Legal Analysis of Dwelling House Belonging to an Undivided Family in India

The Dwelling House of an Undivided Family in Indian Law: A Comprehensive Analysis

Introduction

The concept of a "dwelling house belonging to an undivided family" holds significant socio-legal importance in Indian jurisprudence. It represents not merely a physical structure but a focal point of family life, continuity, and sentiment. Indian law, through various statutory provisions and judicial pronouncements, has sought to protect the unique character of such dwelling houses, particularly from fragmentation by stranger transferees and to regulate the rights of co-owners. This article critically examines the legal framework governing dwelling houses of undivided families, primarily focusing on Section 44 of the Transfer of Property Act, 1882, Section 4 of the Partition Act, 1893, and the principles emanating from the (now omitted) Section 23 of the Hindu Succession Act, 1956. The analysis will draw heavily upon landmark judicial decisions that have shaped the interpretation and application of these laws.

Defining "Dwelling House"

The term "dwelling house" is not exhaustively defined in the relevant statutes, leading to reliance on judicial interpretation to ascertain its scope and meaning. Courts have generally adopted a practical and context-sensitive approach.

The Orissa High Court in Bhim Singh And Another v. Ratnakar Singh And Others (Orissa High Court, 1970) provided a comprehensive understanding, stating that a "family dwelling house consists of the house itself and all necessary appurtenances required for beneficial enjoyment of the house, neighbouring homestead plots including the bari and even a tank attached to the residential house in a compact manner". The Court further noted that "even a vacant site upon which there used to be the family dwelling, but the same has been pulled down or has fallen, would continue to be dwelling house until parties have abandoned their intention to raise residential structures thereon." This indicates that the physical integrity and the intention of the parties are crucial factors.

The Calcutta High Court in Satyendu Kundu v. Amar Nath Ghosh And Others (Calcutta High Court, 1963) clarified that it is not essential for all family members to reside continuously in the dwelling house. It is sufficient if some reside there, and others reside temporarily or have not abandoned their intention of residing there. Importantly, the Court observed, "It does not matter if a part of the such dwelling house is let out to tenants or even the whole, provided that it can be shown that the owners have not given up their intention of residing therein. Whether they have such an intention or not is a question of fact".

However, the Supreme Court in Narashimaha Murthy v. Susheelabai (Smt) And Others (1996 SCC 3 644), while interpreting the erstwhile Section 23 of the Hindu Succession Act, 1956, indicated that if a dwelling house is wholly tenanted, it might lose its character as a "dwelling house" for the purposes of that section, as the primary attribute of being occupied by the family is lost. This principle was echoed in Hafizulla v. Inder Kumar Jain (Madhya Pradesh High Court, 2017), citing Janki Ammal v. PAK Natrajan (AIR 1989 Madras 99), in the context of Section 44(2) of the Transfer of Property Act, suggesting that a completely tenanted house may not qualify as a dwelling house. The Supreme Court in Narashimaha Murthy also observed that the expression "dwelling house" is referable to the dwelling house in which the intestate Hindu was living and intended for his/her children to continue as their permanent abode.

The structural unity of a building, even if occupied in different portions by family members, can also be relevant. In Shiv Narain Chaudhari v. Commissioner Of Wealth-Tax, Lucknow (Allahabad High Court, 1977), though in a wealth tax context, the court noted that contiguity, a common boundary, a common compound, and common passages contribute to the building being considered a single "house," even if different residential units exist within it or were built at different times.

Understanding "Undivided Family"

The term "undivided family" as used in Section 44 of the Transfer of Property Act and Section 4 of the Partition Act is not synonymous with a Hindu Joint Family (HUF) in the strict Mitakshara sense, though an HUF would certainly qualify. The expression has been interpreted broadly by courts to encompass various familial arrangements where members share a common dwelling.

In Paluni Dei v. Rathi Mallick And Others (Orissa High Court, 1964), interpreting Section 4 of the Partition Act, the court stated that a "dwelling house belonging to an undivided family should include a house where a group of persons, related by blood, live, and that it is not necessary that they should descend from a common ancestor, or that they should constantly reside in the dwelling house, or that they should be joint in mess so long as the members have not abandoned their intention to reside in it." This expansive definition was also accepted in Bibuni Bewa v. Padmanav Swain (AIR 1956 Orissa 105), cited in Paluni Dei.

The Calcutta High Court in Satyendu Kundu v. Amar Nath Ghosh And Others (Calcutta High Court, 1963) reiterated that the transfer of interest by some members to strangers does not, by itself, take the case out of the operation of Section 4 of the Partition Act, as long as the dwelling house is not completely alienated.

