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Mrs. Sushila Baral v. John Bunyan Baral And Others
Summary of Opinion by Panigrahi, C.J. (with concurring note by P.V.B. Rao, J.)
Factual and Procedural Background
Plaintiffs 1 to 4 are heirs of Shyam Sundar Baral. In 1936 Shyam Sundar and his two brothers, Samuel and Daniel, sued for partition of a dwelling house on plot No. 280 (Title Suit No. 332/89/57 of 1936) and obtained a partition decree dated 3-10-1936 dividing the house into two portions: X (eastern) — one-third share of Shyam Sundar (the plaintiffs' father), and Y (western) — the share of Samuel and Daniel jointly.
Samuel died in 1944 leaving a widow, Kadambini, who in 1947 executed sale deed Ex. 1 purporting to convey Samuel's entire interest in the dwelling to plaintiffs 1 and 2; under applicable succession law (Section 106, Indian Succession Act, as the parties are Christians) Kadambini was entitled to only one-half of Samuel's interest. Consequently Ex. 1 conveyed only Kadambini's half-share; plaintiffs acquired that half by purchase and also inherited the balance 2 annas by succession.
Daniel later died leaving a deed of gift in favour of the appellant Sushila (Daniel's widow), who is defendant 1 in the present suit. Plaintiffs filed the present suit seeking partition and separate possession of the entire 8 annas interest in the house (claiming they had purchased it under Ex. 1). Kadambini is defendant 2.
At trial several points were raised by defendants. The principal point on appeal is whether defendant 1 (the appellant), who offered to purchase the 4 annas interest acquired by plaintiffs from Kadambini, was entitled to relief under Section 4 of the Partition Act. The Courts below denied relief to the appellant on the ground that plaintiffs, having become co-sharers on Samuel's death, remained members of the family and were not strangers entitled to be ousted under Section 4. The defendant (appellant) appealed against that finding.
Legal Issues Presented
- Whether defendant 1 (the appellant) is entitled to relief under Section 4 of the Partition Act when a share in a dwelling house belonging to an undivided family has been transferred to a person who is not a member of such family.
- Whether the property in question remained a "dwelling house belonging to an undivided family" (i.e., undivided qua the dwelling house) at the time of the transfer.
- Whether the plaintiffs, who acquired part interest by purchase from Kadambini and part by succession, should be treated as members of the undivided family for the purposes of Section 4 (i.e., whether inheritance alone makes them members of the family to whom the dwelling house belongs).
- Whether a dwelling house ceases to be such for the purposes of Section 4 if a portion of it has been let out to tenants.
Arguments of the Parties
Appellant's Arguments (Mr. Das Gupta)
- The plaintiffs cannot be regarded as members of an undivided family because they had already taken their shares in an earlier partition suit (1936) and thus had ceased to be members of the family of Daniel and Samuel in relation to the house.
- Accordingly, the appellant (a member of the family through marriage to Daniel) is entitled to relief under Section 4, and may purchase the transferee's share.
Respondents' Arguments (Mr. Misra)
- Irrespective of the earlier partition suit, the plaintiffs became members of the family in respect of the suit dwelling house when Samuel died and they acquired by succession a share in the property; therefore they are not outsiders under Section 4.
- A house ceases to be a "dwelling house" within Section 4 if part of it has been let to tenants (relying on Chatterji v. Maung Mye, AIR 1940 Rang 53).
- The status of the family at the time of the suit (whether divided or undivided) should be examined to determine plaintiffs' entitlement.
