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CASE NO.:

Appeal (civil) 3660 of 2002

PETITIONER:

SRILEKHA GHOSH (ROY) & ANR.

Vs.

RESPONDENT:

PARTHA SARATHI GHOSH

DATE OF JUDGMENT: 09/07/2002

BENCH:

D.P.MOHAPATRA, SHIVARAJ V.PATIL.

JUDGMENT:

D.P.MOHAPATRA,J.

Leave granted.

One Sailen Ghosh was the original owner of the suit

property. He died on 23rd June, 1942 leaving behind his

widow Smt. Mira Ghosh, son Partha Sarathi Ghosh-who is

respondent herein and two daughters namely Smt.

Srilekha Ghosh (Roy) and Smt. Sulekha Ghosh (Mitra) who

are the appellants herein. According to the law of

succession prevailing then the respondent and his mother

became joint owners of the suit property subject to the

provision in Section 3(3) of the Hindu Woman's Right to

Property Act, 1937. After coming into force of the Hindu

Succession Act, 1956 the widow's interest became absolute

and thus the respondent and his mother became co-

sharers of the suit property each having a moity share.

The widow by a registered deed of gift dated 23.8.1968

gifted her share to the appellants. After acquiring share

in the suit property through their mother the appellants

filed a suit Title Suit No.29/70 against the respondent

seeking a decree of partition. The suit was decreed in the

preliminary form on 28.2.1972 declaring 8 annas share of

property of the defendant and 4 annas of each of the

plaintiffs. In the preliminary decree liberty was given to

the defendant to pre-empt the share of the plaintiff No.1

who was married. Subsequently plaintiff no.2 also got

married on 12 June, 1976.

Before her marriage the plaintiff no.2 had filed an

application under Section 4 of the Partition Act, 1893 (for

short 'the Act') Misc. Case No.21 of 1972 praying for pre-

emption of the share of plaintiff no.1. During pendency of

the suit plaintiff no.2 got married. Thereafter the

defendant filed an application before the trial court for an

order to purchase the share of plaintiff no.2. The prayer of

the defendant was rejected by the trial court vide order

dated 8.7.1978. However, Misc. Case No.21/72 was

disposed of by the trial court on 12th January, 1980 with a

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finding that both plaintiff no.2 and the defendant will have

the right to buy the share of plaintiff no.1. Against the

said order the defendant preferred an appeal before the

High Court which was decided by the order dated

23.4.1987. The appeal was allowed and the order passed

by the trial court was set aside holding that the defendant

alone was entitled to purchase the share of plaintiff no.1 as

after marriage the plaintiff no.2 lost the status of a

member of the undivided family. It is not in dispute that

the order was not challenged before any higher forum.

After the aforementioned decision of the High Court

the defendant filed an application under Section 4 of the

Partition Act for purchasing 1/4th share of plaintiff no.2

under the changed circumstances. The trial court

rejected the application mainly on the ground that an

application previously filed by the defendant under Section

4 of the Act had been rejected by the trial court and the

order having not been challenged had attained finality.

The defendant challenged the order in revision before the

High Court in C.O.No.3529 of 1992, which was decided by

the High Court by the order dated 19.4.1999. The High

Court allowed the Revision Petition, set aside the order of

the trial judge and allowed the application for pre-emption

filed by the defendant for purchasing the share of plaintiff

no.2. The trial court was directed to pass all further

necessary orders and directions including fixing of

valuation in terms of Section 4 of the Act. The said order

is under challenge in this appeal filed by the plaintiffs.

The core question that arises for consideration in this

appeal is whether the defendant is entitled to purchase the

share of his sister plaintiff no.2 under Section 4 of the Act.

The provision is quoted hereunder:

"4. Partition suit by transferee of share

in dwelling-house (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.

(2) If in any case described in sub-

Section (1) two or more members of the

family being such shareholders

severally undertake to buy such share,

the Court shall follow the procedure

prescribed by sub-section (2) of the last

foregoing section."

On a plain reading of the Section it is clear that there

are certain conditions for its application,such as

(1) the dwelling house must belong to

undivided family;

(2) the transfer must be made to a stranger;

(3) transferee has filed the suit for partition

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and

(4) shareholder claims and undertakes to buy

the share of the stranger.

