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Santosh Kr. Mitra v. Kalipada Das And Others

Calcutta High Court

Dec 4, 1980

Judgment

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Factual and Procedural Background

These two appeals arise from a common judgment disposing of Misc. Case No. 41 of 1962 and Misc. Case No. 10 of 1963 in Title Suit No. 34 of 1959 before the 6th Court of the Subordinate Judge at Alipore. The two Miscellaneous Cases were independent applications for pre-emption under Section 4 of the Partition Act.

The petitioner in Misc. Case No. 41 of 1962 was Sm. Panchanani Dasi (defendant No. 4 in the title suit). The petitioner in Misc. Case No. 10 of 1963 was Kalipada Das (defendant No. 3). Both petitioners sought to purchase a share in dwelling-house premises (Nos. 27/1A, Srish Chowdhury Lane, and 6A, Tarak Bose Lane) that they alleged formed part of a joint family dwelling, the share having been transferred by the original plaintiff Monmoth (Manmoth) Nath Das to Santosh Kumar Mitra (a stranger to the family).

Santosh Kumar Mitra opposed the applications, contending that the property was not a joint family dwelling house, that the family never lived there (it had been let out to tenants), and therefore Section 4 of the Partition Act did not apply. The Subordinate Judge found that the property was a dwelling house of an undivided family, that two co-sharers (including Kalipada Das) were living there, and allowed Kalipada's application (Misc. Case No. 10 of 1963). The Subordinate Judge dismissed Panchanani Dasi's application (Misc. Case No. 41 of 1962) on the basis that she had been living at Entally since her marriage and had ceased to be a member of the family for the purposes of Section 4.

Santosh Kumar Mitra and Panchanani Dasi each appealed: Santosh appealed the order allowing Kalipada's application; Panchanani appealed the dismissal of her own application. The High Court/single bench (B.C. Chakrabarti, J., with Anil K. Sen, J. concurring) determined the appeals.

Legal Issues Presented

Whether Section 4 of the Partition Act is applicable where the transferee of a share in a dwelling-house has not personally instituted a suit for partition (i.e., whether the provision applies only where the transferee sues for partition).
Whether the disputed property qualifies as a "dwelling house belonging to an undivided family" within the meaning of Section 4 of the Partition Act, in circumstances where the house had long been let to tenants and some co-sharers did not continuously reside there.
Whether a co-sharer who has married and gone to live in her husband's house (specifically, Panchanani Dasi) is precluded from seeking relief under Section 4 by reason of her marriage and relocation.
Whether long-term letting of a house to tenants constitutes cessation of the property's character as a family dwelling house for the purposes of Section 4.

Arguments of the Parties

Appellant Santosh Kumar Mitra (opponent of the pre-emption applications)

Section 4 of the Partition Act is not applicable on its own terms to the present case (it was argued that Section 4 applies only where the transferee himself sues for partition).
In any event, the disputed property is not a dwelling house belonging to an undivided family because the premises had been let out to tenants for an extended period and family members did not reside there continuously.

Petitioners (Panchanani Dasi and Kalipada Das)

