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Case Number

A.F.A.D No. 731 of 1962

Advocates

Lala Hemanta Kumar
Amar Nath Banerjee and Chandidas Roy Chowdhary
Amarendra Mohan Mitra and Arunendra Nath Basu
for Respon dents

Judges

P.N Mookerjee
A.C Gupta, JJ.

Acts

SECTION 4 PARTITION ACT

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Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

This appeal was brought by the plaintiffs in a suit for partition in which they claimed pre-emption under Section 4 of the Partition Act. The suit was instituted on March 20, 1957. Two days later (March 22, 1957) the plaintiffs applied for a temporary injunction to restrain the defendant from erecting structures or changing the character of the suit land, referring to their claim for pre-emption on the ground that the defendant was a stranger purchaser who had acquired 2/3rds of the property.

On September 22, 1959 the plaintiffs made a specific application for pre-emption under Section 4, setting out the requirements of that section. The Trial Judge found that the plaintiffs owned a 1/3rd share and the defendant 2/3rds, entered a preliminary decree for partition and, treating the property as sufficiently within the expression "dwelling house belonging to undivided family", allowed the plaintiffs' claim for pre-emption.

On appeal the appellate court disallowed the plaintiffs' claim for pre-emption and instead directed that partition be worked out by a Commissioner by allotment in accordance with shares and present possession. The plaintiffs filed the present second appeal seeking restoration of the Trial Court's decision on the pre-emption claim.

The disputed property originally belonged to Satya Charan (the plaintiffs' grandfather). He left three sons: Gouri (father of the plaintiffs), Bimal and Nirmal. Relevant transfers were:

June 15, 1954 — plaintiffs sold their original 1/3rd share to co-sharer Nirmal (so Nirmal held 2/3rds at that time).
March 19, 1955 — plaintiffs purchased a 1/3rd interest from Bimal's heirs (thus regaining a 1/3rd interest before the defendant's purchase).
August 4, 1956 — Nirmal sold his 2/3rds share to the defendant.

Historically the site contained the ancestral dwelling house of the plaintiffs' undivided family. During military requisition in about 1942 the structures were demolished and the site remained vacant land after derequisition circa 1950. No structures had been rebuilt up to the time of the proceedings, although plaintiffs stated an intention to erect a residence there.

Legal Issues Presented

Whether the disputed property, now vacant land which formerly contained the family ancestral dwelling, can be treated as a "dwelling house" within the meaning of Section 4 of the Partition Act and thereby entitle the plaintiffs to pre-emption.
Whether Section 4 of the Partition Act applies in a case where the stranger purchaser is sued as a defendant (i.e., whether the statutory protection extends against a stranger purchaser sued in partition).
Whether the plaintiffs, having reacquired a 1/3rd interest before the defendant's purchase, were persons entitled to claim pre-emption under Section 4.

Arguments of the Parties

Plaintiffs' Arguments

The plaintiffs sought pre-emption under Section 4 of the Partition Act, asserting that the disputed property was the site of their ancestral dwelling house and that they were entitled to exercise pre-emption against a stranger purchaser.
They applied for an injunction to prevent the defendant from erecting structures or changing the character of the land, and averred they intended to erect a dwelling house on the site.
They relied on the fact that they had come into a 1/3rd share (by purchase from Bimal's heirs) before the defendant's purchase, to bring themselves within the category of persons entitled to claim pre-emption.