The Supreme Court in Gautam Paul v. Debi Rani Paul And Others (2000 SCC 8 330) observed that "family" under the Partition Act is used in a broad, non-technical sense. However, mere blood relation through a common ancestor might not suffice; the connection to the specific family unit associated with the dwelling is important. In Sm. Nirupoma Basak And Others v. Baidyanath Pramanick (1984 SCC ONLINE CAL 205), it was held that for Section 4 of the Partition Act, "undivided family" means a family not divided qua the dwelling house, even if the co-sharers have defined shares (e.g., after the Hindu Succession Act, 1956, where heirs inherit specific shares).

The emphasis, as noted in Sundari Bewa v. Ranka Behara And Others (Orissa High Court, 1968), is on the "undivided character" of the house itself. "It is this attribute of the house which imparts to the family the character of ‘undivided family’."

While cases like Sangeeta v. Ramphool Bobby (Delhi High Court, 2016) and Harish Chander Gupta & Ors. v. Rakesh Gupta & Ors. (Delhi High Court, 2018) discuss the creation and existence of HUFs, which is one form of an undivided family, the term in the context of dwelling houses under the Transfer of Property Act and Partition Act is generally given a wider connotation to protect the familial nature of the residence.

Rights and Restrictions under Section 44, Transfer of Property Act, 1882

Section 44 of the Transfer of Property Act, 1882, plays a crucial role in protecting the sanctity of a dwelling house belonging to an undivided family. The second paragraph of this section stipulates: "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."

The primary object of this provision is to prevent the intrusion of strangers into the family dwelling, thereby preserving domestic peace and comfort for the family members (Dorab Cawasji Warden v. Coomi Sorab Warden And Others, 1990 SCC 2 117). A stranger transferee acquiring a share in such a dwelling house is not entitled to joint possession with the family members. Their sole remedy is to file a suit for partition to get their share demarcated and separated.

The Supreme Court in Dorab Cawasji Warden affirmed the court's power to grant mandatory interlocutory injunctions to restrain a stranger transferee from entering into or remaining in possession of the dwelling house. The Court found that the property in question was a dwelling house belonging to an undivided family, and the transfer of shares to non-family members did not confer joint possession rights. This case underscores the judiciary's proactive role in upholding the protection offered by Section 44.

As observed in Sundari Bewa v. Ranka Behara And Others (Orissa High Court, 1968), Section 44 disentitles the stranger transferee from joint possession or common enjoyment "so long as the dwelling-house retains its undivided character." The interdict against joint possession by a stranger purchaser is considered "explicit and peremptory" (Rajendra Prasad Alias Lallan v. Subodh Chandra Das, Allahabad High Court, 1990, citing Bhim Singh v. Ratnakar Singh, AIR 1971 Ori. 198).

The Right of Pre-emption under Section 4, Partition Act, 1893

Section 4 of the Partition Act, 1893, provides a complementary right to family members when a stranger transferee seeks to disrupt the family's enjoyment of the dwelling house by suing for partition. Section 4(1) states that 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, if any member of the family being a shareholder undertakes to buy the share of such transferee, the court shall make a valuation of such share and direct its sale to such shareholder.

The object of this section is to enable family members to buy out the stranger, thereby preserving the unity of the family property and maintaining its indivisibility and integrity (Hurmat Bibi And Others v. Prodosh Kumar Bajpayee And Another, 1988 SCC SUPP 1 507; Gautam Paul v. Debi Rani Paul And Others, 2000 SCC 8 330).

The Supreme Court in Gautam Paul and Ghantesher Ghosh v. Madan Mohan Ghosh And Others (1996 SCC 11 446) outlined the conditions for the applicability of Section 4:

  • The property must be a dwelling house belonging to an undivided family.
  • A share in the dwelling house must have been transferred to a person who is not a member of such family (a stranger transferee).
  • The stranger transferee must sue for partition.

In Gautam Paul, the Supreme Court held that Section 4 was not applicable because the appellant (stranger transferee) had not initiated a suit for partition. The right of pre-emption under Section 4 is triggered by the stranger transferee's action of suing for partition. The Court in Ghantesher Ghosh clarified that Section 4 can be invoked even in execution proceedings arising out of a final decree for partition, where the stranger transferee seeks to execute the decree for separation of their share.

The Supreme Court in Hurmat Bibi held that a second application under Section 4 by a family member to buy out the stranger's share is permissible, provided that at the time of making such an application, the property has not been divided by metes and bounds and possession of the stranger purchaser's share has not been delivered to him. The petition for invoking Section 4 should contain the relevant averments, but it should be read broadly rather than with microscopic scrutiny (Sm. Nirupoma Basak And Others v. Baidyanath Pramanick, 1984 SCC ONLINE CAL 205).

