An Analysis of Section 4 of the Partition Act, 1893: Protecting the Sanctity of Family Dwelling Houses in India

An Analysis of Section 4 of the Partition Act, 1893: Protecting the Sanctity of Family Dwelling Houses in India

Introduction

The Partition Act, 1893 (hereinafter "the Act") was enacted to amend the law relating to partition in India, primarily to address practical difficulties encountered in the physical division of properties.[10] While the Act provides mechanisms for the sale of property in lieu of division under certain circumstances (Sections 2 and 3),[13], [16] Section 4 carves out a special provision concerning dwelling houses belonging to an undivided family. This provision grants a pre-emptive right to members of an undivided family to buy out the share of a stranger-transferee who has acquired an interest in the family dwelling house and sues for partition. Section 4 is deeply intertwined with, and often described as an extension of, the principles enshrined in the second paragraph of Section 44 of the Transfer of Property Act, 1882 (hereinafter "TPA").[11], [12], [17] This article aims to critically analyze the scope, application, and judicial interpretation of Section 4 of the Partition Act, 1893, drawing upon key statutory provisions and landmark case law.

Historical Context and Legislative Intent of Section 4

The Statement of Objects and Reasons for the Partition Act, 1893, illuminates the legislative intent behind Section 4:

“It is also proposed in the Bill to give the Court the power of compelling a stranger who has acquired by purchase a share in a family dwelling house when he seeks for a partition, to sell his share to the members of the family who are the owners of the rest of the house at a valuation to be determined by the Court. This provision is only an extension of the privilege given to such shareholders by Section 44, paragraph 2 of the Transfer of Property Act, and is an application of a well-known rule which obtains among Muhammadans everywhere and by customs also among Hindus in some parts of the country.”[11], [12], [25]

The underlying objective is to preserve the peace, privacy, and integrity of the family dwelling house by preventing the intrusion of strangers.[12] It seeks to avoid the inconvenience and potential discord that might arise if a stranger were to be given joint possession of a family residence. This provision reflects a legislative concern for maintaining family harmony and preventing the fragmentation of dwelling houses that are often imbued with sentimental value beyond their mere pecuniary worth.

Essential Conditions for Invoking Section 4

For Section 4 of the Act to be successfully invoked, certain conditions must be met, as culled from the statutory language and judicial pronouncements:

  1. The property in question must be a dwelling house belonging to an undivided family.[3], [5], [24]
  2. A share in this dwelling house must have been transferred to a person who is not a member of such family (a stranger-transferee).
  3. The stranger-transferee must sue for partition of the dwelling house.[5], [9]
  4. A member of the family, being a shareholder in the dwelling house, must undertake to buy the share of the stranger-transferee.[22]
  5. The court then makes a valuation of the stranger's share.

1. Existence of a Dwelling House Belonging to an Undivided Family

The terms "dwelling house" and "undivided family" are central to the application of Section 4. A "dwelling house" implies a residential structure, not merely any property. The family need not be constantly residing in it, but it must be a house that the family treats as their own, available for their use and occupation.[3] The term "undivided family" has been interpreted broadly by the courts. It is not restricted to a Hindu joint family but encompasses any group of people related by blood, marriage, or adoption, living together in a dwelling house with some semblance of jointness or common tie.[5], [24], [26] As observed in Dorab Cawasji Warden v. Coomi Sorab Warden, the terms "undivided family" and "dwelling house" have the same meaning in both Section 44 of the TPA and Section 4 of the Partition Act.[24] The critical factor is the collective ownership and use of the house as a family dwelling.

2. Transfer of a Share to a Stranger-Purchaser

The provision applies when a co-owner transfers their share in the family dwelling house to a person who is not a member of the undivided family. This transferee is referred to as a "stranger." The mode of transfer is typically by sale, but the section uses the term "transferee," which could potentially cover other forms of transfer for consideration.

3. The "Stranger Sues for Partition" Requirement

This is perhaps the most litigated aspect of Section 4. The Supreme Court, in Gautam Paul v. Debi Rani Paul And Others, clarified that the right of a family member to pre-empt under Section 4 arises only when the stranger-transferee initiates a suit for partition.[5], [21] If the suit for partition is filed by a member of the family, and the stranger-transferee is merely a defendant, Section 4 cannot be invoked by another family member co-defendant against the stranger-transferee defendant, unless the stranger-transferee actively seeks separation of their share in that suit.[5] The court in *Gautam Paul* emphasized that "the transferee must sue for partition" to trigger the pre-emption rights.[5] However, the phrase "sues for partition" has been interpreted to include proceedings for the execution of a final decree for partition obtained by the stranger-transferee. The Supreme Court in Ghantesher Ghosh v. Madan Mohan Ghosh And Others held that an application under Section 4 is maintainable even at the stage of execution of a final decree for partition, as long as the stranger-transferee is seeking to get their share demarcated and possessed through the execution process, and the property has not yet been physically divided and the decree fully satisfied.[9], [25] This ensures that the object of Section 4 is not defeated by procedural technicalities.

