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Abinash Chandra Chakravarty v. Sm. Kamala Devi .
Concise Analytical Summary of the Opinion
Factual and Procedural Background
The plaintiff instituted a suit seeking declaration of his one-sixth interest in a disputed holding, confirmation of possession or alternatively recovery of possession of his share, and in the further alternative a partition or an order directing the defendant to sell to the plaintiff the remaining five-sixths together with the house for Rs. 2,916/10/-. The property had been inherited from the plaintiff's mother, Khetramoni Debya, by the plaintiff and his two brothers, Girish Chandra Chakraverty and Subodh Chandra Chakraverty. The pleaded division was such that each brother acquired one-sixth of the disputed property. Girish sold his one-sixth to Radha Rani (wife of Subodh), and thereafter Subodh and his wife executed a sale of the entire property to the defendant on 24-9-1943.
The defendant contested the suit, alleging non-joinder of Subodh and his wife, asserting that the entire holding of 7 kathas should have been included, and claiming to have purchased in good faith from ostensible owners who had dealt with the property as exclusive owners (including prior mortgages and possession by mortgagees).
At trial the court found that the defendant had not proved any private arrangement excluding the plaintiff, held the suit was not bad for non-joinder, and ruled that the plaintiff was entitled to a proportionate share of the sale consideration (Rs. 700 out of Rs. 3,500). The plaintiff appealed, the lower appellate court dismissed the appeal holding Section 4(1) of the Partition Act inapplicable because the suit was not a pure partition suit, and the plaintiff appealed further. The present court modified the decrees below and awarded the plaintiff Rs. 1,000 as compensation for his one-sixth share, with each party to bear its own costs.
Legal Issues Presented
- Whether the plaintiff is entitled to purchase the defendants' five-sixth share under Section 4(1) of the Partition Act (Act 4 of 1893), even though the suit before the court is not a pure partition suit and the transferee (defendant) did not sue for partition.
- Whether the disputed house qualifies as a "dwelling house belonging to an undivided family" within the meaning of Section 4(1) of the Partition Act.
- Whether the suit was maintainable in the absence of joinder of Subodh Chandra Chakraverty and his wife and whether the entire undivided holding (7 kathas 15 dhurs) should have been included in the suit.
- If Section 4(1) does not apply and partition is impracticable or prejudicial, whether monetary compensation in lieu of partition is an appropriate remedy and what amount should be awarded.
Arguments of the Parties
Plaintiff's Arguments
- The plaintiff contended he was entitled to purchase the five-sixths share of the property under Section 4(1) of the Partition Act even though the suit was not a pure partition suit and the transferee had not sued for partition.
- He argued that it is ownership of the dwelling house, not its occupation, that brings Section 4(1) into play.
- He relied on several precedents intending to support the proposition that Section 4(1) could be invoked in these circumstances (cases cited in the record).
- He contended it was not necessary to include all properties left by his mother in order to claim relief in respect of his one-sixth share of the specific property in suit.
Defendant's Arguments
- The defendant pleaded non-joinder of Subodh Chandra Chakraverty and his wife, and asserted that the suit was not maintainable unless the whole holding (7 kathas) was included.
- She asserted that the property had been treated by her vendors as exclusively theirs under prior arrangements and that various mortgages had been executed by Subodh (with mortgagees put in possession), which supported her acquisition as a purchaser in good faith from ostensible owners.
- The defendant argued that, if the plaintiff had any one-sixth interest, he should be limited to his proportionate share of the sale consideration (i.e., one-sixth of Rs. 3,500), and contended she had been prejudiced by the framing of the suit.