The disputed properties form part of the same house and constituted the joint family dwelling house of Binodini Dasi and Tinkari Dasi, with shares passing by gift and sale among family members.
Monmoth (original plaintiff) transferred his share to Santosh Kumar Mitra, a stranger to the family; accordingly, petitioners (as co-sharers) sought to purchase the transferred share under Section 4 of the Partition Act by paying the consideration.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
AIR 1949 Cal 245	In a partition suit the distinction between plaintiff and defendant is not decisive; a party may be both plaintiff and defendant for the purposes of partition litigation.	The court relied on this to reject the submission that Section 4 applies only where the transferee personally sues for partition: Santosh was substituted as plaintiff and thus was "suing for partition."
Iqbal Uddin v. Ramnath, AIR 1935 All 894	Held that a hut capable of being used as a dwelling house but not so used for many years (including at the time of S.4 application) was not within the scope of Section 4.	The court noted this authority but stated it conflicts with the view taken by the Calcutta High Court and therefore did not accept it as determinative in the present case.
Manicklal v. Gouri Sankar, AIR 1968 Cal 245	Distinguished between distinct blocks of a house; a portion never used as residential and not necessary for convenient user of family portion is not a dwelling house; but even a tenanted portion of the block used by the family can be part of the dwelling house.	The court cited this to support the proposition that a tenanted portion can still be part of a family dwelling house where other parts are used as residence.
Durgapada v. Debidas, AIR 1974 Cal 14	Where co-sharers did not live in the property except for temporary/stipulated purposes (e.g., visits for paddy collection, festival), the property could not be treated as a family dwelling house.	The court acknowledged the decision but used it to delineate that a "dwelling house" connotes a more permanent abode; it was considered but distinguished on facts here.
Mohinddin Molla v. Jitendra Nath, AIR 1976 Cal 288	Even if at the time of suit there is only one member of the undivided family in actual occupation of the dwelling house, that member has the right to apply under S.4.	Applied: the court relied on this to hold that Kalipada Das, who had resided in the house for 7–8 years prior to examination, had the right to apply under S.4.
Botokrishna v. Akshoy Kumar, 54 Cal WN 660 : AIR 1950 Cal 111	The expression "undivided family" in the context of a dwelling house means a family not divided qua the dwelling house; the undivided character of the house imparts the family its undivided character for Section 4 purposes.	The court relied on this interpretation to conclude that so long as the dwelling-house has not been completely alienated to strangers and family members have not divided qua the house, a member can seek relief under S.4.
Monomohan v. Usharani, AIR 1979 Cal 79	Possession and enjoyment of a dwelling house by family members supports the undivided character of the house (cited in support of Botokrishna).	Used illustratively (parenthetical citation) to support the Botokrishna principle that the house's undivided character matters.
Dulal Chandra v. Gosthabehari, AIR 1953 Cal 259	Suspension of occupation, absence of owners, or terminable occupation by tenants does not by itself make a house cease to be a dwelling house.	The court relied on this to hold that letting the house to tenants does not automatically remove its character as a family dwelling house unless there is proof of intention to abandon it permanently.
Satyendu v. Amarnath, AIR 1964 Cal 52	Division Bench held that the mere fact that a major part of the house was let out to tenants did not prima facie remove the case from Section 4's operation.	Relied upon: the court treated this as authority that long-term letting is inconsequential unless there is evidence of intention to abandon residence; supported allowing the S.4 applications.
Bhagirath v. Afaq Rasul, AIR 1952 All 207	Even if a house is in disrepair and not actually used as a dwelling, it remains a family residential house if members intend to use it as such when convenient.	Quoted for the proposition that intention to use the house as a dwelling is an important criterion; applied to conclude intention to use existed here.
AIR 1936 Bom 197 (Bombay High Court decision)	Held that a female of an undivided family marrying and going to live in her husband's house prima facie gives up intention of residing in the old house and is no longer a member of the family for the purposes of Section 4.	The Subordinate Judge relied on this decision to dismiss Panchanani's application; the High Court rejected its applicability and approach in this case, treating that view as dissentible and noting subsequent authority that rejects that rule.
Rukia Bi v. Rajk Bibi, AIR 1963 Mad 298	Held (in a Mohammedan context) that under Section 4 it is not necessary that the cosharer applying for relief should continue to be a member of the family in residence; a married cosharer living in another household could still maintain an application under S.4.	Applied: used to repudiate the Bombay decision's effect and to hold that Panchanani, though married and living separately, could claim relief under S.4.

Court's Reasoning and Analysis

The court proceeded through a concise multi-step analysis based on the evidence and authorities cited:

Applicability of Section 4 where transferee had not personally sued:
Legal point as argued by Santosh:

The appellant argued Section 4 applies only where the transferee sues for partition. The court examined the object of Section 4 (to preserve the integrity of the family dwelling house) and noted that Courts have preferred a liberal construction to promote that object. Citing AIR 1949 Cal 245, the court observed that categorisation as plaintiff or defendant in a partition suit is not decisive because a party may be both plaintiff and defendant. Importantly, Santosh had been substituted in place of the original plaintiff Monmoth Nath Das, and thus Santosh was effectively suing for partition. Consequently, the court rejected the contention that Section 4 could not be attracted because the transferee had not himself sued.
Whether the property was a "dwelling house belonging to an undivided family":
Factual findings relied upon:

There was no dispute the property was a house and that it was originally occupied by Binodini and Tinkari; it had later been let out. Witnesses (P.W.1 Promotha Nath Das, P.W.2 Dibakar Bose, P.W.3 Panchanani Dasi) provided evidence that the house had been used as the family dwelling and that some co-sharers (e.g., Kalipada Das) were living there prior to litigation. The court found that the disputed property was at one time the family dwelling, that it had been let out for a considerable period (including tenancy by the appellant Santosh), and that at least two co-sharers had been in occupation for some years before the litigation commenced.