- An additional contention (raised for the first time in this Court) was that Samuel and Daniel themselves were divided and thus Section 4 could not apply; counsel sought permission to read evidence in support of that contention.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sultan Begum v. Debi Prasad, 30 All 324 (Full Bench, Allahabad) | Established that the object of Section 4 is to prevent an outsider transferee from forcing entry into a dwelling house in which other members of the transferor's family have a right to live; "undivided family" means undivided qua the dwelling house. | The Court regarded this Full Bench decision as correctly stating the legislative policy and followed it as the guiding principle on the meaning of "undivided family" in Section 4. |
| Nil Kamal v. Kamakshya Charan, AIR 1928 Cal 539 | Observation (by Mukerji, J.) that "family" should be given a liberal, comprehensive meaning and that ownership (not actual occupation) brings Section 4 into play. | The Court cited Mukerji, J.'s observations approvingly for the proposition that ownership of the dwelling house by an undivided family is the operative fact, not mere occupation, and that a person is not ipso facto a family member by inheritance alone. |
| Babulal Tiwari v. Hulla Mallah, AIR 1938 Pat 13 | Recognised the general principle underlying Section 4 (as referred to in argument). | Referenced as one of the cases where the principle protecting family dwelling houses against outsider transferees was recognised. |
| Bhuban Mohan Guha v. Brojendra Chandra, AIR 1941 Cal 311 | Recognised the principle that Section 4 protects family dwelling houses from outsider transferees. | Cited by counsel and noted by the Court as part of the body of decisions following Sultan Begum. |
| Chatterji v. Maung Mye, AIR 1940 Rang 53 (single judge) | Held that "dwelling house belonging to an undivided family" should be read as "family dwelling house" (a narrower meaning); judge suggested tenancy might remove the character of a dwelling house for Section 4. | The Court rejected this restricted reading and observed no reasons were given in that decision for reading "family dwelling house" into the Section; the Court declined to accept that letting part of a house destroys its character as a dwelling house under Section 4. |
| Khirode Chandra Ghoshal v. Saroda Prosad Mitra, 12 Cal LJ 525 | Held that the word "family" cannot be exhaustively defined and should be read in a liberal sense. | The Court relied on this decision to counter the Rangoon case and to support a liberal construction of "family" and to reject the narrower "family dwelling house" reading. |
| Wilson v. Cochran, (1869) 98 Am Dec 553 | Dictum that "family embraces a collective body of persons living together in one house or within the curtilage." | The Court quoted this dictum (as relied on by Mukherji, J.) to explain that "family" includes persons related in blood who live in one house or under one head or management; but stressed such persons must live together to constitute a family in the sense used in Section 4. |
| Abinash Chandra v. Kamala Devi, AIR 1953 Pat 344 | Single-judge decision of Patna High Court following the Rangoon decision's approach. | The Court noted this decision followed the Rangoon view but observed there was very little discussion supporting that narrower interpretation. |
| Mantripragada Siva Ramayya v. Kapa Venkata Subamma, AIR 1930 Mad 561 | Followed the Full Bench in Sultan Begum and 12 Cal LJ 525; principle that family should have remained undivided qua the dwelling house at the time of the transfer. | Quoted by the Court as consistent with its view that the relevant test is whether the dwelling house remained undivided qua that house at the time of transfer. |
Court's Reasoning and Analysis
The Court began by identifying the statutory prerequisites of Section 4 of the Partition Act: (1) the suit must relate to a dwelling house; (2) the house must have belonged to an undivided family; and (3) the interest must have been transferred to a person who is not a member of such family. The decisive inquiry was whether, in respect of the suit dwelling house, the family remained undivided (i.e., undivided "qua the dwelling house") and whether the plaintiffs were members of that family at the time of the transfer.
The Court accepted and followed the Full Bench decision in Sultan Begum v. Debi Prasad that Section 4 aims to prevent an outsider transferee from upsetting the living-rights of family members in a dwelling house and that "undivided family" must be read with reference to the dwelling house (undivided qua that house). The Court observed that this Full Bench view has been followed in subsequent reported decisions and correctly states the legislative policy.
The Court rejected the narrower interpretation advanced from Chatterji v. Maung Mye (that Section 4 requires a "family dwelling house" narrowly defined or that letting part of a house removes the character of a dwelling house), noting that no reasons were supplied in the Rangoon judgment for injecting the phrase "family dwelling house" when the Section explicitly refers to "a dwelling house belonging to an undivided family." The Court relied on Khirode Chandra Ghoshal and Mukerji, J.'s observations that "family" should receive a liberal construction and that ownership of the dwelling house — not actual occupation by all members — is the operative fact for Section 4.
On the question whether inheritance alone converts a successor into a member of the family for purposes of Section 4, the Court held that the Section does not speak of mere co-ownership or co-tenancy. The statute contemplates membership of the family to whom the dwelling house belongs; a person does not become ipso facto a member of that family merely by inheritance. The Court illustrated this point by reference to hypothetical consequences (for example, a daughter's son of a Hindu family would not automatically become a family member on acquiring property).
The Court also declined to permit a new contention (that Samuel and Daniel were themselves divided) raised for the first time in the second appeal; it noted the plaint averred joint possession and living in the house by the two brothers, there was no traverse, and no issue had been framed on that point at trial, so the plea could not be introduced at this stage.