- She urged equitable considerations — that when division is inconvenient, physical possession should remain with the occupier and the other co-sharer should be compensated in cash — and relied on authority and the facts to support this remedy.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Satyabhama De v. Jatindra Mohan Deb, AIR 1929 Cal 269 | Relied upon by plaintiff to support the contention that relief under Section 4(1) could be claimed even when the transferee has not sued for partition. | The case was one of several relied upon; the court considered the plaintiff's reliance but proceeded to decide on the facts and the applicability of Section 4(1) to the present house. |
| Sheodhar Prasad v. Kishun Prasad, AIR 1941 Pat 4 | Relied upon by plaintiff for the same broad proposition regarding Section 4(1) applicability. | Used by plaintiff in argument; the court weighed such authorities but found Section 4(1) inapplicable on the facts (house not proved to be a family dwelling house). |
| Ram Dulal v. Benode Behari, AIR 1949 Cal 245 | Relied upon by plaintiff to support invoking Section 4(1) absent a partition suit by the transferee. | Cited in argument; the court did not accept the plaintiff's claim under Section 4(1) because of factual findings about the nature and occupation of the house. |
| Abu Isa v. Dinabandhu, AIR 1947 Cal 426 | Relied upon by plaintiff in support of his Section 4(1) contention. | Considered as part of plaintiff's authorities; the court ultimately found Section 4(1) inapplicable on the facts before it. |
| Vaman Vishnu v. Vasudev Morbhat, 23 Bom 73 | Stated the principle that it is ownership of the dwelling-house and not actual occupation which brings Section 4 into play; examined the nature of the house vis-à-vis undivided family ownership. | The court observed this decision but concluded it was not of assistance to the plaintiff in the present case because factual differences (the house here had tenants and was not shown to be the dwelling house of the plaintiff or Subodh) made the precedent inapposite. |
| Nil Kamal v. Kamakshya Charan, AIR 1928 Cal 539 | Quoted for a liberal, comprehensive meaning of "family" under Section 4 and for the proposition that ownership (not occupation) triggers Section 4's operation. | The court cited the passage but distinguished the present facts: unlike that case, there was no establishment that the house in suit was the dwelling house of the plaintiff or Subodh; accordingly Nil Kamal did not control the result here. |
| J.C. Chatterji v. Maung Mye, AIR 1940 Rang 53 | Relied upon by the defendant for the narrower view that "dwelling house belonging to an undivided family" refers to a family dwelling house, not any house belonging to an undivided family. | The court agreed with the defendant’s reliance on this authority and held that the house in question had not been established to be a "dwelling house belonging to an undivided family" within Section 4(1). |
| Lachmi Narain v. Janki Das, 23 All 216 | Relied upon by the plaintiff for the proposition that it is not necessary to include all properties left by a deceased in a suit to claim relief as regards a specific share. | Asserted by plaintiff in argument; the court nonetheless found non-joinder and omission of the entire holding prejudicial to the defendant and important to the proper adjudication of relief. |
| Ram Charan v. Ajudhia Prasad, 28 All 50 | Also relied upon by the plaintiff in support of his contention that he need not make all properties the subject matter of the suit. | Considered in submissions; the court nevertheless concluded that inclusion of the entire holding would have been essential to avoid prejudice and to permit allocation of alternate land in lieu of the one-sixth share. |
| Gopal Ram v. Ram Prasad, AIR 1952 Pat 351 | Authority cited to show that courts may award compensation to a co-sharer instead of effecting a partition when partition would be inappropriate. | The court relied on this principle and, having found partition impracticable and the house dilapidated and small, awarded monetary compensation (modified the decree to Rs. 1,000) rather than ordering partition. |
Court's Reasoning and Analysis
The court undertook a fact-specific analysis focused on the proper scope of Section 4(1) of the Partition Act and on the procedural posture of the suit.
- Applicability of Section 4(1): The plaintiff's primary contention was that Section 4(1) should permit him to buy the transferee's share even though the transferee had not brought a partition suit. The court examined authorities relied upon by the plaintiff but proceeded to test the statutory phrase "dwelling house belonging to an undivided family" against the facts.
- Nature of the house: The court found factual evidence showing the house in suit had been in the occupation of tenants and that the plaintiff admitted that another parcel (land to the east) allotted to him in the 1924 partition "has nothing to do with the disputed land." The court therefore concluded that it was not established that the house had been the dwelling house of the plaintiff or of Subodh Chandra Chakraverty.