Defendant's Arguments

Mr. Mitra, for the defendant-respondent, contended that the liberal interpretation of Section 4 invoked by the plaintiffs should apply only where the defendant himself was claiming a share of the disputed property; it should not apply where, as in this case, the defendant's position was that the property had already been partitioned between the parties or their predecessors.
The defence of previous partition was raised by the defendant, though both courts below found that defence to be unacceptable/concurrent findings negatived it.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Botokrishna Ghose v. Akhoy Kumar Ghose, 54 Cal WN 660 : AIR 1950 Cal 111	Support for the proposition that a person who acquires a share before the stranger purchaser's purchase can be within the category of persons entitled to claim pre-emption under Section 4.	The Court relied on this authority to conclude that plaintiffs who reacquired a 1/3rd interest before the defendant's purchase brought themselves within those entitled to claim pre-emption.
Abu Isa Thakur v. Dinabandhu Banik, 51 Cal WN 639 : AIR 1947 Cal 426	That Section 4 of the Partition Act applies not only when a stranger purchaser sues as plaintiff but also where a stranger purchaser is sued as defendant for partition.	The Court cited this decision to support the proposition that the statutory provision applies where the stranger purchaser is a defendant.
Haradhone Haidar v. Usha Charan Karmakar, 96 Cal LJ 168 : AIR 1953 Cal 292	Same principle as Abu Isa Thakur — applicability of Section 4 when stranger purchaser is defendant.	The Court cited this authority alongside Abu Isa Thakur to reinforce that Section 4 applies in suits where the stranger purchaser is a defendant.
Ramaswami Pillai v. Subramania Pillai, (1966) 2 Mad LJ 132 : AIR 1967 Mad 156	Cited in connection with the proposition that Section 4 would apply to facts of the instant case.	The Court cited this authority among others in support of its view that the statutory provision could apply to the present matter.
Nil Kamal v. Kamakshya Charan, AIR 1928 Cal 539	Held that the mere disappearance or demolition of structures does not conclusively show that the land has ceased to be a family dwelling house; laid down the test that it remains a dwelling house so long as members have not abandoned it or given up the idea of using it as such.	The Court relied on and quoted this decision (Mukherji, J.) as providing the relevant test to decide whether the vacant site that once contained the dwelling house still falls within "dwelling house" for Section 4.
Kalipada Ghose v. Tulsidas Dutt, AIR 1960 Cal 467	Identified as providing supporting authority for the principles in AIR 1928 Cal 539.	The Court noted this decision as sufficiently, though not directly, supporting the view taken in AIR 1928 Cal 539.
Bhagirath v. Afaq Rasul, AIR 1952 All 207	A similar view taken by the Allahabad High Court on the related question.	The Court observed that this decision takes a more or less similar view, though it may be distinguishable on some points.
Bikal Swain v. Iswar Swain, AIR 1959 Orissa 173	Decision that supports a contrary position to the Court's broad view on application of Section 4 to vacant land once containing a dwelling house.	The Court recorded that this Orissa decision supports the contrary position but stated that, in the Court's opinion, that decision did not take a correct and comprehensive view of the Calcutta decision in AIR 1928 Cal 539.
(unnamed) AIR 1961 Orissa 203	Referenced observations from that report.	The Court described observations in that report as obiter and stated they do not seriously affect the position taken by this Court.

Court's Reasoning and Analysis

The Court framed the decisive legal question as whether vacant land that formerly contained the ancestral family dwelling house can be treated as a "dwelling house" within Section 4 of the Partition Act so as to give members of the family a statutory right of pre-emption against a stranger purchaser.

The Court proceeded through the following analytical steps (stated in the opinion):

Recitation of facts: the site was originally the family ancestral dwelling; during military requisition the structures were demolished; on derequisition (about 1950) the land remained vacant and no structures had been rebuilt up to the time of proceedings, although plaintiffs asserted an intention to erect a residence.
Confirmation that plaintiffs had brought themselves within the category entitled to claim pre-emption by reacquiring a 1/3rd share before the defendant's purchase (citing Botokrishna Ghose v. Akhoy Kumar Ghose).
Affirmation of the established rule in this Court that Section 4 is to be liberally construed in favour of family members and strictly against a stranger purchaser; and that Section 4 applies where the stranger purchaser is sued as defendant (citing Abu Isa Thakur and Haradhone Haidar).
Rejection of the defendant's argument (advanced by Mr. Mitra) that the liberal interpretation should only apply where the defendant himself was claiming a share but not where he pleads previous partition; the Court noted that concurrent findings below negatived previous partition, so the defence of previous partition could not be relied upon to exclude Section 4's applicability.
Identification of Nil Kamal v. Kamakshya Charan (AIR 1928 Cal 539) as laying down the controlling test: the mere disappearance of the physical huts does not deprive the land of its character as a dwelling house so long as members have not abandoned it or given up the idea of using it as such. The Court quoted Mukherji, J.'s test verbatim.
Recognition that the quoted test is decisive and relevant, but an explicit statement that the present record does not contain sufficient material to determine whether that test is satisfied in this case (i.e., whether the family had abandoned the idea of using the site as a dwelling house).
Accordingly, instead of deciding the substantive question finally, the Court remitted the matter to the Lower Appellate Court for a fresh decision on that point based on the materials already on record and any further materials the parties may produce concerning the intention to use the land as a dwelling and related matters.

