Citation Codes

Equivalent Citations

citation codes

Case Number

AFAD No. 1941 of 1946

Judges

Lahiri, J.

Acts

Sec. 53A and the language of Sec. 44 of the Transfer of Property Act
TRANSFER OF PROPERTY ACT
Sec. 44 of the Transfer of Property Act
Sec. 4 of the Partition Act.11.
Sec. 4 of the Partition Act

See more information ...

Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

The plaintiffs instituted a suit for an injunction under the second paragraph of Sec. 44 of the Transfer of Property Act seeking to restrain Defendant No. 1, a stranger who had purchased an undivided share from one co-sharer, from exercising any act of joint possession in respect of three plots (C.S. Plots Nos. 516, 504 and 554). The plaintiffs asserted that several C.S. plots (553 and 509–513) comprised the homestead proper and that Plots Nos. 516, 504 and 554 were parts of the homestead (tanks or lands adjacent to the homestead). Defendant No. 1 pleaded that the suit was not maintainable, alleged a partition of the dwelling-house by metes and bounds, and claimed an easement/right in respect of Plot No. 516 (the tank).

The Court of First Instance decreed the plaintiffs' suit in respect of Plots Nos. 516, 504 and 554, finding they were parts of the undivided family dwelling-house and that there had been no partition by metes and bounds; the easement question was left open by consent. On appeal by Defendant No. 1, the Appellate Court affirmed the trial court's decree in respect of Plots Nos. 504 and 554 but modified the decree as to Plot No. 516: it maintained the injunction for the southern and western banks of the tank but dissolved it for the northern and eastern banks, declaring the defendant entitled to exercise joint possession over those banks (while being restrained from using certain ghats). The present proceeding is a second appeal limited to C.S. Plot No. 516.

Legal Issues Presented

Whether the Appellate Court's declaration granting Defendant No. 1 a decree of joint possession (in a suit instituted by the plaintiffs) was legally permissible in form and substance.
Whether the plaintiffs were entitled to an injunction under the second paragraph of Sec. 44 of the Transfer of Property Act restraining the stranger purchaser (Defendant No. 1) from exercising any act of joint possession in respect of C.S. Plot No. 516.
Whether the presence of ghats constructed by strangers on parts of the tank could justify modifying or dissolving the injunction previously granted to the plaintiffs.
Whether the tank (C.S. Plot No. 516), being adjacent to bastu plots, is part of the undivided dwelling-house and, if so, whether the question of its being “essential for convenient use or enjoyment” is relevant.
Whether there was evidence of a partition by metes and bounds of the family dwelling-house (as alleged by the defendant).
Whether Sec. 44 of the Transfer of Property Act merely operates as a restrictive provision (defensive) analogous to Sec. 53A of the Transfer of Property Act, or whether it creates a substantive right in favour of co-owners to obtain an injunction against a stranger transferee.

Arguments of the Parties

Appellant's Arguments (Mr. Chakraborty, supporting the plaintiffs)

The Appellate Court's decree declaring a right of joint possession in favour of Defendant No. 1 is illegal in form — a court cannot grant a decree in favour of a defendant in a suit instituted by plaintiffs; at best the Appellate Court could modify the trial court's decree.
The Appellate Court erred in modifying the trial court's injunction on the basis that strangers had previously constructed ghats on parts of the tank; prior introduction of strangers cannot defeat the plaintiffs' right to enforce their rights against a subsequent stranger purchaser.
Relied on Masitullah v. Umrao to support the proposition that omission to exercise a pre-emption/right earlier does not estop co-sharers from exercising their rights on a new transfer — the sale to Defendant No. 1 gave rise to a new cause of action in favour of the plaintiffs.

Respondent's Arguments (Mr. Jana, supporting the respondent/defendant)

Challenged the courts below for failing to give effect to recitals in documents (Exts. A and A-1) said to establish partition by metes and bounds.
Argued that Sec. 44 is merely a restrictive provision (defensive) and does not create a substantive right for the co-owners to seek an injunction; drew analogy with Sec. 53A of the Transfer of Property Act to contend Sec. 44 is not a weapon of offence but of defence.
Relied on the position that permitting a stranger purchaser to be entirely excluded might be inequitable and that circumstances (like existing ghats/uses by others) justify limiting an injunction.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Masitullah v. Umrao	Cited for the proposition that non-exercise of the right of pre-emption under Sec. 4 of the Partition Act on a prior occasion will not preclude co-sharers from exercising that right on a subsequent transfer; no estoppel arises from failure to claim earlier.	The court acknowledged the principle but observed that the present sale to Defendant No. 1 gave rise to a fresh cause of action in favour of the plaintiffs; thus the Appellate Court's reliance on past introduction of strangers to defeat plaintiffs' rights was not sound in the particular circumstances of this case.
Sujit Kumar Biswas v. Iswar Chandra Nandi	Invoked to show the underlying principle of Sec. 44 — that it is inequitable to permit a stranger to intrude upon the privacy of a joint Hindu family residence and that co-sharers have a right to seek an injunction against such intrusion.	The court accepted the reasoning: Sec. 44 gives co-sharers a right to ask for an injunction restraining a stranger purchaser from joint possession of the family residence. On this point the court overruled the respondent's attempt to treat Sec. 44 as merely defensive and not creating an actionable right.