Applying these principles to the facts, the Court concluded that despite plaintiffs' entitlement to a 2 annas share by succession, they were not members of an undivided family in relation to the dwelling house at the time of the 1947 sale by Kadambini. The sale to the plaintiffs (to the extent of Kadambini's half-interest) therefore transferred a share to outsiders and Section 4 protection for the family applied in favour of defendant 1.
Holding and Implications
Core ruling: APPEAL ALLOWED.
The Court held that the Courts below were wrong in refusing relief under Section 4 of the Partition Act to defendant 1. It directed the learned Munsif to:
- Value the four annas share sold by Kadambini under Ex. 1 to plaintiffs 1 and 2;
- Direct the sale of that four annas share to the appellant (defendant 1) in accordance with Section 4;
- Allow the plaintiffs partition of the 2 annas interest of Samuel which they acquired by succession.
Consequential orders: The appeal is allowed and the defendant (appellant) shall be entitled to half the costs throughout. P.V.B. Rao, J. concurred; the formal order reads "Appeal allowed."
Implications explicitly stated in the opinion are limited to the direct effects on the parties: the appellant obtains the right to purchase the outsider transferee's (plaintiffs') four annas share under Section 4 and the plaintiffs retain their 2 annas succession share to partition. The opinion does not purport to lay down a new precedent beyond applying and endorsing existing authorities on the correct interpretation of Section 4.
Panigrahi, C.J:— If the facts of this case are properly appreciated the principle of law that should be applied will be easy to determine.
2. Plaintiffs 1 to 4 are the heirs of one Shyam Sundar Baral who had two brothers Samuel and Daniel. In the year 1936 they filed a suit for partition of their share in the suit property, which consists of a dwelling house standing on plot No. 280, in Title Suit No. 332/89/57 of 1936 in the Court of the First Munsif, Cuttack, and obtained a decree for partition on 3-10-1936. In accordance with the decree the suit house was divided into two portions X and Y, X representing one-third share of the plaintiffs' father, and Y representing the share allotted to Samuel and Daniel jointly. The plan attached to the plaint shows that eastern portion marked X fell to the share of the plaintiffs and the western portion Y, to Samuel and Daniel. Samuel died in the year 1944, leaving a widow, Kadambini, surviving him. Kadambini purported to convey by a sale deed, Ex. 1 dated 10-1-47, the entire interest of Samuel in the suit dwelling, house to plaintiffs 1 and 2 — which obviously she was not entitled to do.
3. The parties being Christians are governed by the provisions of Section 106 of the Indian Succession Act and Kadambini would be entitled only to a half share in the interest of Samuel, the other half going to Samuel's brother and his nephews. Ext. 1 is therefore operative only to the extent of conveying Kadambini's half share in the interest of Samuel in the suit house, the plaintiffs and Daniel being entitled to the other half. Thus, the plaintiffs would be entitled to 2 annas interest by succession and 4 annas interest of Kadambini by reason of the purchase under Ex. 1.
4. The appellant Sushila is the widow of Daniel who died leaving a deed of gift in her favour. The plaintiffs have raised the present suit for partition of the entire 8 annas interest which they claim to have purchased from Kadambini under Ex. I and for separate possession thereof. The appellant Sushila is defendant 1 and Kadambini is defendant 2.
5. Several points were raised by the defendants in the course of the trial, but it is unnecessary to trace the chequered course that this litigation has taken. The only point raised in this appeal which requires serious consideration is whether defendant 1 the appellant, who is willing to purchase the 4 annas interest of Kadambini from the plaintiffs is entitled to any relief under Section 4 of the Partition Act.
6. The Courts below have negatived the appellant's claim on the ground that on Samuel's death the plaintiffs who became co-sharers in the suit house were still members of the family and were not strangers in favour of whom partition could not be granted. It is against this finding that defendant 1 has come up in appeal.
7. Sub-section (1) of Section 4 of the Partition Act says:
“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 member of the family 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, etc.”.
8. What this Section contemplates is (1) that the suit for partition must relate to a dwelling house (2) that such house must have belonged to an undivided family (3) that it must have been transferred to a person who is not a member of such family. The question is whether the property in question remained as the dwelling house of an undivided family and whether the plaintiffs are not members of such family. It should be noticed that plaintiffs 1 and 2 are the purchasers under the sale Ex. 1 and plain-hits 3 and 4 are the other children of Shyam Sundar Baral.
9. Mr. Das Gupta appearing for the appellant contends that the plaintiffs can by no means be regarded as members of an undivided family as they had already got their shares partitioned in an earlier suit, and as such ceased to be members of the family of Daniel and Samuel who continued to live undivided in the dwelling house.