The Court emphasized its general approach of giving a liberal construction to Section 4 in order to preserve the family dwelling house and to favour family members over a stranger purchaser, but it did not finally resolve the factual question whether the particular vacant site still qualified as a dwelling house on the present record.

Holding and Implications

Holding: The appeal is allowed; the decree of the Court of Appeal is set aside and the matter is remitted to the Lower Appellate Court for further consideration and final disposal in the light of the observations made in this judgment.

Direct implications for the parties:

The appellate court's order disallowing pre-emption and directing ordinary partition by allotment has been set aside.
The question whether the vacant site qualifies as a "dwelling house" for purposes of Section 4 (and thus whether the plaintiffs are entitled to pre-emption) is sent back to the Lower Appellate Court to be decided on the existing record and any additional material the parties may produce.
Costs of this appeal will abide the final result of the suit.

Broader implications:

The Court reiterated and applied the established, liberal approach to construing Section 4 of the Partition Act in favour of family members; however, because the Court remanded for further factual inquiry rather than issuing a definitive test-based ruling on the facts, it did not in this opinion itself set a new controlling precedent superseding prior authorities.

Result stated in the opinion: Appeal allowed.

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Sunil Kumar Mukhopadhaya And Another v. Provash Chandra Majumdar And Others

P.N Mookerjee, J.:— This appeal is by the plaintiffs and it arises out of a suit for partition, in which the plaintiffs made a claim for preemption under Section 4 of the Partition Act.

2. The suit was instituted on March 20, 1957. The plaint was a simple plaint for partition on the allegation inter alia that the plaintiffs had ⅓rd undivided share in the disputed property. Within two days, namely, on March 22, 1957, the plaintiffs applied for a temporary in unction to restrain the defendant from erecting structures on the suit land or changing its character and, in the said application, a reference was made to the plaintiffs' claim for preemption, or right in that behalf, — under Section 4 of the Partition Act upon the ground that the defendant was a stranger purchaser, although he had purchased the major share, namely, ⅔rds, and, on the implication, though not very expressly stated, that the disputed property comprised the ancestral dwelling house of the plaintiffs' family. Thereafter, the suit proceeded for some time and, eventually, on September 22, 1959, there was a specific application for pre-emption under Section 4 of the Partition Act, mentioning all the requirements under the said section. The learned Trial Judge, after finding that the plaintiffs had ⅓rd share in the disputed property and the defendant the remaining ⅔rds, made a preliminary decree for partition, and, upon the plaintiffs' above application under Section 4 of the Partition Act, came to the conclusion that, having regard to the nature of the disputed property and the circumstances of this case, it could be treated as coming sufficiently within the expression “dwelling house belonging to undivided family”, as used in the said section, and, accordingly, the plaintiffs were entitled to pre-emption under the said statutory provision. In that view, he allowed the plaintiffs' said claim for preemption.

3. On appeal, this decision was modified by disallowing the plaintiffs' claim under Section 4 of the Partition Act and giving them, in lieu thereof, only a decree for partition to be worked out in the ordinary way by a Commissioner by allotment of the disputed property to the parties in accordance with their shares, keeping in view their present possession.

4. From this appellate decree, the present second appeal has been filed by the plaintiffs, who press their claim for pre-emption under Section 4 of the Partition Act and challenge the findings and the decision of the Lower Appellate Court on the point and ask for restoration of the Trial Court's decision in respect of the same.

5. For the decision of this appeal, it will be convenient now to state, in brief, the relevant facts.

6. The suit property originally belonged to one Satya Charan, who was the grand-father of the present plaintiffs. Satya Charan died, leaving three sons Gouri, Bimal and Nirmal. Plaintiffs are the sons of Gouri and are his heirs and legal representatives. On June 15, 1954, the plaintiffs appear to have sold their ⅓rd share in the disputed property to their co-sharer, uncle Nirmal, who thus got ⅔rds share in the disputed property, ⅓rd under this purchase and ⅓rd originally by inheritance from Satya Charan. On March 19, 1955, the plaintiffs appear to have purchased, from cosharers Bimal's heirs, their ⅓rd interest in the disputed property, and, on August 4, 1956, Nirmal appears to have sold his above ⅔rds share of the disputed property to the defendant.