The condition for application of the statutory

provision is that a dwelling house belonging to an

undivided family must have been transferred to a person

who is not a member of such family and such transferee

sues for partition. If this pre-condition is satisfied then if

any member of the family being a shareholder undertakes

to buy the share of such transferee the Court is to make a

valuation of such share in such manner as it thinks fit and

direct the sale of such share to such share-holder.

Coming to the case in hand it appears from the

discussions in the impugned order that the High Court has

proceeded on the assumption that a daughter on getting

married ceases to be a part of the family of her father for

the purpose of Section 4 of the Act. It is on this

assumption that the respondent made the application

under Section 4 of the Act to purchase the share of

plaintiff no.2 who had got married during pendency of the

petition filed by her under that Section for purchasing the

share of her married sister plaintiff no.1.

The question for consideration is whether for the

purpose of application of Section 4 of the Act a married

daughter can be said to be "a person who is not a member

of such family". If the question is answered in the

affirmative then the application filed by the respondent

was maintainable and could be considered on merit. If the

question is answered in the negative then Section 4 of the

Act is not applicable and the application filed by the

respondent is to be rejected as not maintainable.

The position is well settled that Section 4 of the Act

deserves a liberal construction because its very object and

purpose is to preserve the integrity of the dwelling house.

Sir Ashutosh Mukherjee in his classical exposition of the

meaning of the term 'family' in the case of Khirode

Chandra vs. Saroda Prasad, 7 Ind. Cases 436 (Cal.)

observed:

"The word "family" as used in the

Partition Act ought to be given a liberal

and comprehensive meaning, and it

does include a group of persons related

in blood, who live in one house or

under one head or management. There

is nothing in the Partition Act to

support the suggestion that the term

"family" was intended to be used in a

very narrow and restricted sense,

namely, a body of persons who trace

their descent from a common

ancestor."

Therein it was further observed :

"When regard is had to Hindu social

customs and manners, it is difficult to

hold that the term "family" is not

comprehensive enough to include

such a body of persons. Indeed, in

cases where there are no male children

in the family and the daughters alone

are entitled to the inheritance, their

husbands very often live as members of

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the family, and they with their wives

may not inappropriately be treated as

the "family" some members of which

have shares in the dwelling house."

This decision has been considered to be a leading

authority on the question in issue. The same principle has

been followed by different High Courts in Mohomed

Sulaiman Khan vs. Mt. Amir Jan AIR 1941 All 281;

Krishna Pillai v. Parukutty Ammal AIR 1952 Mad 33; Alley

Hasan vs. Toorab Hussain AIR 1958 Pat 232; and Paluni

Dei v. Rathi Mallick AIR 1965 Ori 111.

The Paluni Dei case (supra) the Orissa High Court

held that the defendant no.2 in the case though was

married and residing with her husband elsewhere. she at

times used to reside in her father's house and had not

abandoned her intention to reside there; she was related

by blood to the family of the owner; she must therefore be

treated as a member of the undivided family qua the

dwelling house of defendant 1. She being a shareholder is

entitled to buy the share of the plaintiff-transferee. The

High Court held that judgment of the Court below rejecting

her claim is contrary to law and must be set aside.

In the case of Gautam Paul vs. Debi Rani Paul and

others (2000) 8 SCC 330 this Court considered the

question of liberal interpretation to be given to the

provisions of Section 4 of the Act. This Court made the

following observations:

"Let us now consider whether the sale

to the appellant by Bibhuti Paul can be

said to be a sale to an outsider or a

stranger to the family. Undoubtedly,

Section 4 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 a 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."

XXX XXX XXX

"We are in agreement with this opinion.

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

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the house. Section 44 adequately

protects the family members in which

an outsider can get possession is to

sue for possession and claim

separation of his share. In that case

Section 4 of the Partition Act comes

into play. Except for Section 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 Section 4, is exercised the

conditions laid down therein have to be

complied with. As seen above, one of

the conditions is that the outsider

must sue for partition. Section 4 does

not provide the co-sharer a right to

pre-empt where the stranger/outsider

does nothing after purchasing the

share. In other words, Section 4 is not

giving a right to a co-sharer to pre-

empt and purchase the share sold to

an outsider anytime he /she wants.

