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Mohiddin Molla v. Jitendranath Karmakar And Others Opposite Parties.
Structured Summary of the Opinion
Factual and Procedural Background
This revisional application was filed by the defendant (petitioner Mohiuddin Molla) in the original partition suit, challenging an order dated 25-3-1974 of the learned Munsif which rejected the petitioner's application under Section 4 of the Partition Act.
The opposite party, plaintiff Jitendra Nath Karamkar, had filed a suit for partition against the petitioner and others. There was a preliminary decree for partition, and while proceedings for the final decree were pending the petitioner filed an application under Section 4 of the Partition Act. The learned Munsif rejected that application on two principal grounds: (1) that the entire suit property was not a dwelling house of the defendant's family; and (2) that a prior similar petition had been filed and rejected, making the subsequent application not maintainable. The petitioner moved this Court in revision challenging the propriety and validity of the Munsif's order. Counsel who appeared were Mr. Roy Chowdhury for the petitioner and Mr. Motilal for the plaintiff-opposite party.
Legal Issues Presented
- Whether the suit property qualified as a "dwelling house" of the undivided family for the purposes of Section 4 of the Partition Act, notwithstanding a minor portion being used as a shop.
- Whether the petition under Section 4 was maintainable despite a prior application having been filed and rejected for default (i.e., whether res judicata or related principles applied).
- Whether dismissal of a prior pre-emption suit (registered under a different Act) prevents filing an application under Section 4 of the Partition Act.
- Whether Order 9, Rule 9(1) read with Section 141 of the Civil Procedure Code (CPC) would bar the petitioner from filing the present application.
- Whether a single remaining co-sharer (if others have transferred their shares) can claim relief under Section 4 of the Partition Act.
Arguments of the Parties
Petitioner's Arguments (as presented by Mr. Roy Chowdhury)
- The learned Munsif acted beyond jurisdiction and committed material irregularity by failing to consider relevant materials essential to the determination of the Section 4 application.
- The learned Munsif acted illegally and with material irregularity in holding that the subsequent application under Section 4 was not maintainable.
Opposite Party's Arguments (as presented by Mr. Motilal)
- The presence of a shop-room in the premises means the property cannot be treated as a dwelling house for the purposes of Section 4.
- A prior application under Section 4 had been filed and rejected earlier, so the subsequent application was not maintainable (res judicata or similar principle).
- A previously filed suit for pre-emption (Title Suit No. 860 of 1958) was dismissed, which allegedly prevents the present application.
- Order 9, Rule 9(1) read with Section 141 CPC would debar the petitioner from filing the present application.
- If only one co-sharer with any subsisting interest remained in the property, that single co-sharer could not claim relief under Section 4; reliance was placed on Durgapada Pal v. Debidas Mukherjee (single Judge decision).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Dulal Chandra Chatterjee v. Gostha Behari Mitra, AIR 1953 Cal 259 | Principle that suspension of occupation, absence of owners, or tenancy does not make a house cease to be a dwelling house of the family. | The Court relied on this reasoning to reject the argument that a minor shop-room (or tenancy/absence) altered the character of the dwelling house; it supported the conclusion that the suit property remained a dwelling house. |
| Durgapada Pal v. Debidas Mukherjee, 77 Cal WN 734 : AIR 1974 Cal 14 | Single-Judge statement that Section 4 applies to a dwelling house owned by an undivided family and that, on the facts there, the property belonged solely to defendant No.1. | This decision was relied upon by the opposite party to argue that Section 4 did not apply where the property was owned solely by one person; the Court considered the authority but distinguished it in light of Division Bench precedent. |
| Botokrishna Ghose v. Akshoy Kumar Ghosh, AIR 1950 Cal 111 : 54 Cal WN 660 (Division Bench) | Division Bench principle that so long as a dwelling house has not been completely alienated to strangers, successive transfers by co-sharers do not alter its character as a dwelling house of the undivided family; remaining member(s) retain right to exclusive possession to the exclusion of stranger alienees. | The Court followed this Division Bench authority to hold that even if successive transfers occurred leaving one member with interest, that remaining member can claim relief under Section 4; the Court applied this to reject the argument that a single remaining co-sharer could not invoke Section 4. |
| Vaman Vishnu Gokhale v. Vasudev Morbhat Kale (referenced in Botokrishna Ghose) | Authority concerning complete alienation to strangers as a circumstance in which the character of the dwelling house may change. | Cited in the passage quoted from Botokrishna Ghose to illustrate that only when complete alienation to strangers occurs will the character of the dwelling house be altered; the Court used that reasoning to support the conclusion that partial transfers do not extinguish Section 4 rights. |
Court's Reasoning and Analysis
The Court reviewed the findings of the learned Munsif and analyzed both the factual record and applicable legal principles before reaching its conclusions. The reasoning proceeded in distinct steps:
-
Evaluation of the Munsif's treatment of the pleadings and factual record:
- The Court found that the learned Munsif did not pay adequate attention to the respective cases of the parties and wrongly construed the plaintiff's case.