7. The disputed property, as it now stands, comprises vacant land but is well established that, upon this land, stood the original ancestral dwelling house of the plaintiffs' undivided family, or, in other words, that the disputed property was the site of that ancestral dwelling house. That house, along with the land underneath, forming its site, appears to have been requisitioned under the Defence of India Act by the military authorities, sometime in the year 1942, and it remained in their occupation until derequisition till about 1950. In the meantime, the structures on the said land, which had become dilapidated, were demolished by the military authorities and razed to the ground with the result that the site of the plaintiffs' ancestral dwelling house, or, more accurately, what was once the said dwelling house became vacant land. This was the state of the property, when the same was derequisitioned by the military authorities, and, thereafter, as we have seen above, there were certain transfers, which passed the title to undivided shares to the different parties, and, eventually, the plaintiffs became ⅓rd owners of the same under the purchase from their co-sharers (Bimal's heirs) and the defendant obtained the remaining ⅔rds from the other co-sharer Nirmal.

8. The principal question now is whether the disputed property can be held to be the dwelling house for purposes of the above statutory provision, namely. Section 4 of the Partition Act. Admittedly, there are no structures on the same at the present moment and there were never any at any time after 1950. The point is whether the absence or demolition of structures would alter the nature of the property, which was once the dwelling house of the family, and take it outside the purview or benefit of the above Section 4 of the Partition Act.

9. So far as this Court is concerned, the above statutory provision has almost always been liberally construed and widely interpreted in favour of the members of the family and strictly against the stranger purchaser. That will appear from all the relevant decisions, on the point, of this Court up till this time. Indeed, that is the view, which has been almost universally accepted in this Court and almost without demur at all times. Whether this rule of liberal construction and wide interpretation would have the effect of bringing the disputed property, which is now vacant land, within the meaning of “dwelling house”, as used in the said section, is the principal mattes for consideration in this appeal.

10. We may state here that, although the plaintiffs sold their original ⅓rd share to another co-sharer Nirmal and thus became divested of any interest for some time in the disputed property, they, by the acquisition of the ⅓rd interest of co-sharer Bimal from his heirs in the year 1955, that is, before the defendant's purchase and before the insitution of the present suit, brought themselves within the category of persons, entitled to claim pre-emption under the above Section 4 of the Partition Act (vide Botokrishna Ghose v. Akhoy Kumar Ghose, 54 Cal WN 660 : (AIR 1950 Cal 111).

11. It is also well settled in this Court that the above statutory provision (Section 4 of the Partition Act) applies not only in the case of a suit by the stranger purchaser as plaintiff but, also, to a case, where the said stranger purchaser is sued as a defendant for partition (vide Abu Isa Thakur v. Dinabandhu Banik, 51 Cal WN 639 : (AIR 1947 Cal 426) and Haradhone Haidar v. Usha Charan Karmakar, 96 Cal LJ 168 : (AIR 1953 Cal 292)).

12. A point has been raised by Mr. Mitra, appearing on behalf of the defendant-respondent in this case, that interpretation would be applicable or available, only where the defendant himself was claiming a share of the disputed property and not to a case, where the defendant's claim was, as in the instant case, that the property was not undivided joint property but had already been partitioned between the parties or the is predecessors. This argument, however, having regard to the concurrent finding a of the two Courts below that the defence of previous partition was unacceptable, cannot be accepted as a relevant distinction. The property, if it is really joint or undivided, would entitle the defendant (stranger purchaser) to his share, acquired by him by purchase, as aforesaid, — and he is actually claiming the same, — and so, the mere fact that he raised the defence of previous partition, which was ultimately negatived, would not alter the position. Indeed, in no view, can the stranger defendant be said to have given up or abandoned his claim to the purchased ⅔rds share or to a partition on the same, in case the property is held to be joint property of the parties, and, as a matter of fact, he has pressed for the same.

13. We are, accordingly, of the view, that, provided the disputed property which, as we have said above, is vacant land at the present moment, can be treated as “dwelling house” within the meaning of the aforesaid statutory provision, that provision would apply to the Instant case to entitle the plaintiffs to their claim for preemption. Vide, in this connection, the authorities, already cited, and Ramaswami Pillai v. Subramania Pillai, (1966) 2 Mad LJ 132 : (AIR 1967 Mad 156).