4. Undertaking by a Co-sharer Member of the Family

A member of the undivided family who is also a shareholder in the dwelling house must make an application to the court and give an undertaking to purchase the share of the stranger-transferee.[22] Without such an undertaking, the court is not bound to proceed with valuation.[22] If multiple family members make such an undertaking, Section 4(2) provides that the procedure prescribed by Section 3(2) of the Act shall be followed, implying that the court may direct the sale of such share to the shareholder who offers to pay the highest price above the valuation made by the court.

Interrelation with Section 44 of the Transfer of Property Act, 1882

Section 4 of the Partition Act is intrinsically linked to Section 44 of the TPA. The second paragraph of Section 44, TPA, states:

"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."[12], [19]

This provision restricts the stranger-transferee's right to joint possession of the family dwelling house. Their only right is to sue for partition and secure their share.[19] Section 4 of the Partition Act builds upon this by providing a mechanism for the family members to buy out the stranger-transferee when such a suit for partition is initiated. The Supreme Court in Dorab Cawasji Warden v. Coomi Sorab Warden affirmed that Section 44 of the TPA and Section 4 of the Partition Act are complementary to each other.[3], [24], [27] The former restricts the stranger's right to possession, while the latter provides a means to oust the stranger completely by purchase, thereby safeguarding the family's exclusive enjoyment of their dwelling. This protective umbrella can also extend to granting interim mandatory injunctions to prevent a stranger-transferee from taking possession.[3], [24]

Valuation of the Stranger's Share

Once a family member undertakes to buy the stranger's share, Section 4(1) mandates that "the Court shall make a valuation of such share in such manner as it thinks fit." The Act does not prescribe a specific method or date for valuation under Section 4. However, guidance can be sought from general principles of valuation in partition suits. In Malati Ramchandra Raut (Mrs) And Others v. Mahadevo Vasudeo Joshi And Others, a case concerning Section 3 of the Act, the Supreme Court held that the valuation of shares should be made as on the date of the preliminary decree declaring the shares.[4] While this case pertains to Section 3, the principle of timely valuation, conducted promptly after the right to purchase accrues, is significant. The court has discretion in determining the mode of valuation, which should be fair and equitable to both the stranger-transferee and the purchasing family member.

Procedural Framework and Court's Role

The invocation of Section 4 involves a specific procedural pathway. A family member co-sharer must make an application to the court where the stranger-transferee's suit for partition is pending (or where execution is sought).[9], [15] This application must contain an undertaking to purchase the stranger's share.[22] The court then determines if the conditions for Section 4 are met. If so, it proceeds to value the share. The question of whether a plaintiff co-sharer can invoke Section 4 against a stranger-defendant was addressed in light of Gautam Paul. In Anukul Chandra Sadhukhan v. Ajit Kumar Sadhukhan And Others, the Calcutta High Court, following Gautam Paul, held that the right to pre-empt does not arise till such stranger purchaser sues for partition, implying that a plaintiff co-sharer generally cannot invoke Section 4 unless the stranger-defendant actively claims partition of their share.[21] The court plays a crucial role not only in valuation but also in ensuring that the legislative intent of protecting the family dwelling is upheld.

Limitations and Considerations

While Section 4 provides significant protection, certain limitations exist. The primary condition, as established in Gautam Paul, that the stranger must sue for partition, can be a hurdle if the stranger remains passive or if the partition suit is initiated by a family member without the stranger actively seeking separation of their share.[5] Furthermore, the Orissa High Court in Alekha Mantri v. Jagabandhu Mantri And Others, referencing an earlier view, noted a perspective that Section 4 is attracted only when there is a possibility of the undivided family continuing in the dwelling house, and not if the family members themselves wish to disrupt their undivided status.[17] This suggests that the underlying desire to maintain the family unit's character of the dwelling is relevant. A claim under Section 4 can also be subject to general procedural laws, such as the principles of res judicata or Order II Rule 2 of the Code of Civil Procedure, if not raised appropriately in prior related proceedings.[18]

Section 4 as a Form of Pre-emption: A Constitutional Perspective

Section 4 essentially confers a right of pre-emption on family members concerning their dwelling house. The constitutional validity of pre-emption laws has been scrutinized by the Supreme Court. In Bhau Ram v. Baij Nath Singh And Ors, the Court struck down pre-emption based on vicinage as an unreasonable restriction on the right to acquire, hold, and dispose of property under Article 19(1)(f) (as it then existed). However, it upheld pre-emption rights in favour of co-sharers, deeming them reasonable restrictions in the public interest, as they promote consolidation and prevent fragmentation.[1] Section 4, by allowing co-sharers in a family dwelling to buy out a stranger, aligns with this rationale of preventing inconvenience and preserving the character of family property, thereby likely satisfying the test of reasonable restriction.