- The plaint (paragraphs 1 and 8 and other averments) showed clearly and without ambiguity that the suit property was the dwelling house of the predecessor-in-interest of the petitioner and other defendants (except defendants 4 and 5), and that defendant No.3 was living in the suit property.
- There was no separate evidentiary contest about the character of the property; the Court therefore found the Munsif erred in his factual appraisal.
-
On whether the presence of a shop-room changed the character of the property:
- The Court examined the text of Section 4 of the Partition Act and cited Division Bench authority (Dulal Chandra Chatterjee) holding that temporary absence, tenancy, or a minor commercial use does not make a house cease to be a dwelling house.
- Applying that principle, the Court held that a minor portion used as a shop did not alter the character of the suit property as a dwelling house; therefore Mr. Motilal's contention that a shop-room converted the dwelling into non-dwelling failed.
-
On the effect of prior applications/suits and the application of res judicata or procedural bars:
- The Court examined the record of the earlier Section 4 application and found it was rejected for default because the defendant was not present; there was no decision on the merits. Consequently, res judicata could not apply to bar the subsequent application.
- Similarly, a prior pre-emption suit (Title Suit No. 860 of 1958) had been dismissed for default and not decided on merits; additionally it was brought under a different Act, so it did not preclude a Section 4 application.
-
On the applicability of Order 9, Rule 9(1) read with Section 141 CPC:
- The Court held that an application under Section 4 of the Partition Act cannot be regarded as a "proceeding" for the purposes of Section 141 CPC in the sense contended by Mr. Motilal.
- Even if the application were treated as registered in a Miscellaneous Case, there had been no default or dismissal on the merits of that Miscellaneous Case which would justify applying Order 9, Rule 9(1) and Section 141; therefore those provisions did not debar the petitioner.
-
On whether a single remaining co-sharer can claim under Section 4:
- The Court considered the single-judge decision relied upon by Mr. Motilal (Durgapada Pal) but preferred and followed the Division Bench authority in Botokrishna Ghose v. Akshoy Kumar Ghosh.
- Drawing on the Division Bench principle, the Court concluded that so long as the dwelling house has not been completely alienated to strangers, successive transfers by other co-sharers do not destroy the character of the dwelling house, and the remaining member(s) retain the right under Section 4.
- Applying that principle to the facts, the Court noted that at the time of institution there were more than one co-sharer among family members; the amendment showed defendant No.2 had sold her share to the plaintiff and was struck off, but the presence of remaining co-sharers entitled the petitioner to relief under Section 4.
Holding and Implications
Holding: The revisional application is allowed; the Rule is made absolute and the petitioner's application under Section 4 of the Partition Act is allowed.
Direct consequences and orders:
- The order of the learned Munsif dated 25-3-1974 rejecting the Section 4 petition is set aside.
- The learned Munsif is directed to pass necessary orders giving the petitioner an opportunity to buy the share he has claimed and to proceed according to law by giving necessary and proper directions in that behalf.
- The revisional application succeeds with costs; the records of the lower court are to be sent down as soon as possible.
Broader implications:
- The Court applied existing Division Bench authority to clarify that a minor commercial use (a shop-room) or successive transfers by other co-sharers do not automatically change the character of a dwelling house for Section 4 purposes, and that a remaining member (even if only one) may have rights under Section 4 so long as complete alienation to strangers has not occurred.
- The opinion does not purport to announce a new legal principle beyond applying and following cited authorities; its effect is to correct the lower court's factual and legal errors in this case and to direct further interlocutory action as described above.
Revision allowed.
1. This revisional application has been filed by the defendant of the original suit against an order passed by the learned Munsif on 25-3-1974 rejecting the petitioner's application under Section 4 of the Partition Act. The opposite party is opposing the application.
