to invoke Section 4 of the Act as they were not in

occupation of any portion of the property, but had let portions to tenants. Reliance in this connection was also placed upon the decisions reported

in J.C. Chaterjee v. Moung Mye AIR 1940 Ran 53 and Abinash Chandra Chakravarty Vs. Sm. Kamala Devi, . On the other hand, learned

Counsel for respondents 1 and 2, referring to and relying upon Section 4 of the Act, submitted that all that is required u/s 4 of the Act is that the

property must be a dwelling-house belonging to an undivided family qua the dwelling-house in which a share had been transferred to a person, who

is not a member of such family and the transferee should have sued for partition in which case, the Court is bound, if any member of the family

being a shareholder shall undertake to buy the share of such transferee, to make a valuation of such share and direct the sale of such share to such

shareholder and that all the ingredients necessary for the passing of an order u/s 4 of the Act is fulfilled in this case.

In order to appreciate the contention so raised, it would first be necessary to refer to Section 4(1) of the Act, which runs as follows:

4(1). 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 shareholder 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 shareholder, and may give all

necessary and proper directions in that behalf.

From the Provision extracted above, it is seen that the following elements must co-exist to attract the applicability of Section 4 of the Act : (1) the

dwelling-house should belong to an undivided family; (2) a share therein should have been transferred to a person, who was not a member of such

family; and (3) the transferee should sue for partition. In this case, there is no dispute that the dwelling-house belongs to the third respondent on the

one hand and respondents 1 and 2 on the other and they constituted members of an undivided family qua that property. The expression ""dwelling-

house belonging to an undivided family"" occurring in Section 4 of the Act should be liberally, broadly and comprehensively construed and should

not be restricted in its application to the dwelling-house of a joint Hindu family, but should include house where a group of persons related by

blood live. This has been laid down in Panattil Narayanan Nair and Others Vs. Palappetti Vatakkepet Vallath Karunakaran Nair and Others, ,

after referring to the earlier decisions. In this case, there is no dispute that the property belonged to the third respondent and his brother and that

respondents 1 and 2 succeeded to the share of the brother of the third respondent and in view of the liberal interpretation to be put upon the

expression ""dwelling-house belonging to an undivided family"", as noticed earlier, it follows that one of the important requirements of Section 4 of

the Act had been fulfilled. It has also to be borne in mind that the expression ""undivided family"" occurring in Section 4 of the Act is not restricted to

mean a family joint in status, but undivided quae the property in question. It would be useful in this connection to refer to Sivaramayya v. Venkata

Subbamma AIR 1930 Mad. 561; where it has been pointed out that the expression ""undivided family"" should be construed as undivided qua the

dwelling-house in question and the family which owns the house, but has not divided it. In this case, as noticed earlier, there is no dispute that the

family which consisted of the third respondent and the deceased husband of the first respondent and the father of the second respondent, owned

the property in question and there was no division by metes and bounds quae the property. The other requirements of Section 4 of the Act have

also been fulfilled in this case in that the third respondent had sold his half share in favour of the petitioners, who were not members of the family,

and they had proceeded to sue for partition as plaintiffs 2 and 3, in the place of the third respondent, who instituted the action praying for that

relief. Thus, all the requirements of Section 4 of the Act have been fulfilled in this case. Whether physical possession of the property would also be

necessary for the purpose of maintaining an application u/s 4 of the Act may now be considered. On a careful examination of the language

employed in Section 4(1) of the Act, the emphasis is on the ownership of the dwelling-house in the undivided family and not possession, though

some decisions appear to have laid stress on that requirement having regard to the object of Section 4 of the Act. It is true that the object of

Section 4 of the Act is to prevent an intrusion by strangers into the dwelling-house of an undivided family and this would be totally frustrated if a

stranger-purchaser forces himself into the dwelling-house of an undivided family. With a view to prevent such intrusions or invasions into the

privacy of a dwelling-house belonging to an undivided family at the instance of stranger, the provisions of Section 4 of the Act have been enacted.

Presumably in this context of the object of Section 4 of the Act, the view had been expressed that the members of the family must be in actual

occupation. In this case, respondents 1 and 2, even in the plaint, have been shown to be the residents of the first-floor in the property in question.