10. The rival contention advanced by Mr. Misra for the respondents is that irrespective of the earlier partition suit, the plaintiffs became members of the family in respect of the suit dwelling house the moment Samuel died and they became entitled by succession to a share in the property. The question is which of these two contentions must prevail.
11. It was decided in the well-known Full Bench case of the Allahabad High Court in — ‘Sultan Begum v. Debi Prasad’, 30 All 324 (FB) (A), that the object underlying Section 4 of the Partition Act is to prevent a transferee of a member of a family who is an outsider, from forcing his way into a dwelling house in which other members of Iris transferor's family have a right to live. It was also held that the words “undivided family” used in that Section must be taken to mean
“undivided qua the dwelling house in question, and to be a family which owns the house but has not divided it”.
12. This Full Bench decision has been followed subsequently in all the reported decisions that have been brought to our notice, and we are of opinion, if I may say so with respect, that decision correctly brings out the principle underlying the legislative policy in enacting Section 4 of the Partition Act. What is contemplated is that the dwelling house should have been left undivided and must have belonged to the family.
13. A transfer of the interest of any member of such family to a stranger, that is, one who is not a member of that group of persons constituting the family to whom the dwelling house belongs is not permitted to break up the family by forcing his way into it by a suit for partition.
14. Mr. Das Gupta referred us to the cases reported in — ‘Nil Kamal v. Kamakshya Charan’, AIR 1928 Cal 539 (B); — ‘Babulal Tiwari v. Hulla Mallah’, AIR 1938 Pat 13 (C), and—Bhuban Mohan Guha v. Brojendra Chandra’, AIR 1941 Cal 311 (D), where the above principle has been recognised. Mr. Misra however, urged that a house ceases to be a “dwelling house” within the meaning of Section 4 if a portion of it has been let out to tenants. He-drew our attention to the case of — ‘Chatterji v. Maung Mye’, AIR 1940 Rang 53 (E) which is a decision of a single Judge.
15. It appears from the Report that the learned judge was of opinion that the expression “dwelling, house belonging to an undivided family” occurring in Section 4 refers to a “family dwelling house”; and does not mean any house or building for human dwelling belonging to an undivided family. I ant unable to understand why the expression “family dwelling house” should be read into the Act when the Section itself says, in clear terms, that it applies to “a dwelling house belonging to an undivided family”.
16. No reasons are given by the learned Judge for entertaining this opinion, nor can I discover any. On the other hand the case of — ‘Khirode Chandra Ghoshal v. Saroda Prosad Mitra’, 12 Cal LJ 525 (F) on which the learned Judge has relied, goes against the interpretation put by him. In ‘12 Cal LJ 525 (F)’ it was held that the word ‘family’ is incapable of an exhaustive definition and that it should be read in a liberal sense.
17. Mr. Misra laid considerable stress on the observation made in the case, particularly on the quotations from the Oxford Dictionary, where ‘family’ is defined as including those descended or claiming, descent from a common ancestor; it has very often a much wider import; it is often used to indicate a body of persons formed by those who are merely connected by blood or affinity; it is sometimes used, to include even a body of persons who live in one house or under one head.
18. In the case of — ‘Wilson v. Cochran’, (1869) 98 Am Dec 553 at p. 555 (G), it was observed that
“family embraces a collective body of persons living together in one house or within the curtilege.”
19. Mukherji, J., following this dictum said that the word “family” as used in the Partition Act has to be given a liberal, comprehensive meaning and it includes a group of persons related in blood who live in one house, or under one head or management. It should be noticed that besides including a group of persons related in blood, they must live in one house or under one head or management in order to constitute a family.
20. In that particular case the daughters' husbands lived in the dwelling house of their father-in-law and were held to constitute one family within the meaning of Section 4. While citing this passage from the judgment of Mookerji, J., in support of his view the learned Judge of the Rangoon High Court seems to have been under the impression that what the Section contemplates is a family dwelling house and not a dwelling house belonging to an undivided family.
21. This decision of the Rangoon High Court also appears to have been followed in — ‘Abinash Chandra v. Kamala Devi’, AIR 1953 Pat 344 (H). There also, there is very little discussion in support of the view taken by the learned Judge of the Patna High Court, following the dictum laid down in the Rangoon case. Mr. Misra then referred to a single judge decision of the Calcutta High Court — ‘AIR 1928 Cal 539 (B)’.