2. The opposite party Jitendra Nath Karamkar filed a suit for partition against the petitioner Mohiuddin Molla and others. There has been a preliminary decree for partition. Thereafter when proceedings were going on for final decree, the petitioner Mohiuddin filed a petition under Section 4 of the Partition Act. The plaintiff opposed and the learned Munsif found that the entire suit property was not the dwelling house of the defendant's family. It has also been held by the learned Munsif that as previously a petition was filed on similar ground and since it was rejected, the subsequent application under Section 4 of the Partition Act was not maintainable. On these grounds the defendant's petition was rejected. Against that order the petitioner has come up before this Court challenging the propriety and validity of the said order.
3. I have heard Mr. Roy Chowdhury appearing on behalf of the petitioner and Mr. Motilal for the plaintiff-opposite party.
4. Mr. Roy Chowdhury's contention is that the learned Munsif acted beyond jurisdiction and also with material irregularity for not considering the relevant materials essential for the determination of the application and in doing injustice to the party. It has also been contended that the learned Munsif also acted illegally and with material irregularity in holding that the subsequent application under Section 4 of the Partition Act filed by the petitioner was not maintainable.
5. On the question as to whether the suit property was not the dwelling house of the defendant's family, I find that the learned Munsif did not at all pay his attention to the respective cases of the parties. From the allegations made in paragraphs 1 and 8 of the plaint and also with reference to the other allegations made in the body of the plaint, it is quite clear and there is no ambiguity, that the suit property was the dwelling house of the predecessor-in-interest of the petitioner, the defendant No. 1 and the other defendants except the defendants Nos. 4 and 5. There is no doubt also that the defendant No. 3, the brother of the petitioner, was living in the suit property. In this case the parties did not adduce separate evidence regarding the character of the suit property. From the plaintiff's own admission it is quite clear that the learned Munsif did not look to the case of the plaintiff himself and that he wrongly construed the plaintiff's case.
6. In this connection Mr. Motilal has made an attempt to argue that when there is a shop room in the suit premises, the suit property cannot be held as the dwelling house. On this question there can be no doubt that only a minor part of the dwelling house is a shop room. The meaning of the dwelling house in Section 4 of the Partition Act is relevant. The relevant portion of Section 4 of the Partition Act runs as follows:—
“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.”
7. In this connection we should consider the decision of a Division Bench of this Court in the case of Dulal Chandra Chatterjee v. Gostha Behari Mitra, (AIR 1953 Cal 259). There we find the following:
“But assuming that the house concerned must be a residential house of the members of the family owning it. I am altogether unable to agree that any suspension of occupation or, for the matter of fact, the absence of the owners of the house therefrom or an occupation or terminable occupation by tenants, can have the effect of making the house cease to be a dwelling house.”
Further down we also get
… … … … … … …
“the mere grant of a tenancy cannot possibly have the effect of making the house which is otherwise a residential house of the members of the undivided family owning it, cease to be a dwelling house.”
8. It is clear, therefore, that to ascertain whether a house is a dwelling house or not, it has got to be considered how the house is being used or for what purpose the house is there. In the instant case a minor portion of the suit property constitutes a shop. But the admitted fact is that the defendant is the owner of the dwelling house inherited from his father and that his other co-sharers sold their shares to different persons. In my view, therefore, simply because there is a shop in the suit dwelling house it cannot be stated that the character of the dwelling house has been changed. I cannot, therefore, accept the contention of Mr. Motilal that due to the existence of a shop room the character of the suit property as dwelling house has been changed.
9. With regard to the finding of the learned Munsif that the defendant's application under Section 4 of the Partition Act was not maintainable as there was a similar application filed earlier though rejected, the order sheet shows that during the partition suit when the preliminary decree was yet to be passed, the petitioner filed an application under Section 4 of the Partition Act, but that was rejected as the defendant was not present when the matter was to be heard. There was, therefore, no decision of that application on merit. The application was rejected only for default of the petitioner. There can be no question of any application of the principles of res judicata. The view of the learned Munsif is clearly illegal and cannot be accepted.
10. Mr. Motilal has particularly urged that as there was a suit filed by the petitioner for pre-emption and as the said suit was dismissed, the present application under Section 4 of the Partition Act cannot be maintainable. I am afraid, this contention is unacceptable. There is no doubt that the petitioner filed a suit for pre-emption on the basis of a different Act and that was registered as Title Suit No. 860 of 1958. That suit was dismissed for default. No decision on merit again was there. Anyway, that suit was on the basis of a different Act and the present application is one under Section 4 of the Partition Act. Again there can be no question of res judicata or the like principles.