In the preamble to the affidavit filed by respondents 1 and 2 in I.A. No. 14646 of 1984, they have stated that they are living in the property in

dispute and that has not been in any manner contradicted by the petitioners. What is significant is that the petitioners, in their counter-affidavit, have

not whispered anything at all about respondents 1 and 2 not being in occupation or their having let out portions to oilier tenants. It is seen from

paragraph 6 of the plaint that the first respondent is using a room and a hall in the property, though such user is stated to be taking advantage of the

death of the wife of the third respondent. Whatever that may be, from the available materials, it is clearly established that respondents 1 and 2 are

in occupation of portions of the property and even if the other portions referable to the half share of respondents 1 and 2 were let out by them to

tenants, that would not preclude them from claiming the benefits of Section 4 of the Act. No doubt, in J.C. Chatterjee v. Maung Mye AIR 1940

Ran 53 it was held that a house which is for the most part of the time in the occupation of tenants cannot be a dwelling-house belonging to an

undivided family. Within the meaning of Section 4 of the Act. A similar view has also been expressed in Abinash Chandra Chakravarty Vs. Sm.

Kamala Devi, . However, it is seen from Panattil Narayanan Nair and Others Vs. Palappetti Vatakkepet Vallath Karunakaran Nair and Others, ,

that it is not necessary that the members of the family should constantly reside in the dwelling-house or that they should be joint in mess and that the

fact that the dwelling-house has been blown down, either by wind or in war, will not make it any the less a dwelling-house of an undivided family

so long as the members have not abandoned it or at any rate given up the idea of using it as such. To similar effect is the decision in Satyendu

Kundu Vs. Amar Nath Ghosh and Others, , dissenting from the view expressed in J.C. Chatterjee v. Maung Mye AIR 1940 Ran 53 and Abinash

Chandra Chakravarty Vs. Sm. Kamala Devi, , and it has been held that it would suffice to attract the applicability of Section 4 of the Act, if the

abandonment of the intention to reside is not established and possession of one room used from lime to time by the married daughters is made out.

It was also pointed out that the fact that some of the owners are the married daughters who are living with their husbands away from the dwelling-

house would not by itself take the matter out of Section 4 of the Act. Again, in Bhagwati Lal and Others Vs. Bhorelal and Others, it has been laid

down that the grant of a tenancy in Telethon to a house, which is otherwise a residential house of the members of an undivided family owning it,

would not make it any the less the dwelling-house for the purpose of Section 4 of the Act. In Santosh Kr. Mitra Vs. Kalipada Das and Others, ,

interpreting Section 4 of the Act and the requirements thereof, it has been pointed out that the intention to use the house as dwelling-house is an

important criterion in determining whether a house continues to be a dwelling-house of the family or not and the fact that a part of the house or a

considerable part of it has been let out to tenants would not by itself lead to the conclusion that the house has ceased to be a family dwelling-house.

The aforesaid decisions make it clear that what is important is the intention to use the property as a dwelling-house and in the absence of reliable

and acceptable evidence establishing the abandonment of such intention, the circumstance that portions of the dwelling-house has been let out,

would not render Section 4 of the Act inapplicable. A faint attempt was also made to contend that under the settlement deed dated 12.1.1945, the

transfer was not of the family house to the third respondent and his deceased brother and, therefore, there could not have been a family dwelling-

house as contemplated u/s 4 of the Act. There are absolutely no materials whatever in support of this plea and it cannot, therefore, be

countenanced. Reference was also made by counsel for the petitioners to Section 44 of the Transfer of Property Act. But that would not in any

manner assist the petitioners. Though the transferee from a co-owner of his share of property acquires an interest in such share and also a right to

joint possession to the extent to which it is necessary to give effect to the tr ansfer and to enforce a partition, it is subject to the conditions and

liabilities affecting the share or interest transferred at the date of the transfer and in particular where the transferee of a share of a dwelling-house

belonging to an undivided family is not a member of the family, such transferee shall not be deemed to be entitled to joint possession or common

enjoyment of the house and this again recognises the principle that the family privacy in a dwelling-house ought not to be subjected to an invasion

by a transferee of a share from a co-owner, who is not a member of the family. In fact, the second part of Section 44 of the Transfer of Property

Act only recognizes the principle behind Section 4 of the Act and gives effect to it and cannot, therefore, be relied upon by the petitioners in

support of their case that the application u/s 4 of the Act by respondents 1 and 2 could not have been entertained. Thus, on a careful consideration

of the contentions urged by the petitioners, it is seen that no case is made out to interfere with the order passed by the court below on the

application taken out by respondents 1 and 2 u/s 4 of the Act. The Civil Revision Petition is, therefore, dismissed with the costs of respondents 1

and 2.