Court's Reasoning and Analysis

The court examined both the form and the merits of the Appellate Court's decision regarding C.S. Plot No. 516 and proceeded in a stepwise fashion:

Formality: The court held that the Appellate Court's direct declaration of a decree of joint possession in favour of the defendant in a suit instituted by the plaintiffs was legally impermissible in form. That declaration was described as "bad in law." However, this was treated as a matter of form rather than substance — the Appellate Court could only have modified the trial court's decree.
First substantive reason of Appellate Court — presence of strangers/ghats: The Appellate Court had modified the injunction partly on the ground that certain strangers had previously built ghats on parts of the tank. The present court found this reasoning unsound. It emphasized that prior introduction of strangers could not adversely affect the plaintiffs' right to enforce their rights against a subsequent stranger purchaser; the sale to Defendant No. 1 constituted a fresh cause of action for the plaintiffs.
Second substantive reason — whether whole tank is essential: The Appellate Court found the whole tank was not essential for convenient use of the homestead. The present court observed that the trial court had already found Plot No. 516 appertained to the undivided dwelling-house of the plaintiffs and co-sharers. Once a plot is found to be part of the dwelling-house, the separate question of whether the whole of it is "essential for convenient use or enjoyment" does not arise; adjacency to bastu plots supports its status as part of the dwelling-house.
Third substantive reason — supposed probability of defendant having a ghat: The Appellate Court's assertion that "in all probability" the defendant had a ghat on the eastern bank was found to be unsupported by evidence. The present court criticized this observation as being based on no evidence.
Fourth substantive reason — inequity of excluding the defendant altogether: The Appellate Court's stance that it would be inequitable to keep the defendant entirely out of possession was deemed erroneous. The court clarified that the injunction sought was only to prevent the defendant from exercising any act of joint possession along with the plaintiffs/co-sharers. The defendant, as purchaser of an undivided share, has title to a portion and his remedy lies in a suit for partition to obtain his share, unless pre-empted under Sec. 4 of the Partition Act.
Partition allegation: The court treated the Appellate Court's factual conclusion that there was no partition by metes and bounds as final and conclusive. It noted that the Appellate Court had considered the documentary recitals (Exts. A and A-1), and on the total evidence concluded that the alleged partition had not been proved — a factual finding that cannot be interfered with in second appeal.
Statutory interpretation — Sec. 44 vs Sec. 53A analogy: The court considered the argument that Sec. 44 is merely restrictive and analogous to Sec. 53A. It rejected that analogy. The court read the second paragraph of Sec. 44 as depriving the external transferee of title to joint possession and held that Sec. 44 does create a substantive right in favour of affected co-owners to seek an injunction restraining a stranger purchaser from joint possession. Consequently, Mr. Jana's contention that Sec. 44 is only defensive was overruled.

Holding and Implications

Holding: The decree of the lower Appellate Court is set aside and that of the Court of First Instance is restored.

Direct consequences and implications for the parties (as stated in the opinion):

The injunction in favour of the plaintiffs as decreed by the Court of First Instance in respect of C.S. Plot No. 516 is restored; the defendant is restrained, as sought by the plaintiffs, from exercising any act of joint possession in respect of that plot (subject to the trial court's decree as restored).
The Appellate Court's formal declaration of a right of joint possession in favour of Defendant No. 1 was legally improper and is displaced by restoring the trial court's decree.
The defendant, as purchaser of an undivided share, has title to a portion of the tank and his proper remedy to realize his share is to institute a suit for partition (unless he is pre-empted under Sec. 4 of the Partition Act); the injunction sought did not aim to exclude the defendant from possessing any share he may obtain by partition.
The cross-objection was dismissed, there will be no order as to costs in either the appeal or the cross-objection, and leave to appeal under the Letters Patent was refused.

The opinion interprets Sec. 44 of the Transfer of Property Act as conferring on affected co-owners a right to seek injunctive relief against a stranger purchaser; it rejects the contention that Sec. 44 is merely analogous to Sec. 53A in rendering the section purely defensive. The court did not state a broader new precedent beyond its resolution of the present disputes between the parties; the direct legal effects are the restoration of the trial court's decree and the directions recorded above.

Show full summary ...