11. It has next been argued by Mr. Motilal that Order 9, Rule 9(1) read with Section 141 of the CPC will be applicable in the present case and that the said provisions will debar the petitioner from filing the present application. I must say that the contention is based upon misconception of law. First of all an application under Section 4 of the Partition Act cannot be stated to be a proceeding as contemplated under Section 141 of the CPC. Secondly, even if it is assumed that it is a proceeding because the application was registered as a Miscellaneous Case, still as there was no default or dismissal of the application in the Miscellaneous Case, there can be no occasion for application of Order 9, Rule 9(1) and Section 141 of the CPC. I, therefore, cannot accept the argument advanced by Mr. Motilal.
12. Lastly, Mr. Motilal has made an attempt to argue that the application under Section 4 of the Partition Act is not maintainable because the defendant-petitioner who filed that application was the only co-sharer having any subsisting interest in the suit property and, therefore, if there is only one co-sharer having any interest in the property, he cannot claim any relief under Section 4 of the Partition Act. Mr. Motilal's argument is that if there be more than one co-sharers having subsisting interest in the suit property, then one of them is entitled to claim the relief. In this connection he wants to rely upon a decision of the single Judge of this Court in Durgapada Pal v. Debidas Mukherjee reported in 77 Cal WN 734 : (AIR 1974 Cal 14) Mr. Motilal relies upon the following portion of the judgment:
“It would appear from the facts of this case that the suit property at the time of the institution of the suit did not belong to any undivided family but it be longed to a person, the defendant No. 1. In my opinion, the provision of Section 4 applies to a dwelling house owned by an undivided family with members who are its owners in some share. In the facts of this case, the suit property is owned solely by the defendant No. 1 and not by an undivided family.”
13. The learned Judge in this case has referred to the case of Botokrishna Ghose v. Akshoy Kumar Ghosh reported in AIR 1950 Cal 111 : 54 Cal WN 660. That is a Division Bench decision of this Court. I quote the relevant portion as follows:—
“And so long as the dwelling house has not been completely alienated to strangers, as was the case in Vaman Vishnu Gokhale v. Vasudev Morbhat Kale, successive transfers by other co-sharer members of the family do not alter the factual position in this respect, because the remaining member or members of the family having the right to hold exclusive possession to the exclusion of the stranger alienees. So long as the situation lasts, the dwelling house, in our opinion, continues to be a dwelling house belonging to an undivided family.”
14. From the reading of this decision particularly the paragraph just quoted it is quite clear that if after several transfers by other co-sharer there remains only one member of the family having interest in the suit property that one member will have the right under Section 4 of the Partition Act. It has been clearly stated as noted above that the remaining member or members of the family will have that right. If there is a single co-sharer owner of the joint family, he will have the right to exert his claim and even if there be more than one co-sharer they will also have the same right. Following this Division Bench decision there can be no doubt, that even if at the time of institution of the suit there is one member of the undivided family having any interest in the suit property which is the dwelling house of the undivided family, he shall have the right under Section 4 of the Partition Act. I cannot, therefore, accept Mr. Motilal's contention as urged before me.
15. Moreover, in the present case I find from the amendment of the plaint that the defendant No. 2 who was also a co-sharer having interest in the suit property at the time of institution of the suit, sold off her share to the plaintiff and her name in the category of the defendant was struck off.
16. At the time of institution of the suit, it is evident, there were more than one co-sharer who were the members of the family of the original owner. The last point urged by Mr. Motilal is also unacceptable. No other point was raised on behalf of the parties.
17. In view of my discussions above, I hold that the order of the learned Munsif below is liable to be set aside. I further find that the learned Munsif ought to have allowed the petitioner's application under Section 4 of the Partition Act. The petitioner's contentions are accepted.
18. In the result, the revisional application succeeds and the Rule is hereby made absolute with costs. The petitioner's application under Section 4 of the Partition Act stands allowed. The learned Munsif will now pass necessary orders giving an opportunity to the petitioner to buy the share he has claimed and proceed according to law by giving necessary and proper directions in that behalf.
19. Send down the records of the lower Court as quickly as possible.
20. Revision allowed.
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