- Interpretation of "dwelling house": The court agreed with the defendant's reliance on J.C. Chatterji that the statutory phrase contemplates a family dwelling house (a homestead context) rather than any inhabited structure belonging to an undivided family. Given the absence of facts showing the house was a family dwelling, Section 4(1) did not apply.
- Procedural defects and prejudice from non-joinder: The court accepted that the defendant had been prejudiced by the plaintiff's omission to join Subodh and his wife and by not making the entire 7 kathas 15 dhurs holding the subject matter of the suit. The court noted that the judgment would not bind the absent parties and that inclusion of the whole holding might have permitted an allocation of alternative land to satisfy the plaintiff's one-sixth share.
- Remedy (partition vs. compensation): Examining the pleader-commissioner's report and other evidence, the court found the structures dilapidated and the house small such that physical partition might render it uninhabitable. Relying on established practice (as in Gopal Ram v. Ram Prasad), the court held that in such circumstances a monetary compensation to the co-sharer is an appropriate remedy.
- Quantum of compensation and modification of decree: The trial courts had awarded Rs. 700 (one-sixth of Rs. 3,500). The defendant indicated willingness to pay Rs. 1,000; the court, considering the circumstances (dilapidated house, impracticability of partition, prejudice from non-joinder), concluded Rs. 1,000 to be an appropriate compensation for the plaintiff's one-sixth share. Rather than remanding for amendment and a fuller adjudication involving omitted parties and the entire holding, the court modified the decrees below to award Rs. 1,000 and ordered that each party bear its own costs.
Holding and Implications
Core Ruling: The decrees of the courts below are MODIFIED and the appeal is ALLOWED IN PART. The plaintiff is awarded monetary compensation of Rs. 1,000 for his one-sixth share in the property in suit; each party is to bear its own costs.
Consequences and Implications:
- The direct effect is that the plaintiff receives Rs. 1,000 as compensation in lieu of partition or an order permitting purchase of the remaining five-sixths under Section 4(1) of the Partition Act.
- The court held that Section 4(1) did not apply on these facts because the house was not shown to be a "dwelling house belonging to an undivided family" (it was occupied by tenants and not established as the family homestead of the plaintiff or Subodh).
- The court recognized prejudice caused by the plaintiff's failure to join necessary parties and to include the entire holding, and indicated that had the entire holding been before the court, alternate land allocation might have been possible. Rather than remitting for amendment, the court chose a compensatory remedy as just in the circumstances.
- The decision resolves the dispute between the present parties by modifying monetary relief; the opinion does not purport to bind absent parties (Subodh and his wife) and does not set a novel legal rule beyond application of existing principles to the facts (i.e., no broad new precedent is announced by this opinion).
Decree modified. Appeal allowed in part. Each party to bear its own costs.
1. This appeal by the plaintiff is directed against the judgment and decree of the Additional District Judge of Muzaffarpur affirming those of the Additional Subordinate Judge, 2nd court of the same place. The plaintiff filed the present suit for a declaration of his one-sixth interest in the holding in suit and for confirmation of possession or in the alternative for recovery of possession of his share. He also prayed for partition of his one-sixth share of the property in dispute in case it he not possible for the court to direct the defendant to sell to the plaintiff the remaining five-sixth share of the holding together with the house standing on it for a consideration of Rs. 2916/10/-.