Thus even though a liberal

interpretation may be given, the

interpretation cannot be one which

gives a right which the legislatures

clearly did not intend to confer. The

legislature was aware that in a suit for

partition the stranger/outsider, who

has purchased a share, would have to

be made a party. The legislature was

aware that in a suit for partition the

parties are interchangeable. The

legislature was aware that a partition

suit would result in a decree for

partition and in most cases a division

by metes and bounds. The legislature

was aware that on an actual division,

like all other co-sharers, the

stranger/outsider would also get

possession of his share. Yet the

legislature did not provide that the

right for pre-emption could be

exercised "in any suit for partition".

The legislature only provided for such

right when the "transferee sues for

partition". The intention of the

legislature is clear. There had to be

initiation of proceedings or the making

of a claim to partition by the

stranger/outsider. This could be by

way of initiating a proceeding for

partition or even claiming partition in

execution. However, a mere assertion

of a claim to a share without

demanding separation and possession

(by the outsider) is not enough to give

to the other co-sharer a right of pre-

emption. There is a difference

between a mere assertion that he has a

share and a claim for possession of

that share. So long as the stranger-

purchaser does not seek actual

division and possession, either in the

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suit or in execution proceedings, it

cannot be said that he has sued for

partition. The interpretation given by

Calcutta, Patna, Nagpur and Orissa

High Courts would result in nullifying

the express provisions of Section 4,

which only gives a right when the

transferee sues for partition. If that

interpretation were to be accepted then

in all cases, where there has been a

sale of a share to an outsider, a co-

sharer could simply file a suit for

partition and then claim a right to

purchase over that share. Thus even

though the outsider may have, at no

stage, asked for partition and for the

delivery of the share to him, he would

be forced to sell his share. It would

give to a co-sharer a right to pre-empt

and purchase whenever he/she so

desired by the simple expedient of filing

a suit for partition. This was not the

intent or purpose of Section 4. Thus

the view taken by Calcutta, Patna,

Nagpur and Orissa High Courts, in the

aforementioned cases, cannot be said

to be good law."

(Emphasis supplied)

In the case of Ghantesher Ghosh vs. Madan Mohan

Ghosh and others (1996) 11 SCC 446 this Court

interpreting Section 4 of the Partition Act made the

following observations :

"In order to answer this moot question,

it has to be kept in view what the

legislature intended while enacting the

Act and specially Section 4 thereof.

The legislative intent as reflected by the

Statement of Objects and Reasons, as

noted earlier, makes it clear that the

restriction imposed on a stranger

transferee of a share of one or more of

the co-owners in a dwelling house by

Section 44 of the T.P. Act is tried to be

further extended by Section 4 of the

Partition Act with a view to seeing that

such transferee washes his hands off

such a family dwelling house and gets

satisfied with the proper valuation of

his share which will be paid to him by

the pre-empting co-sharer or co-

sharers, as the case may be. This right

of pre-emption available to other co-

owners under Section 4 is obviously in

further fructification of the restriction

on such a transferee as imposed by

Section 44 of the T.P. Act."

This Court in the case of Babu Lal vs. Habibnoor

Khan (dead) by Lrs. And ors. 2000 (5) SCC 662 considering

the applicability of Section 4 of the Act observed:

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"Therefore, one of the basic conditions

for applicability of Section 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. It is, of course, true that

in the said decision it was observed

that even though the stranger-

transferee of such undivided interest

moves an execution application for

separating his share by metes and

bounds it would be treated to be an

application for suing for partition and

it is not necessary that a separate suit

should be filed by such stranger-

transferee. All the same, however,

before Section 4 of the Act can be

pressed into 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 Section 4

of the Act because of the stranger-

transferee himself moving for partition

and separate possession of the share of

the other co-owner which he would

have purchased. This condition is

totally lacking in the present case. To

recapitulate, Respondent 1 decree-

holder himself, after getting the final

decree, had moved an application

under Section 4 of the Act. The

appellant, who was a stranger

purchaser, had not filed any

application for separating his share

from the dwelling house, either at the

stage of preliminary decree or final

decree or even thereafter in execution

proceedings."