Conclusion

Section 4 of the Partition Act, 1893, stands as a vital statutory safeguard for the integrity and privacy of family dwelling houses in India. It balances the right of a transferee to realize their share with the right of family members to prevent the intrusion of strangers into their homes. The judiciary, through a series of interpretations, particularly in cases like Dorab Cawasji Warden, Ghantesher Ghosh, and Gautam Paul, has clarified the scope and applicability of this provision. While the requirement that the stranger-transferee must sue for partition sets a specific trigger, the courts have generally construed Section 4 in a manner that effectuates its beneficial legislative purpose. This provision continues to play a crucial role in property law, reflecting a societal value placed on the sanctity of the family home.

References

  1. [1] Bhau Ram v. Baij Nath Singh And Ors (1962 AIR SC 1476, Supreme Court Of India, 1962)
  2. [2] Musammat Sukhi v. Ghulam Safdar Khan And Others (1922 AIR PC 11, Privy Council, 1921)
  3. [3] Dorab Cawasji Warden v. Coomi Sorab Warden And Others (1990 SCC 2 117, Supreme Court Of India, 1990)
  4. [4] Malati Ramchandra Raut (Mrs) And Others v. Mahadevo Vasudeo Joshi And Others (1991 SCC SUPP 1 321, Supreme Court Of India, 1990)
  5. [5] Gautam Paul v. Debi Rani Paul And Others (2000 SCC 8 330, Supreme Court Of India, 2000)
  6. [6] Babulal v. Habibnoor Khan (dead) by Lrs. & Others (Supreme Court Of India, 2000, as per excerpt relating to Madras High Court citation, though the case is from MP decided by SC)
  7. [7] Thomson Press (India) Limited v. Nanak Builders And Investors Private Limited And Others (2013 SCC 5 397, Supreme Court Of India, 2013)
  8. [8] Kartar Singh v. Harjinder Singh And Others (1990 SCC 3 517, Supreme Court Of India, 1990)
  9. [9] Ghantesher Ghosh v. Madan Mohan Ghosh And Others (1996 SCC 11 446, Supreme Court Of India, 1996)
  10. [10] Sathi Lakshmanan v. Mohandas (Kerala High Court, 2008)
  11. [11] Ghantesher Ghosh v. Madan Mohan Ghosh And Others (Supreme Court Of India, 1996) [Note: This is the same case as Ref 9, likely a different aspect or citation of the same judgment text]
  12. [12] Brahm Dev Narang. v. Satyajeet Narang. (Delhi High Court, 1999)
  13. [13] Antony v. Joseph & Others (Kerala High Court, 2010)
  14. [14] Anukul Chandra Sadhukhan v. Ajit Kumar Sadhukhan And Others (Calcutta High Court, 2003) [Citing Dorab Cawasji]
  15. [15] Satya Narayan Chakravarty v. Biswanath Paul (Calcutta High Court, 1968) [Note: The reference material indicates 1968, but the case summary text refers to ILR 32 Bombay 103 (Bai Hirakore v. Trikamdas) and other older cases. The date of Satya Narayan Chakravarty itself is cited as 1974 in Ref 9. Assuming 1968 refers to the decision being discussed or a typo in provided material for the case itself.]
  16. [16] Bhagwanti Lal v. Bhore Lal (Rajasthan High Court, 1974)
  17. [17] Alekha Mantri v. Jagabandhu Mantri And Others (Orissa High Court, 1970)
  18. [18] Madhab Charan Routray (Dead) His Lrs. Gasgan Bihari Routray & Ors. v. Sarat Ch. Baral & Another S (Orissa High Court, 2016)
  19. [19] Ashim Ranjan Das v. Sm. Bimla Ghosh And Others Opposite Parties. (1991 SCC ONLINE CAL 53, Calcutta High Court, 1991)
  20. [20] V. Govindaswamy Petitioner v. Mangammal And 7 Others S (2010 SCC ONLINE MAD 3337, Madras High Court, 2010)
  21. [21] Anukul Chandra Sadhukhan v. Ajit Kumar Sadhukhan And Others (2003 SCC ONLINE CAL 380, Calcutta High Court, 2003) [Same as Ref 14, different citation format]
  22. [22] Chitta Ranjan Mondal v. Bhupendranath Das And Others (1971 SCC ONLINE CAL 3, Calcutta High Court, 1971)
  23. [23] Biswanath Jena Petitioner. v. Ramesh Chandra Jena & Others Opp Parties. (1992 SCC ONLINE ORI 120, Orissa High Court, 1992)
  24. [24] Hafizulla v. Inder Kumar Jain (Madhya Pradesh High Court, 2017) [Citing Dorab Cawasji]
  25. [25] Geeta Devi … v. Om Prakash And Others … (Allahabad High Court, 2020) [Citing Ghantesher Ghosh]
  26. [26] Bedana Ghosh Dastidar And Others v. Anjali Sinha And Another (Calcutta High Court, 2022)
  27. [27] Shipra Dey v. Sandhya Dey (Calcutta High Court, 2015) [Citing Dorab Cawasji]