22. Undoubtedly, in that case there is an observation made by Mukerji, J. which apparently supports the respondents' contention. His Lordship observed that the word “family” as used in Section 4 of the Partition Act ought to be given a liberal and comprehensive meaning and that it includes a group of persons related in blood who live in one house under one head or management, that it is not restricted to a body of persons who can trace their descent from a common ancestor; that it is not necessary for the members to constitute an undivided family, that they should constantly reside in the dwelling house; nor is it necessary that they should be joint in mess; that it is sufficient if the members of the family are undivided qua the dwelling house which they own; and finally that it is the ownership of the dwelling house and not its actual occupation which brings the operation of the Section into play.
23. This last statement, if I may say so with respect, correctly states the true position of law. Mr. Misra however has attempted to tear this last observation of the learned Judge from the context and build up an argument on the rest. What the learned Judge has laid down, in essence, is that in giving a liberal interpretation to the word “family’ it is not necessary to find that the members should be constantly residing in it, or that they should constitute an undivided family when the dwelling house is left undivided.
24. The Section in clear terms refers to the owner-ship of the dwelling house by an undivided family; but whether the members of the family occupy it or not, it must be a dwelling house. This decision, therefore, far from supporting the contention that ??? a house is tenanted it ceases to be a dwelling house, is directly against it.
25. It will be seen from that report that the plaintiffs who once belonged to the family of the defendants had taken their share by partition of the ancestral properties, and that they had no right to live in the house, apart from their right under the purchase. This circumstance, according to Mukerji, J. clearly made them strangers to the family.
26. The next case relied on by the respondents is a decision of the Madras High Court, — ‘Mantripragada Siva Ramayya v. Kapa Venkata Subamma’, AIR 1930 Mad 561 (I), where Curgenven, J. followed the Full Bench decision of the Allahabad High Court in ‘30 All 324 (FB) (A)’ as well as 12 Cal LJ 525 (F)’. The only principle followed in that case is that the family should have remained undivided qua the dwelling house at the time of the transfer.
27. I would accordingly overrule the contention that the house ceased to be a dwelling house by reason of portion of it having been let out to tenants.
28. The second contention raised by Mr. Misra is that the status of the family at the time of the suit namely, whether it was divided or undivided at the date of the suit, should be looked into, in order to ascertain whether the plaintiffs would be entitled to partition. This contention proceeds on the assumption that the plaintiffs became members of the family of Samuel and Daniel by reason of their inheritance to an undivided share of Samuel's interest.
29. The Section, however, does not speak of any co-ownership or co-tenancy. Whether the transferee is a co-owner or not, what the Section insists upon is that he should be a member of the family to whom the dwelling house belongs. We have heard Mr. Misra at great length on this point and we are not satisfied that a person by reason of inheritance alone becomes ipso facto a member of the family to whose property he succeeds. If that were so, a daughter's son of a Hindu family would automatically become a member of his family on his getting a share of his property.
30. I do not see how such a result can follow. The family may remain just the same irrespective of where the property of an individual member goes. As has been pointed out earlier the persons constituting the family must live together under one head or management and it is in that sense that the expression has been used in S. 4.
31. There is one other point raised by Mr. Misra and that is that Samuel and Daniel were themselves divided and that therefore Section 4 could not have any application. This contention, however, was urged for the first time in this Court and Mr. Misra wanted permission to read the evidence in support of this contention.
32. A reference to the plaint, however, would show that the plaintiff came to Court on the allegation that the suit house was in the joint possession of the two brothers and that they had lived in that house. Having regard to this averment and particularly as there was no traverse of this allegation and no issue was raised on the question, such a plea cannot be permitted to be raised for the first time in second appeal.
33. We are therefore satisfied that the plaintiffs were not members of an undivided family at the time the sale took place in 1947, in spite of their being entitled to 2 annas share by succession, and that defendant 1 is entitled to resist the partition of the dwelling house which was the dwelling house of the family consisting of her husband and his brother. The Courts below were wrong in refusing relief under Section 4 of the Partition Act. We would accordingly direct the learned Munsif to value the four annas share sold by Kadambini under Ex. 1 to plaintiffs 1 and 2, and direct the sale of such share to the appellant. The plaintiffs will of course be entitled to a partition of the 2 annas interest of Samuel which they got by succession. The appeal is allowed. Defendant shall be entitled to half the costs throughout.
P.V.B Rao, J.:— I agree.
D.R.R
34. Appeal allowed.
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