At this stage it will be relevant to notice the

provisions of Section 23 of the Hindu Succession Act and

Section 44 of the Transfer of Property Act, under which

preferential right to acquire property in certain cases

particularly in respect of the dwelling houses, is dealt with.

The said Sections are quoted hereunder:

"23. Special provisions respecting

dwelling-houses Where a Hindu

intestate has left surviving him or her

both male and female heirs specified in

Class I of the Schedule and his or her

property includes a dwelling-house

wholly occupied by members of his or

her family, then notwithstanding

anything contained in this Act, the

right of any such female heir to claim

partition of the dwelling-house shall

not arise until the male heirs choose to

divide their respective shares therein;

but the female heir shall be entitled to

a right of residence therein;

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Provided that where such female heir is

a daughter, she shall be entitled to a

right of residence in the dwelling

house only if she is unmarried or has

been deserted by or has separated from

her husband or is a widow."

Section 44 of the Transfer of Property Act reads as

follows:

"Where one of 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 in so far as 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, at the date of the transfer,

the share or interest so transferred.

Where the transferee of a share of a

dwelling house belonging to an

undivided family is not a 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."

Although the statutory provisions are not very

happily worded it is clear from Section 23 that it expressly

recognizes the right of a female heir to reside in the family

dwelling house. This is the position despite the restriction

statutorily placed on her right to claim partition of such

dwelling house.

In the case of Narashimaha Murthy vs. Susheelabai

(Smt.) & Ors, (1996) 3 SCC 644, this Court considering

the provisions of Section 23 of the Act in the light of

Section 4(1) of Partition Act and Section 44 of the Transfer

of Property Act made the following observations:

"Attention may now be invited to the

last sentence in the provision and the

proviso, for there lies the clue to get to

the heart of the matter. On first

impression the provision may appear

conflicting with the proviso but on

closer examination the conflict

disappears. A female heir's right to

claim partition of the dwelling house

does not arise until the male heirs

choose to divide their respective shares

therein, but till that happens the

female heir is entitled to the right to

reside therein. The female heir already

residing in the dwelling house has a

right to its continuance but in case she

is not residing, she has a right to

enforce her entitlement of residence in

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a court of law. The proviso makes it

amply clear that where such female

heir is a daughter, she shall be entitled

to a right of residence in the dwelling

house only if she is unmarried or has

been deserted by or has separated from

her husband or is a widow. On first

impression, it appears that when the

female heir is the daughter, she is

entitled to a right of residence in the

dwelling house so long as she suffers

from any one of the four disabilities i.e.

(1)being unmarried; (2) being a

deserted wife; (3) being a separated

wife; and (4) being a widow. It may

appear that female heirs other than the

daughter are entitled without any

qualification to a right of residence, but

the daughter only if she suffers from

any of the aforementioned disabilities.

If this be the interpretation, as some of

the commentators on the subject have

thought it to be, it would lead to a

highly unjust result for a married

granddaughter as a Class I heir may

get the right of residence in the

dwelling house, and a married

daughter may not. This incongruous

result could never have been

postulated by the legislature.

Significantly, the proviso covered the

cases of all daughters, which means all

kinds of daughters, by employment of

the words "where such female heir is a

daughter" and not "where such female

heir is the daughter". The proviso thus

is meant to cover all daughters, the

description of which has been given in

the above table by arrangement. The

word 'daughter' in the proviso is meant

to include daughter of a predeceased

son, daughter of a predeceased son of a

predeceased son and daughter of a

predeceased daughter. The right of

residence of the female heirs specified

in Class I of the Schedule, in order to

be real and enforceable, presupposes

that their entitlement cannot be

obstructed by any act of the male heirs

or rendered illusory such as in

creating third party rights therein in

favour of others or in tenanting it,

creating statutory rights against

dispossession or eviction. What is

meant to be covered in Section 23 is a

dwelling house or houses, (for the

singular would include the plural, as

the caption and the section is

suggestive to that effect) fully occupied

by the members of the intestate's

family and not a house or houses let

out to tenants, for then it or those

would not be dwelling house/houses

but merely in description as residential

houses. The section protects only a

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dwelling house, which means a house

wholly inhabited by one or more

members of the family of the intestate,

where some or all of the family

members, even if absent for some

temporary reason, have the animus

revertendi. In our considered view, a

tenanted house therefore is not a

dwelling house, in the sense in which

the word is used in Section 23.