2. The case of the plaintiff was that the property in suit along with other properties were inherited by him & his two brothers Girish Chandra Chakraverty and Subodh Chandra Chakraverty from their mother Khetramoni Debya. In the property in suit, the share of Subodh Chandra, Chakraverty was half and the remaining half belonged to Khetramoni Debya, after whose death each of her three sons, namely, Subodh Chandra Chakraverty, Girish Chandra Chakraverty and the plaintiff inherited one-third of one-half, that is one-sixth share in the property in dispute. Girish Chandra Chakraverty sold his one-sixth share in the property to Srimati Radha Rani, wife of Subodh Chandra Chakraverty. Thus Subodh Chandra Chakraverty and his wife became the owners of five-sixth share in the property and the remaining one-sixth share belonged to the plaintiff. On 24-9-1943, Subodh Chandra Chakraverty and his wife Srimati Radha Rani sold the entire property in suit to defendant 1. As the defendant refused to partition the properties amicably, it became necessary for the plaintiff to institute the present, suit.
3. The suit was contested by the defendant. Her plea was that the suit was not maintainable for the non-joinder of Subodh Chandra Chakraverty and his wife Srimati Radharani. According to her, unless the entire holding of 7 kathas be included in the suit, it is not maintainable. Her case further was that the property in suit belonged to her vendors exclusively by some amicable arrangement, who had been, on previous occasions, dealing with this property as if they were its exclusive owners. Subodh Chandra Chakraverty alone had after the death of his mother mortgaged the property in suit to Khirodeshwar Bose who ultimately realised his dues by instituting a mortgage suit. Subodh Chandra Chakrak verty had further mortgaged the property in suit to Srimati Charusheela Devi for Rs. 1000 by a registered mortgage bond dated 15-7-1941. He had executed another mortgage by way of a conditional sale in favour of Sachindra Chandra Mukherji and another for Rs. 1750 and had put the mortgagees in possession of the property in suit. The defendant pleaded that she had purchased the property in suit in good faith for a valuable consideration from its ostensible owners, and had thus acquired a valid title to it. According to her, even if it be held that the plaintiff had one-sixth share in the property in dispute he should not be allowed to get more than one-sixth of Rs. 3500 which was the consideration for the sale deed in her favour. On these and other allegations she pleaded that the suit was fit to be dismissed.
4. The trial Court came to the conclusion that the defendant had failed to prove any private arrangement between the plaintiff and Subodh Chandra Chakraverty by which the property in suit had fallen to the share of the latter. It further held that the suit was not bad for non-joinder of Subodh Chandra Chakraverty and his wife and that it was not necessary for the plaintiff to include, in the present suit, the entire holding of 7 kathas as alleged by the defendant. The trial court, however, held that, in the circumstances of the present case, the plaintiff was entitled to get, out of the consideration money of Rs. 3500, an amount proportionate to his one-sixth share. The suit was thus decreed for recovery of Rs. 700 with proportionate costs at the ex parte scale. The plaintiff thereafter went in appeal.
5. Before the lower appellate court it was urged on his behalf that the plaintiff was entitled to purchase the remaining five-sixth share of the property in dispute in accordance with the provisions of Section 4 of the Partition Act (Act 4 of 1893). The lower appellate court, however, came to the conclusion that as the present suit was not a suit for pure partition, the provisions of Section 4(1) of the Partition Act, do not apply to it. In this view of the matter, the appeal was dismissed.
6. Mr. K.D Chatterji for the plaintiff-appellant contended before me that his client is entitled to purchase the five-sixth share of the property in dispute in accordance with the provisions of Section 4(1) of the Partition Act (Act 4 of 1893) which 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. According to Mr. Chatterji, the plaintiff can claim a relief under Section 4(1) of the Partition Act, even when tile suit for partition has not been filed by the transferee. In support of his contention he relied upon the decisions in the cases of — ‘Satyabhama De v. Jatindra Mohan Deb’, AIR 1929 Cal 269 (A); — ‘Sheodhar Prasad v. Kishun Prasad’, AIR 1941 Pat 4 (B); — ‘Ram Dulal v. Benode Behari’, AIR 1949 Cal 245 (C) and — ‘Abu Isa v. Dinabandhu’, AIR 1947 Cal 426 (D).