Legal analysis on letting and continued character:

The court considered authorities holding that mere suspension of occupation or letting to tenants does not necessarily make a house cease to be the family dwelling (Dulal Chandra v. Gosthabehari; Satyendu v. Amarnath). It emphasized that letting is inconsequential unless the owners so let it with the intention of never returning to use it as a residence. The court found no evidence of such an intention here; on the contrary, some co-sharers had returned to reside. The court further relied on Botokrishna v. Akshoy Kumar for the meaning of "undivided family" in this context (undivided qua the dwelling house) and Mohinddin Molla v. Jitendra Nath for the proposition that even a single member in occupation may maintain an S.4 application. Applying these principles to the facts, the court concluded that the property retained its character as a dwelling house of an undivided family and that Kalipada had the right to seek relief under Section 4.
Right of a married female co-sharer (Panchanani Dasi) to apply under Section 4:
Subordinate Judge's approach and High Court analysis:

The Subordinate Judge dismissed Panchanani's application relying on a Bombay High Court decision (AIR 1936 Bom 197) which held that a female marrying and moving to her husband's house prima facie gives up the intention to reside in the ancestral house and is no longer a member for Section 4 purposes. The High Court rejected that approach. It observed that "undivided family" in Section 4 means not divided qua the dwelling house (per Botokrishna) and that being married and living elsewhere does not automatically extinguish a co-sharer's right to claim relief where the dwelling house remains undivided.

The court relied on Rukia Bi v. Rajk Bibi (which dissented from the Bombay view) and noted that post-Hindu Succession Act changes the position of Hindu females; the High Court further noted that its own decision in Satyendu v. Amarnath found the Bombay view unacceptable. On this basis the court held that Panchanani's claim could not be defeated merely because she had married and was living in her husband's house; she remained entitled to apply under Section 4.
Conclusion of entitlement and procedural direction:
The court held that both Kalipada Das and Panchanani Dasi had sustainable claims under Section 4. It therefore directed that the learned Court below should now proceed according to the procedure laid down in sub-section (2) of Section 3 of the Partition Act (i.e., valuation and direction for sale to the purchasing co-sharer as appropriate).

Holding and Implications

Holding:

Appeal No. 237 of 1964 (arising out of Misc. Case No. 10 of 1963) is dismissed; Appeal No. 553 of 1964 (arising out of Misc. Case No. 41 of 1962) is allowed.

Consequences and immediate implications:

Both Kalipada Das and Panchanani Dasi succeeded in establishing their right to relief under Section 4 of the Partition Act.
The learned Court below is directed to proceed according to sub-section (2) of Section 3 of the Partition Act (i.e., to make valuation and give directions for sale of the transferee's share to the purchasing co-sharer as the court thinks fit).
There will be no order as to costs. Preparation of a formal decree in the appeals was dispensed with. The record and order were to be sent down to the Court below forthwith.

The opinion sets out these direct effects on the parties and gives procedural directions to the subordinate court. The opinion does not purport to announce any broader novel precedent beyond applying and reconciling existing authorities as described above.

Show all summary ...

B.C Chakrabarti, J.:— These two appeals are directed against a common judgment disposing of Misc. Case No. 41 of 1962 and Misc. Case No. 10 of 1963 of the 6th Court of learned Subordinate Judge at Alipore.

2. The two Misc. Cases arose out of two independent applications for preemption under S. 4 of the Partition Act arising out of Title Suit No. 34 of 1959 of the said Court.

3. Sm. Panchanani Dasi defendant No. 4 in the said suit was the petitioner in Misc. Case No. 41 of 1962. The other Misc. Case No. 10 of 1963 was filed by Kalipada Das, defendant No. 3.

