Yakub Khan and Others vs Mrs. Zaibunissa

S.K. Ray, J.—This appeal is by the Defendants from the reversing decision of the lower appellate Court which has decreed the Plaintiff�s suit for partition and her claim for pre-emption.

The Plaintiff is the sister of Defendants 1 and 2. The suit property is a dwelling house which belonged to their mother. Upon the death of the mother, the Plaintiff and Defendants 1 and 2 inherited the suit property. They being Mohammedans, the Plaintiff acquired 1/5th interest and Defendants 1 and 2 each acquired 2/5th interest in the suit house. Defendants 1 and 2 sold a part of the house appertaining to their share to Defendant No. 3 a stranger to the family on 20-10-1959 as per registered sale deed (Ext. A) for a consideration of Rs. 4,000/-. As soon as the Plaintiff became aware of the sale she exercised her right of preemption by exercising the two formalities, namely Talab-i-Ishabad or immediate demand and Talab-i-Ishabad or demand by invocation of witnesses. Thereafter she demanded partition of her share and right of purchase either as a pre-emptor or u/s 4 of the Partition Act (hereinafter briefly referred to as the "Act"). Her demands having gone unheeded she filed the present suit.

The Defendants contested the suit on various grounds namely that the two necessary formalities required for the exercise of the right of pre-emption had not been carried out and that in fact the dwelling house had been partitioned between Plaintiff and Defendants 1 and 2 and the Plaintiff was allotted specific share therein of which she is in possession.

The lower appellate Court found that the necessary ceremonies or Talab-i-Ishabad and Talab-i-Ishabad incidental to the exercise of the right of pre-emption had been performed. This finding though in reversal of the trial Court�s finding on that point is final and is binding in second appeal. The learned Counsel for the Appellants does not impugn it on any legal ground. Both the Courts further concurrently found that the defence case of partition by metes and bounds has not been established and that the property continued to be joint till the date of suit. The appellate Court, therefore, maintained the trial Court�s decree for partition and separate possession of Plaintiff�s 1/5th share and further decreed the Plaintiff�s claim of pre-emption by directing that she will re-purchase the interest sold to Defendant No. 3 by depositing a consideration of Rs. 4,000/-.

Only one point has been urged by the learned Counsel for the Appellants. It is this : The Plaintiff not being in occupation of the dwelling house and there being be evidence that she has any intention of occupying it in future, she is not entitled to the benefit of Section 4 of the Act merely on the ground that she is a co-owner, and that the Plaintiff having been married away is no longer to be considered to be a member of the family and, as such, is also not entitled to any relief u/s 4 of the Act. In support of this contention, the learned Counsel has relied upon the case of Bai Fatma v. Gulamnabi A.I.R 1936 Born. 197.

There is no dispute that Section 4 of the Act is confined not only to joint Hindu families or of families of other religions which happen to have adopted Hindu notion of jointness, but also equally applies to Mohammedans who are undivided in the sense with which the expression is used in Section 4 of the Act. This exactly is the view of the Bombay High Court in the decision relied upon by the learned Counsel for the Appellants. This view has also been accepted by this Court in various decisions which, it is unnecessary to cite.

The policy behind the law of pre-emption is to prevent introduction of a stranger into residental house in occupation of some of the owners, because if an outsider is introduced as a cosharer into a dwelling house, it will not only create difficulties in the common management of the house and destroy the benefits of ownership-in-common, but will lead to all kinds of complications. The further object of this law of pre-emption patently is to bring the common property eventually into the hands of one co-sharer as full owner. This object is also enshrined in Section 4 of the Act.

The right of pre-emption stands on the same footing as Section 4 of the Act, the principles underlying the Mohammedan doctrine of pre-emption and Section 4 of the Act being the same. In fact, a Division Bench of this Court was of opinion that Section 4 of the Act was presumably enacted by the Legislature to afford the benefit of law of pre-emption to the other communities in India so far as the dwelling house is concerned. See Bikal Swain v. Iswar Swain AIR 1359 Ori.

The words "undivided family" in Section 4 of the Act has also been construed to mean "undivided qua the dwelling house in question", and the word "family" in Section 4 is to be given a liberal interpretation see Sushila v. J.B. Barals AIR 1956 Ori 173.