The relief under Section 4(1) can be claimed by a family member who is also a shareholder when the transferee initiates the suit for partition (Abinash Chandra Chakravarty v. Sm. Kamala Devi, 1952 SCC ONLINE PAT 109).

The (Erstwhile) Special Provision under Section 23, Hindu Succession Act, 1956

Section 23 of the Hindu Succession Act, 1956 (now omitted), contained special provisions regarding the partition of a dwelling house wholly occupied by members of a Hindu intestate's family. Its objective, as elucidated by the Supreme Court in Narashimaha Murthy v. Susheelabai (Smt) And Others (1996 SCC 3 644; also referred to as NARASHIMAHA MURTHY v. SMT. SUSHEELABAI & ORS., Supreme Court Of India, 1996 in reference material 15), was "to prevent hardship to the male heirs by fragmentation of the parental dwelling house at the behest of the female heirs" and to prevent male heirs from being rendered homeless or shelterless. The section restricted female Class I heirs from claiming partition of such a dwelling house until the male heirs chose to divide their respective shares. It also conferred a right of residence on certain female heirs (e.g., unmarried daughters, widowed daughters not having their own accommodation).

The interpretation of "dwelling house" under this section, as discussed earlier, focused on it being the residence of the intestate, intended for continued family occupation. The Court in Narashimaha Murthy also clarified that the term "male heirs" in the plural could include a singular male heir by virtue of the General Clauses Act, or through a common-sense approach based on justice, equity, and good conscience.

Section 23 of the Hindu Succession Act, 1956, was omitted by the Hindu Succession (Amendment) Act, 2005 (with effect from September 9, 2005). This omission marked a significant step towards gender equality, removing the special restrictions placed on female heirs regarding the partition of the family dwelling house. Post-amendment, female heirs (particularly daughters) have rights to seek partition of the dwelling house on par with male heirs, as affirmed by the general principles of equal inheritance rights for daughters as coparceners (Vineeta Sharma v. Rakesh Sharma, Delhi High Court, 2013, discussing Ganduri Koteshwaramma v. Chakiri Yanadi, (2011) 9 SCC 788, in the context of the 2005 amendment to Section 6).

While Section 23 is no longer in force, the body of case law interpreting "dwelling house" and "undivided family" under it continues to offer valuable insights for analogous situations under other statutes, and is relevant for cases that arose prior to its omission.

Interplay and Judicial Interpretation

The provisions of Section 44 of the Transfer of Property Act and Section 4 of the Partition Act work in tandem to protect the family dwelling house. Section 44 TPA acts as a shield, preventing the stranger transferee from forcing joint possession. Section 4 of the Partition Act provides an offensive right to family members to buy out the stranger if the stranger attempts to break the family's exclusive enjoyment by suing for partition.

The consistent judicial approach has been to interpret these provisions in a manner that effectuates their protective intent. The definition of "dwelling house" and "undivided family" is kept flexible to address diverse factual scenarios. The courts emphasize the substance of the family's relationship with the house – their collective residence and intention to treat it as a family home.

The grant of injunctions, as in Dorab Cawasji Warden, demonstrates the courts' willingness to provide effective remedies to prevent the mischief that these sections aim to curb. The factual determination of whether a property has been partitioned is also critical, as seen in Gajara Vishnu Gosavi v. Prakash Nanasaheb Kamble And Others (2009 SCC CIV 4 304), where the consistent finding of no partition by three courts was upheld, implying the continued "undivided" status of the property in that context.

Conversely, if a valid family settlement results in partition, as discussed in Narendra Kante v. Anuradha Kante And Others (2010 SCC 2 77), the property may cease to be a "dwelling house belonging to an undivided family," rendering these special provisions inapplicable. The validity and effect of such settlements are, therefore, pertinent considerations.

Conclusion

The legal framework in India concerning dwelling houses belonging to an undivided family reflects a nuanced attempt to balance the property rights of individual co-owners with the broader societal interest in preserving family homes and domestic peace. Section 44 of the Transfer of Property Act, 1882, and Section 4 of the Partition Act, 1893, form the cornerstone of this protective regime, offering mechanisms to prevent the intrusion of strangers and to allow family members to consolidate their ownership if a stranger transferee seeks partition.

Judicial interpretations have consistently favored a purposive construction of these provisions, defining key terms like "dwelling house" and "undivided family" broadly to encompass a variety of situations where a family collectively resides in and treats a property as their home. The omission of Section 23 of the Hindu Succession Act, 1956, represents a significant legislative evolution towards gender equality in matters of inheritance and partition of family dwellings, bringing the rights of female heirs on par with male heirs in this regard.

The continued application and interpretation of these laws by Indian courts will undoubtedly evolve, but the fundamental principle of safeguarding the unique character of the family dwelling house remains a constant thread in Indian property jurisprudence.