4. The case of the two petitioners are practically identical. Their case is that the disputed properties namely premises No. 27/1A, Srish Chowdhury Lane, and 6A, Tarak Bose Lane form part of the same house and was the joint family dwelling house of Binodini Dasi and Tinkari Dasi. Binodini made a gift of her 8 annas shares in favour of Manmoth (the original plaintiff) who possessed the same jointly with his sisters, Shyamasundari, Krishnabhamini, Durgabala and Panchanani. Shyamasundari, Krishnabhamini and Durgabala gifted away their 6 annas shares to the plaintiff and defendants Nos. 1 to 3 by a deed of gift dated 18-7-1957. Defendants Nos. 1 and 2 sold away their shares to the sons of defendant No. 4, while the plaintiff Manmoth Nath Das sold his 9 annas 6 paise share of the joint family dwelling house to Santosh Kumar Mitra on 27-4-62. The petitioner in Misc. Case No. 41 Panchanani Dasi and the petitioner in Misc. Case No. 10 of 1963 Kalipada Das prayed for purchasing the share transferred by the plaintiff to Santosh Kumar Mitra who was a stranger to the family, on payment of the consideration under S. 4 of the Partition Act.

5. Santosh Kumar Mitra opposed both the cases. His contention in the Court below was that the disputed property was not the joint family dwelling house of Tinkari and Binodini or for the matter of that their successors, that they never lived in the suit premises which were all through let out to tenants and that the provisions of Section 4 of the Partition Act were not applicable to the case.

6. Both parties adduced evidence. The learned Subordinate Judge upon a consideration of the evidence found that P.W 1 Promotha Nath Das and defendant No. 3 Kalipada Das are living in the disputed house, that the disputed house is a dwelling house belonging to the undivided family and that the fact that the house was let out for more than 20 years was not a matter of much moment. On such findings the learned Subordinate Judge allowed Misc. Case No. 10 of 1963 arising out of the application of Kalipada Das. But with regard to the other Misc. case at the instance of Panchanani Dasi the learned Subordinate Judge found that she has been living at Entally since her marriage and ceased to be a member of the family. In that view of the matter the other Misc. case namely Misc. Case No. 41 of 1962 was dismissed on contest.

7. Santosh Kumar Mitra and Panchanani Dasi preferred the present appeals, one against the order allowing the prayer of petitioner Kalipada Das and the other dismissing the prayer of Panchanani Dasi.

8. Mr. Nirendra Krishan Mitra appearing in support of the appellant Santosh Kumar Mitra urged two points in support of the appeal namely:

(1) that Section 4 of the Partition Act on its own terms is not applicable to the case and

(2) that at any rate the property in dispute is not a dwelling house belonging to an undivided family.

9. Section 4 of the Partition Act provides 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, 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. Let us assume for the present and assuming as such that the disputed property is a dwelling house belonging to an undivided family, it was argued that this section applies only where the transferee sues for partition and not otherwise. The object of Sec. 4 of the Partition Act is 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. In order to achieve this object the Courts have always preferred to put a liberal construction upon the Partition Act and to interpret its provisions in such a way as would promote and fulfil the said object. In a suit for partition the question as to who is arrayed in the category of plaintiff and who in the category of the defendants is not of importance for a party in partition suit whether a plaintiff or a defendant is at the same time a plaintiff as well as a defendant (AIR 1949 Cal 245). Therefore the contention that Section 4 cannot be attracted unless the transferee himself sues for partition does not seem to hold good. In this particular case however the question has lost importance in view of the fact that the original plaintiff Monmoth Nath Das was the transferor from whom the appellant Santosh Kumar Mitra purchased a share of the dwelling house. Thereafter Santosh Kumar Mitra was substituted in place of Monmoth Nath Das. He is therefore transposed in the category of the plaintiff and he is certainly a person suing for partition. That being the position the first objection that Santosh Kumar Mitra not having sued for partition, Sec. 4 would have no application to this case, has no merits.

10. The next point for consideration is whether the disputed property is a dwelling house of an undivided family as contemplated by Section 4 of the Partition Act. There is no dispute that the property in suit is a house property. There is also no dispute that it was originally in the occupation of the then owners Binodini and Tinkari. Subsequently — it is not very clear from the evidence at that point of time — the house was let out. There also is no dispute that one of the co-sharers namely Panchanani, since after her marriage has been residing elsewhere at Entally. The appellant Santosh Kumar Mitra who was a tenant and has since acquired a share in the property is a stranger to the family. The question is whether in such circumstances the property can be said to be a dwelling house belonging to an undivided family so as to attract the provisions of S. 4 of the Partition Act.