Lal Behari Samanta v. Gourhari Dawn

1. This appeal is at the instance of the Plaintiffs and it arises out of a suit for injunction restraining Defendant No. 1 from exercising any act of joint possession in respect of an undivided share of a dwelling-house.

2. The case of the Plaintiffs is that C.S Plots Nos. 553 and 509 to 513 constitute the homestead proper of the Plaintiffs and C.S Plots Nos. 516, 504 and 554 are parts of the homestead being tanks or lands adjacent to the homestead. Recently Defendant No. 1 who is a stranger to the family purchased from one of the co-sharers an undivided share in C.S Plots Nos. 516, 504 and 554 and was threatening 10 interfere with the Plaintiffs' possession. The Plaintiffs accordingly prayed for an injunction in terms of the second paragraph of Sec. 44 of the Transfer of Property Act restraining Defendant No. 1 from exercis- ing any act of joint possession in respect of these three plots. The defence of the principal Defendant No. 1 was that the suit was not maintainable, that there was a partition of the dwelling-house by metes and bounds, that in any event the Defendant No. 1 had a right of easement in respect of the tank which is C.S Plot No. 516.

3. The Court of First Instance decreed the Plaintiffs' suit in respect of C.S Plots Nos. 516, 504 and 554 holding that they were parts of the undivided family dwelling-house of the Plaintiffs and that there was no partition by metes and bounds amongst the co-owners of the dwelling-house, the question of the easement right being left open by consent.

4. On appeal by Defendant No. 1 the decree of the trial Court was affirmed with regard to C.S Plots Nos. 504 and 554 but the decree of the Court of First Instance was modified with regard to Plot No. 516. This Plot No. 516 is a big tank. The Court of Appeal below modified the injunction granted by the Court of First Instance in this way: That the injunction should stand in respect of the southern and western bank of the tank but it should be dissolved in respect of the northern and eastern banks and that the Defendant should be entitled to exercise joint possession in respect of the northern and eastern banks but he will not be permitted to use any ghat on the southern and western banks of the tank.

5. The present second appeal is confined only to C.S Plot No. 516. With regard to Plot No. 516 the Court of Appeal below has come to the following findings:

“(a) It is no doubt adjacent to some of the bastu Plots but it can hardly be said that the whole of this big tank is essential for the convenient use or enjoyment of the homestead;

(b) There are in all 7 or 8 ghats in it and only 3 of them on the south-west corner belong to the Plaintiffs….. There are other ghats of strangers on the other side of this tank;

(d) It seems to me rather inequitable and hard that the whole of such a big tank should be treated as an appertenance of the homestead and the Defendant kept out of its possession altogether.”

6. Upon the aforesaid findings the Appellate Court came to the conclusion that the Plaintiffs were not entitled to an injunction restraining Defendant No. 1 from using any portion of the tank jointly with the Plaintiffs.

7. Mr. Chakraborty appearing in support of the appeal has argued, in the first place, that the decree for joint possession made by the Court of Appeal below in favour of Defendant No. 1 is illegal. This argument is quite sound. There could be no decree in favour of a Defendant in a suit instituted by the Plaintiffs. All that the Court could say was that the decree made by the Court of First Instance be modified in the manner indicated by the Appellate Court, but the declaration of the right of joint possession of Defendant No. 1 is certainly bad in law. But this is a mere matter of form. On the merits of the case Mr. Chakraborty has argued that the Appellate Court was wrong in law in modifying the decree of the First Court on the ground that several strangers had built certain ghats in a certain portion of the tank. He argued that the introduction of strangers on previous occasions could not in any way affect the right of the Plaintiffs from enforcing their rights against a stranger on a subsequent occasion. The circumstances under which the strangers were permitted to construct ghats on a certain portion of the tank are not known to us. Mr. Chakraborty relied upon the case of Masitullah v. Umrao(1) in support of the proposition that the fact that certain co-sharers did not exercise the right of pre-emption under Sec. 4 of the Partition Act on a previous occasion will not debar them from exercising that right on a subsequent occasion upon a new transfer. In this case it has been said that “no estoppel can arise against the Defendants for their not having claimed the benefit of Sec. 4 in the former suit. The sale of the Plaintiffs has given rise to a fresh cause of action and there is nothing in law to preclude the Defendants from exercising their statutory right under Sec. 4 of the Partition Act.” It is no doubt true that in the case before me there is no question of any estoppel but at the same time I hold that the sale to Defendant No. 1 has given rise to a new cause of action in favour of the Plaintiffs and the Plaintiffs are entitled to enforce their right against Defendant No. 1. Therefore, the first reason given by the Court of Appeal below for modifying the injunction granted by the trial Court is not, in my judgment, quite sound.