The question that is mooted here on the authority of the Bombay decision referred to above is that a married daughter is not to be considered to be a member of the family for the purpose of enforcing the right u/s 4 of the Act. In one case of this Court Nayana Dei and Anr. v. Brundaban Barik and Ors. S.A No. 34 of 1960-D/U.7.1961, which was decided by Mr. Justice Barman (as he then was), it was held that when a daughter is married away and usually lives in her father-in-law�s place, she is not to be considered to be a member of the family and that the presumption is that a daughter after her marriage ceases to be a member of her father�s family and, therefore, is not entitled to the benefit of Section 4 of the Act. That decision further indicated that such a presumption apart from being rebuttable is not an invariable one. In that very case the learned Judge held that a widowed daughter residing in her father�s family and not receiving any maintenance from her husband�s family can be regarded as a member of the undivided family of her father for the purpose of Section 4 of the Act.

Another Single Judge of this Court in a later case Hadi Behera and Anr. v. Sadananda Behera S.A. No. 35 of 1962-D/14.11.1963, distinguished the decision of Barman, J. in the aforesaid case and held relying upon a decision of the Calcutta High Court in 12 C.L.J. 525 that in some circumstances a married daughter can be treated as a member of the undivided family qua the dwelling house. The learned Judge in another case Paluni Dei v. Rathi Mallik and Ors. 31 (1965) C.L.T. 980, held that a married daughter who at times resides in the house of her father and has not abandoned her intention to reside there must be treated as a member of the undivided family qua the dwelling house. In another Division Bench case of this Court Ahemad Khan and Ors. v. Shaik NaiJar and Anr. 1971 (I) C.W.A. US, it was held that where a son-in-law in a Mohamedan family. comes to the house of the father-in-law frequently and stays there, he can be treated as a member of the undivided family of the father-in-Law qua the dwelling house.

In this case the Plaintiff is a sharer in the dwelling house along with Defendants 1 and 2. She has asserted in paragraph 3 of her plaint that she is in joint enjoyment and possession of the dwelling and the said assertion has not been denied. The defence plea is that the dwelling house has been partitioned and the Plaintiff is in separate possession of her specific share. The theory of partition having been disbelieved by the Courts below, the Defendants 1 and 2 must be taken to have admitted the claim of joint possession of the Plaintiff in respect of the dwelling house D.W. 1 admits that in respect of the dwelling house, rent is paid jointly by the Plaintiff and Defendants 1 and 2. It is also in evidence that the Plaintiff and her brothers Defendants 1 and 2 were on good and visiting terms till sometime before the suit was filed. There is also evidence that the Plaintiff and Defendants 1 and 2 have jointly sold some other lands of their father which they inherited and appropriated the sale proceeds in accordance with their shares. The reasonable conclusion from all the aforesaid discussion of evidence is that the Plaintiff was in joint occupation of the dwelling house in question. The lower appellate Court has reached the conclusion that the Plaintiff has intention to occupy the house in future. Applying the aforesaid legal principles to this state of evidence, the reasonable conclusion is that the Plaintiff must be treated as the member of the undivided family qua the dwelling house, irrespective of the fact that she has been married away and resides with her husband somewhere in the neighbourhood of the dwelling house. Since the Plaintiff as a member of the family undertakes to buy the share of the transferees, she would be entitled to the benefit of Section 4 of the Act. Thus the only point raised by the learned Counsel for the Appellants fails.

The Plaintiff is admittedly a co-sharer of the dwelling house and : as such, is entitled to claim pre-emption under the Mohammedan law. It has also been found by the lower appellate Court that she has made the two demands required under the Mohammedan law to enforce the right of pre-emption. Thus the essential formalities for enforcement of the right of pre-emption having been gone through meticulously as required by law, the lower appellate Court was justified in awarding her a decree for pre-emption. Whether Section 4 of the Act applies or not, the Plaintiff must succeed in obtaining a decree for pre emption under the Mohammedan law. That apart as already held by me above, she is also entitled to the benefit of Section 4 of the Act being a member of the undivided family qua the dwelling house being in present occupation of it and not having relinquished her intention of occupying it in future.

In the result, therefore, the sole point canvassed having failed, and the Plaintiff being entitled to a decree for preemption otherwise under the Mohammedan law, the present appeal must fail. The appeal is accordingly dismissed with costs.