8. Mr. Chatterji next contended that it is the ownership of the dwelling house and not its occupation which attracts the provisions of Section 4(1) of the Partition Act. In support of his contention he relied on the decision in the case of — ‘Vaman Vishnu v. Vasudev Morbhat’, 23 Bom 73 (E). The facts of that case were as follows:
9. One Vishnu Bhikaji Gokhale was the owner of the house in question. He died leaving four sons, namely, Krishnaji, Ramchandra, Vaman and Parasuram. In 1874 the shares of Krishnaji and Parasuram in the house in question were sold and purchased by one Karandikar. In 1877, a money decree was obtained against the heirs of Vishnu. In execution of that decree the house in question was sold and ultimately it passed to Vasudev Morbhat Kale. In a subsequent litigation it was decided that half of the share in the house belonged to Karandikar and the remaining half to Vasudev. Vasudev Morbhat Kale instituted a suit for partition and obtained a decree. During the execution of the partition decree Karandikar sold his moiety share in the house to Ramchandra and Vaman. Vaman, thereafter, applied for purchase of the moiety share of Vasudev Morbhat Kale in accordance with the provisions of Section 4(1) of the Partition Act. His application was rejected by the trial court. On appeal by Vaman, the lower appellate court ordered the sale of the house to the highest bidder as amongst the plaintiff on the one hand, and Ramchandra and Vaman on the other. The sale proceeds were to go half & half to the two sets of owners of the house. Vaman thereafter went in second appeal before the High Court. The relevant portion of the judgment of Farran, C.J runs as follows:
“It is the ownership of the dwelling-house and not its actual occupation which brings the provisions of Section 4 of the Partition Act, into play. The family of Vishnu after the sale in 1877 were either tenants in the house or trespassers. In neither capacity would they possess any privilege-of pre-emption. The question is, whether the dwelling-house at the time, when the shares therein which had not been sold to Karandikar was transferred to the plaintiff, belonged to an undivided family. The answer must, we think, he in the negative. The house then belonged to Karandikar and the heirs of Vishnu whose shares had not been conveyed to Karandikar. When the latter shares were transferred to the plaintiff, he and Karandikar became the owners in common of the house, and it is plain that, as between them, Section 4 of the Partition Act, had no-operation. The subsequent purchase of the interest of Karandikar by Ramchandra and Vaman did not, in our opinion, confer upon them, any rights which Karandikar did not possess. It was in their hands re-acquired ancestral property, but not property belonging to an undivided-family within the meaning of S. 4.”
10. This decision, in my opinion, is not of any assistance to the plaintiff.
11. Mr. Chatterji further relied on the decision in the case of — ‘Nil Kamal v. Kamakshya Charan’, AIR 1928 Cal 539 (P), wherein Mukherji, J. relying on certain decisions observed:
“These decisions lay down that the word ‘family’ as used in the section ought to be given a liberal and comprehensive meaning, and 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; that it is the ownership of the dwelling house and not its actual occupation which brings the operation of the section into play; and that the object of the section 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 his transferrer's family have a right to live.”
12. In that case, however, the homestead land was once used as the dwelling house of the defendants, but in the present case it has not been established that the house in suit was ever used as the dwelling house of the plaintiff or of Subodh Chandra Chakraverty. The plaintiff himself admitted in his evidence:
“The land to the east of the disputed house was allotted to me by partition in 1924. It has nothing to do with the disputed land.”
13. From his evidence it further appears that the house in suit had been in occupation of tenants. Thus, it is clear that the house in suit was not the dwelling house of the plaintiff.
14. Mr. Banerji on behalf of the defendant-respondent contended that the expression “dwelling house belonging to an undivided family” refers I to the family dwelling house and not to any house or building for human dwelling belonging to an undivided family. He relied in this connection on the case of — ‘J.C Chatterji v. Maung Mye’, AIR 1940 Rang 53 (G). I agree with Mr. Banerji and hold that it has not been established in this case that the house in question is a “dwelling house belonging to an undivided family” within the meaning of Section 4(1) of the Partition Act.