8. The second reason given by the Court of Appeal below is that though the tank is adjacent to the bastu plots, it could not be said that the whole of this big tank is essential to the convenient use or enjoyment of the homestead. On this point the Court of First Instance came to the conclusion that C.S Plot No. 516 appertains to the undivided dwelling-house of the Plaintiffs and their co-sharers. Upon that finding it is quite clear that this tank is a part of the dwelling-house of the Plaintiffs and his co-sharers. If it is a part of the dwelling-house, the question whether it is essential for convenient use or enjoyment of the homestead does not arise. The Appellate Court also holds that this tank is adjacent to some of the bastu plots. If that be so, it is a part of the dwelling-house.

9. The third reason given by the Court of Appeal below that in all probability the Defendant who has lands on the eastern bank of the tank has also a ghat on that side, does not bear scrutiny. There is no evidence on the record that the Defendant has built a ghat on the eastern side of the tank. Therefore, this observation of the Court of Appeal below is based on no evidence.

10. The last reason given by the Court of Appeal below to the effect that in the circumstances of the case it will be inequitable to keep the Defendant out of possession of the tank altogether is equally erroneous. The effect of the injunction, prayed for, is not to keep the Defendant out of possession of the tank altogether but merely to prevent him from exercising any act of joint possession along with the Plaintiffs or their co-sharers. The Defendant as the purchaser of an undivided share has certainly a title to a portion of the disputed tank but his remedy lies in a suit for partition and he can possess his own share by instituting a suit for partition unless, of course, he is pre-empted under Sec. 4 of the Partition Act.

11. Mr. Jana appearing in support of the Respondent has urged, in the first place, that the Courts below were not right in holding upon the evidence on the record that there was no partition of the family dwelling-house. In particular, he pointed out that the Courts below have not given effect to the recitals contained in Exts. A and A-1. It appears from the judgment of the Appellate Court that both these documents were considered in the judgment. With regard to Ext. A-1 which is a kobala by which the Defendant No. 1 purchased from the Plaintiffs' co-sharers, the Appellate Court has pointed out upon a consideration of the entire kobala in- cluding the schedules, that the recital about amicable partition referred only to an arrangement of exclusive possession for the sake of convenience and did not mean partition by metes and bounds. With regard to Ext. A, it was pointed out by the Court of Appeal below that the recital was made by certain persons who had not yet acquired any title to the property and as such the recitals were of no value as against the Plaintiffs. Upon a consideration of all the relevant evidence on the record the Court of Appeal below came to the conclusion that the story of partition set up by Defendant No. 1 had not been proved. In this view of the matter it seems to me that the decision of the Court of Appeal below on this question is final and conclusive, it being a question of fact which cannot be interfered with in second appeal.

12. In the second place, Mr. Jana has argued that Sec. 44 is merely a restrictive section and does not create any right in favour of the Plaintiffs. He has argued on the analogy of Sec. 53A of the Transfer of Property Act that Sec. 44 is not a weapon of offence but merely of defence. The 2nd paragraph of Sec. 44 runs as follows:—

“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.”

13. The relevant portion of Sec. 53A is to this effect:

“…. The transferor or any person claiming under him shall be debarred from enforcing against the transferee and any person claiming under him any right in respect of the property of which the transferee has taken or continued in possession.”

14. The language of the 2nd paragraph of Sec. 44 suggests that the transferee of the share of the dwelling-house has no title to joint possession or other common or part enjoyment of the house.

15. It is true that it takes away the right of the transferee to ask for joint possession but at the same time it seems to me that it does create a right in favour of the other co-owners of the dwelling-house who are affected by the sale. Mr. Jana has relied upon the decision in the case of Sujit Kumar Biswas v. Iswar Chandra Nandi(2) which lays down that the principle underlying Sec. 44 is that it is inequitable to permit a stranger to intrude himself upon the privacy of a joint Hindu family residence. If that be so, the co-sharers of the joint Hindu family residence who are affected by the sale to the stranger have been given a right under this section to ask for an injunction restraining the stranger purchaser from exercising any act of joint possession in respect of the joint family residence. I do not think that the language of Sec. 53A and the language of Sec. 44 of the Transfer of Property Act are analogous. The second point raised by Mr. Jana should accordingly be overruled.

16. For the foregoing reasons the decree of the lower Appellate Court is set aside and that of the Court of First Instance restored.

17. The cross-objection is dismissed.

18. In the circumstances of the case, there will be no order for costs either in the appeal or in the cross-objection.

19. Leave to appeal under cl. 15 of the Letters Patent is asked for and is refused.

N.D.R

Lal Behari Samanta v. Gourhari Dawn

Structured Summary of the Provided Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments (Mr. Chakraborty, supporting the plaintiffs)

Respondent's Arguments (Mr. Jana, supporting the respondent/defendant)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Lal Behari Samanta v. Gourhari Dawn

Comments