XXX XXX XXX

The second question does not

present much difficulty. On literal

interpretation the provision refers to

male heirs in the plural and unless

they choose to divide their respective

shares in the dwelling hose, female

heirs have no right to claim partition.

In that sense there cannot be a division

even when there is a single male. It

would always be necessary to have

more than one male heir. One way to

look at it is that if there is one male

heir, the section is inapplicable, which

means that a single male heir cannot

resist female heir's claim to partition.

This would obviously bring unjust

results, an intendment least conceived

of as the underlying idea of

maintenance of status quo would go to

the winds. This does not seem to have

been desired while enacting the special

provision. It looks nebulous that if

there are two males, partition at the

instance of female heir could be

resisted, but if there is one male, it

would not. The emphasis on the

section is to preserve a dwelling house

as long as it is wholly occupied by

some or all members of the intestate's

family which includes male or males.

Understood in this manner, the

language in plural with reference to

male heirs would have to be read in

singular with the aid of the provisions

of the General Clauses Act. It would

thus read to mean that when there is a

single male heir, unless he chooses to

take out his share from the dwelling

house, the female heirs cannot claim

partition against him. It cannot be

forgotten that in the Hindu male-

oriented society, where begetting of a

son was a religious obligation, for the

fulfillment of which Hindus have even

been resorting to adoptions, it could

not be visualized that it was intended

that the single male heir should be

worse off, unless he had a supportive

second male as a Class I heir. The

provision would have to be interpreted

in such manner that it carries forward

the spirit behind it. The second

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question would thus have to be

answered in favour of the proposition

holding that where a Hindu intestate

leaves surviving him a single male heir

and one or more female heirs specified

in Class I of the Schedule, the

provisions of Section 23 keep attracted

to maintain the dwelling house

impartible as in the case of more than

one male heir, subject to the right of

re-entry and residence of the female

heirs so entitled, till such time the

single male heir chooses to separate

his share; this right of his being

personal to him, neither transferable

nor heritable."

(Emphasis supplied)

Applying the ratio in the aforementioned decided

cases to the case in hand the position that emerges is that

the last owner of the suit property left one male heir (son)

and three female heirs (widow and two daughters) who

succeeded to the suit property. The widow transferred her

interest in the suit property by gift in favour of her two

daughters, who in course of time got married; the two

daughters filed the suit for partition of the suit property

which was a family dwelling house; the partition suit was

decreed preliminary; at the stage of execution proceedings

the petition has been filed by the male heir i.e. the brother

of the plaintiffs claiming right of pre-emption to purchase

the share of one of the sisters (plaintiff no.2). In stricto

senso the provision of Section 4 of the Partition Act has no

application in the case. Neither can the plaintiffs who are

daughters be said to be strangers to the family nor is there

any material to show that they have expressed their

intention not to reside in the suit property or to transfer

their interest in the same to a person who is a stranger to

the family. It is also to be kept in mind that the plaintiffs

have acquired interest in the property by gift from their

mother. Therefore they have stepped into the shoes of their

mother. Under the circumstances the petition filed by the

defendant under Section 4 of the Partition Act was not

maintainable and was liable to be dismissed as premature.

At the same time keeping in view the object and purpose of

preserving unity of the family dwelling house for

occupation of members of the family the plaintiffs cannot

be given a right to transfer their interest in the family

dwelling house in favour of a stranger. If they decide not

to reside in the suit dwelling house and desire to transfer

their interest then they must make an offer to the

defendant and if he is willing to purchase the interest of

the sisters then he will be entitled to do so on payment of

the consideration mutually agreed or fixed by the Court.

We are persuaded to pass this Order keeping in view

the interest of all the members of the family i.e. the son

and two daughters and their family members and the

importance of preserving the unity of the family dwelling

house which is meant for occupation of successors of the

original owner, Sailen Ghosh.

We are of the view that in the context of the facts and

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circumstances of the case the High Court was not right in

granting the petition filed by the respondent under Section

4 of the Act. Accordingly the order of the High Court under

challenge is modified in the manner and to the extent

noted above and the appeal is disposed of accordingly.

There will be no order for costs.