11. P.W 1, Promotha Nath Das is a brother of Panchanani. He says that the disputed house is the undivided dwelling house of the family, that during the war period the disputed house was let out and that for the last 7-8 years he has been living in the suit house along with Kalipada Das, another admitted co-sharer. P.W 2 Dibakar Bose is a neighbour. He says that the parents of Monmotho Nath Das and Kalipada Das lived in the disputed house and the marriage ceremonies of their sons and daughters took place there and that it was let out about 20 years ago From the cross-examination it appears that he has made some confusion about the period. But he is specific, that it was used as a family dwelling house until it was let out P.W 3 is Panchanani Dasi, one of the applicants under Section 4. She says that the disputed, property, is their dwelling house, that she was married in that house and her sons were also born there. On behalf of the opposite party Monmotho Nath Das says that the disputed house was let out to provide a source of income and that thereafter they moved to Gopalpur, never to return to the house. This was, according to the witness about 40 years ago. He also admits in cross-examination that Kalipada at present fives in the disputed house.

12. From the evidence thus on record it follows that the disputed property certainly was at one time used as the dwelling house of the family and that the house was let out to tenants for a considerable period, the appellant Santosh Kr. Mitra being one of them and that two of the co-sharers have been in occupation of the house for some years before the litigation commenced. Since the house was not used as a dwelling house by the co-sharers for sometime it was argued on the authority of the case of Iqbal Uddin v. Ramnath, AIR 1935 All 894 that the house is not a dwelling house within the scope of S. 4. This was a case of a hut which was capable of being used as a dwelling house but not so used for a number of years — not even at the time when the application under S. 4 was preferred. This decision however is in conflict with the view taken by our High Court.

13. In the case of Manicklal v. Gouri Sankar, AIR 1968 Cal 245, the question arose in connection with a house property having two distinct blocks — A and B. The owners lived in a portion of Block-B and let out the rest of Block-B and the whole of Block-A to tenants. In a suit for partition by a purchaser from one of the owners, the defendant applied for relief under Section 4 of the Partition Act. It was found that Block-A which was never used as a residential house and which was not necessary for the convenient user of Block-B was not a dwelling house, but that even the tenanted portion of Block-B was a part of the dwelling house.

14. Another case (Durgapada v. Debidas. AIR 1974 Cal 14) was referred to on behalf of the appellant, in support of his contention that in the facts and circumstances of the case the property could not be called a dwelling house. There the alleged dwelling-house was situate in a village. The co-sharers who were separate in mess did not live there. Whenever they used to come to the village from different places for purpose of collection of paddy and for attending Kalipuja held in the adjoining plot, they used to stay in the property. It was held that the property could not represent a dwelling house. The reason behind the decision was that a dwelling house connotes to some extent a permanent abode of the undivided family where such family resides or intends to reside generally and not a house intended for a stray or temporary residence for a specified purpose.

15. In a single Bench decision of this Court in the case of Mohinddin Molla v. Jitendra Nath, AIR 1976 Cal 288, it was observed 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 to file an application under S. 4 of the Partition Act. In the instant case before us there is clear evidence that Kalipada Das has been residing in the house for 7-8 years before 1964 when he was examined as a witness. This takes us to a period prior to the purchase by the appellant Santosh Kr. Mitra. Therefore there can be no doubt that he has a right to file an application under S. 4.

16. In the case of Botokrishna v. Akshoy Kumar, 54 Cal WN 660 : (AIR 1950 Cal 111), the expression ‘undivided family’ has been interpreted to mean a family not divided qua the dwelling house; the emphasis is on the undivided character of the house and it is this attribute of the house which imparts to the family, its character of an undivided family. So long as the dwelling house has not been completely alienated to a stranger, the actual position is that it is still an undivided family house, the possession and enjoyment of which are conferred on the members of the family (see Monomohan v. Usharani, AIR 1979 Cal 79). In the case before us there is no dispute that the members of the family did not separate and were not divided qua the dwelling house. Consequently it seems that a member of such family is entitled to ask for relief under Section 4 of the Partition Act.