15. Mr. Banerji next contended that his client had been greately prejudiced by the frame of the present suit. If Subodh Chandra Chakraverty and his wife had been added as parties to this suit and if the entire undivided holding of 7 kathas had been the subject matter of the partition suit, it would have been possible to allot to the plaintiff a different area representing his one-sixth share in the area of 3½ kathas which belonged to his mother out of the entire holding of 7 kathas. According to Mr. Banerji, his client had purchased the property in suit from Subodh Chandra Chakraverty when she had found him alone dealing with it, on previous occasions, to the knowledge of the plaintiff who had admitted in his deposition that his (plaintiff's) name was not recorded in municipal papers as yet. Banerji submitted that his client was entitled to all equitable considerations in the circumstances of this case.
16. Mr. Banerji next contended that when it is inconvenient to divide a property it should be left in possession of the person who is in occupation of it and the other side may be compensated by paying a cash amount as has been done by the courts below in this case.
17. In reply, Mr. Chatterji contended that it was not necessary for his client to seek partition of all the properties left by his mother. In support of his contention he relied upon the cases of — ‘Lachmi Narain v. Janki Das’, 23 All 216 (H) and — ‘Ram Charan v. Ajudhia Prasad’, 28 All 50 (I).
18. From the partition decree dated 19-3-1924 (Ext. 3) it appears that Khetramoni Debya was allotted certain proprietary interest in village Khota besides half share in the house and land appertaining to Municipal No. 697 ward No. 2. The other half of the house and the land in that holding had been allotted to the share of Subodh Chandra Chakraverty. From Ex. D, the report of Ravindra Nath Banerji, pleader commissioner in connection with mortgage suit No. 307 of 1938 it is clear that the holding of 7 kathas 15 dhurs had fallen to the share of Subodh Chandra Chakravarty and his mother Khetramoni Debya by the partition decree of 1924. In this connection the plaintiff who has been examined as P.W 1, said in his cross-examination:
“Khirodeshwar Bose sued Subodh on the basis of that mortgage bond. Ravi Babu, pleader, was appointed a commissioner to fix the valuation. He made enquiries on the spot in presence of us three brothers.”
19. From Ex. 3 it appears that the share of Subodh Chandra Chakraverty in the house and the adjoining lands was valued at Rs. 1500.
20. I agree with Mr. Banerji that the defendant has been greatly prejudiced by non-joinder of Subodh Chandra Chakravarty and his wife as parties to this suit. The judgment in this suit will not be binding on them. On the basis of this judgment the defendant cannot claim any compensation from them for the one-sixth share of the property in suit which has been held to belong to the plaintiff. In the circumstances of this case it was essential for the plaintiff to have included the entire holding of 7 kathas 15 dhurs in the suit. In that case it would have been possible to give him another piece of land in lieu of his one-sixth share in the house in suit. But instead of setting aside the decrees of the Courts below and remanding the case to the trial Court with permission to the plaintiff to amend the plaint, the justice in the case will be met by allowing plaintiff a compensation for his one-sixth share. From the report of the pleader commissioner (Ex. D) it is quite clear that the structures standing on the holding were in a very dilapidated condition. The house in suit is a small one and it will not be convenient if the plaintiff's one-sixth share is separated from the remaining five-sixth share. The partition may make the house uninhabitable. Courts of law have in appropriate cases allowed compensation to a cosharer rather than partition the property. This was done in the case of — ‘Gopal Ram v. Ram Prasad’, AIR 1952 Pat 351 (J). The Courts below had granted to the plaintiff a decree for Rs. 700. Mr. S.N Banerji informed me that his client could in the utmost agree to pay a compensation of Rs. 1000. In my opinion, in the circumstances of this case, the plaintiff is entitled to a decree for Rs. 1000 as compensation for his one-sixth share in the property in suit. The result is that the decrees of the courts below are modified and this appeal is allowed in part. In the circumstances of this case each party will bear its own costs of this Court and of the Court of appeal below.
B/K.S
21. Decree modified.
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