14. On the above material question. She position, as we have sufficiently indicated above, appears to be as follows:

15. On the vacant land in question, there was originally the ancestral dwelling house of the plaintiffs' family. During military requisition, the structures were demolished and the property was transformed to vacant land. The parties got possession in the year 1950 but up till now, no structure has been built upon the same, although the plaintiffs claim that they had and have an intention of erecting their residence or dwelling house on it.

16. In the kobala, by which the plaintiffs' share was sold to Nirmal, there was a recital that the same was being given to Nirmal, so that he may use it for purposes of the residence of his family, the plaintiffs' shifting elsewhere for purposes of their residence. The plaintiffs, thereafter, acquired Bimal's interest in the disputed property but it is not clear from the materials, now before us, including the kobala, by which the said purchase was made, for what purpose the same was acquired. It has been ruled by this Court in Nil Kamal v. Kamakshya Charan. AIR 1928 Cal 539, that the mere fact that the structures on the disputed land, which was once the site of the family dwelling house of the parties, had disappeared, would not by itself, be conclusive on the point, whether it had ceased to be the dwelling house of the family. In the said decision Mukherji, J. laid down the relevant test in the following lterms:

“The fact that the huts have blown down does not make the dwelling house any the less a dwelling house so long as the members have not abandoned it or, at any rate, given up the idea of using it as such.”

17. That test seems to us to be a valuable and reasonable test relevant and cogent on the point, and decisive on the question of the character of the property for purposes of the above statutory provision and it will be necessary to find out whether. In the instant case, that test is satisfied. This aspect of the matter, however, does not appear to have been appreciated or fully realised, either by the parties or by the Courts below, and, accordingly, sufficient materials on this point are not available on the present records.

18. In the above view, we are unable to dispose of the matter finally now in fills Court and the same will have to be remitted to the Lower Appellate Court, for a decision on the said question on the materials, already on record and on such further materials as may be produced before it by the parties in support of their respective cases on the point.

19. The view, we have taken above of the relative position in law and the view, we have taken of the decision, reported in AIR 1928 Cal 539 will be sufficiently, though not directly, supported by another decision of this Court, reported in Kalipada Ghose v. Tulsidas Dutt, AIR 1960 Cal 467. See also 54 Cal WN 660 : (AIR 1950 Cal 111), Supra.

20. A more or less similar view appears also to have been taken by the Allahabad High Court in Bhagirath v. Afaq Rasul. AIR 1952 All 207 although it may be pointed out that the said decision may be distinguishable from some points of view. The decision of the Orissa High Court in Bikal Swain…Plaintiff, v. Iswar Swain…Defendant, ., AIR 1959 Orissa 173, no doubt supports the contrary, but, in our opinion, the said decision did not take a correct and comprehensive view of the decision of this Court in the above cited case, AIR 1928 Cal 539 and did not make the same liberal approach for the Section in question as has so often been stressed and recommended by this Court, We, further feel that the broad view we have taken above, seems to be supported by the object and scheme of the section Under consideration and its underlying spirit and purpose and the liberal approach and wide outlook, advocated by this Court almost on all occasions, whenever the said statutory provision came up for consideration, to solve difficulties and complications that would have otherwise arisen and remained outstanding, and that no other view would be consistent or in consonance with the same, remembering that this Court has almost as a rule, striven to apply the aforesaid section to preserve the integrity of the family dwelling house and to enable the members of the family to keep it for themselves as far as possible. We may also add that the relative observations in AIR 1961 Orissa 203 are obiter and do not seriously affect the position.

21. We would, accordingly, allow this appeal, set aside the decree of the Court of appeal below and send the matter back to the said Court for further consideration and for final disposal in the light of the observations, made in this judgment. Costs of this appeal will abide the final result of the suit.

Gupta, J.:— I agree.

SSG/D.V.C

22. Appeal allowed.

Sunil Kumar Mukhopadhaya And Another v. Provash Chandra Majumdar And Others

Structured Summary of the Provided Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Plaintiffs' Arguments

Defendant's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Sunil Kumar Mukhopadhaya And Another v. Provash Chandra Majumdar And Others

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