17. The only point on which the claim is sought to be resisted is that a part of the house, may be a considerable part of it has been let out to tenants. The question is whether this amounts to cessation of the house being a family dwelling house. In the case of Dulal Chandra v. Gosthabehari, AIR 1953 Cal 259, it was observed that any suspension of occupation or for the mattes of that, the absence of the owners of the house therefrom or an occupation ox terminable occupation by tenants, cannot have the effect of making the house ceasing to be a dwelling house. In the case of Satyendu v. Amarnath, AIR 1964 Cal 52, a Division Bench of this Court has held that the mere fact that a major part of the house was let out to tenants did not prima facie take the case out of the operation of S. 4 of the Partition Act. Relying on these decisions we may justifiably hold that the fact that the premises was let out to tenants by itself is inconsequential unless it can be shown that it was so let out by the owners with the intention of never returning to it or using it as a residential house. From the evidence on record such an intention cannot be spelt out. On the other hand, it will bear repetition that some of the cosharers have come back to reside in the house. The intention to use the house as dwelling house is an important criterion in determining whether a house continues to be a dwelling house of the family or not in the case of Bhagirath v. Afaq Rasul, AIR 1952 All 207, it was observed that even though the house may fall into a state of complete disrepair and not actually in use as a dwelling house, it will nevertheless continue to be a family residential house if the members of the family intend to use it as such as soon as they can conveniently do so.

18. All these tests are satisfied in this case and we do not see why the claim of Kalipada Das for relief under S. 4 of the Partition Act should not be allowed.

19. As regards Panchanani Dasi the learned Subordinate Judge has found against her relying upon a decision of the Bombay High Court (AIR 1936 Bom 197). This decision lays down that a female of an undivided family marrying and going to live in her husband's house prima facie gives up her intention of residing in the old house belonging to the family and being married is also no longer a member of the family and as such is not entitled to the benefit of Sec. 4 of the Partition Act. We have already indicated that undivided family has been used in Sec. 4 of the Partition Act to mean a family not divided qua the dwelling house. It does not mean a joint family as commonly understood. Therefore from the fact that one of the cosharers being married has been residing in her husband's house, it does not follow that she has lost her right to claim relief since the dwelling house remains undivided of which she is a cosharer. The Bombay case relied on by the learned Subordinate Judge came to be considered in me case of Rukia Bi v. Rajk Bibi (AIR 1963 Mad 298), and the view taken in the Bombay case was dissented from. This was a case where reliefs were sought Job by a Mohammedan female marrying into another family. It was held that under Section 4 it is not necessary that the cosharer applying for relief should continue to be a member of the family. Where therefore, there is no doubt that the house is a family dwelling house and that the petitioner is a cosharer who is entitled to a share in that house on partition even though married and living in her husband's house would be entitled to maintain an application under S. 4 of the Partition Act. In the case before us the claim of Panchanani Dasi cannot be defeated in view of the decision in the Bombay case. Apart from anything else that was a case before the commencement of the Hindu Succession Act. The position of Hindu female even though married into another family has since considerably changed and she is entitled to claim relief on partition of the dwelling house. The view expressed by the Bombay High Court in the case relied on by the learned Subordinate Judge came to be considered by this High Court also in the case of Satyendu v. Amarnath (AIR 1964 Cal 52) (supra) but the view was found unacceptable. In that view of the matter we are unable to sustain the order of dismissal passed in Misc. Case No. 41 of 1962 filed at the instance of Panchanani Dasi. Her claim is sustainable in law and consequently her application also must succeed.

20. The position therefore now is that two of the cosharers namely Kalipada Das and Panchanani Dasi have severally applied for leave to buy and the claim of both is sustainable. In that view of the matter Appeal No. 237 of 1964 arising out of Misc. Case No. 10 of 1963 is dismissed and the Appeal No. 553 of 1964 arising out of Misc. Case No. 41 of 1962 is allowed. Both Panchanani and Kalipada having succeeded in establishing their right to relief under S. 4 of the Partition Act, the learned Court below should now proceed according to the procedure laid down in sub-section (2) of Section 3 of the Partition Act. The appeals are thus disposed of. There will be no order for costs.

Preparation of formal decree in the appeals is dispensed with.

Let this order along with the records be sent down to the Court below forthwith.

Anil K. Sen, J.:— I agree.

Order accordingly.