1. This appeal, by defendant 1, from the concurrent findings of the Courts below, involves the interpretation of the second paragraph of Section 44 of the Transfer of Property Act.
2. Section 44 reads thus:
“Where one of two or more co-owners of immoveable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee, acquires, as to such share or interest, and so far as is necessary to give effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting, at the date of the transfer, the share or interest so transferred.
Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.”
3. The only question of law, which has been raised in this appeal, is: Whether the defendant 1 is liable to be ejected? The plaintiffs and defendant 2 were members of a joint Mitakshara Hindu family, and, Suraj Prasad Sahu, plaintiff 1, was the karta. They have their residential house and a well on plot 3585, under Khata No. 51, which is recorded in the survey record-of-rights as makan mai sahan, with an area of 45 acres. A portion of this plot, to the extent of 1 katha 71/2 dhurs equivalent to .05 acres, was sold by defendant 2, the brother of the plaintiffs, to defendant 1, a stranger to the family, on 2nd December, 1949, under a registered sale-deed.
4. The plaintiffs, therefore, filed a suit, out of which the present appeal arises, for a declaration that the plaintiffs and defendant 2 were joint and, that the sale by defendant 2 was invalid, fraudulent and without consideration, and, therefore, not binding on the plaintiffs. Their further case was that the land covered by the sale deed formed a part of their undivided joint dwelling house, and, defendant 1, being a stranger to their family and a man of different caste and community, cannot be allowed to take joint possession of the disputed land, because that would interfere with their privacy, as in the compound of that house, which is enclosed by walls, there is a well and a latrine, which are used by females.
5. The suit was contested by defendant 1, who pleaded that defendant 2 was separate from the plaintiffs, and, that the sale executed by defendant 2 in his favour was valid and for consideration, and, the suit land was a vacant space, and was not used by female members of the plaintiffs' family. His further case was that the disputed land by partition amongst the plaintiffs and defendant 2 had been allotted to the share of defendant 2, and, as such, defendant 2 was quite competent to transfer the land in his exclusive possession, and, to put defendant 1 in possession thereof.
6. The relevant concurrent findings of the Courts below, on which depends the question at issue, are:
“1. There has been a severance of status between the plaintiffs and defendant 2, but there has been no partition by metes and bounds between them;
2. The suit land was a part of the undivided land appertaining to the dwelling house of the family of the plaintiffs and defendant 2;
3. The suit land was never partitioned and allotted exclusively to the share of defendant 2; and,
4. On the suit land there was a well and a latrine in the compound of the plaintiffs'house, and, therefore, the presence of a stranger within the compound would interfere with the privacy, and, as such, the plaintiffs had a right to object to joint possession being given to them with defendant No. 1.”
7. On the question as to how defendant 1 got into possession of the land, the learned Subordinate Judge observed:
“It is, therefore, clear from the evidence that the constructions (that is, hut, platform and Nad Charan which were found on the land by the Commissioner) were made after the filing of the plaint and before the inspection by the commissioner. At any rate, it is clear that the defdt. did not get amicable possession of the suit land; on the other hand, it appears that he obtained possession forcibly.”
8. This finding, I may mention at this very stage, was attacked by the appellants, but as it is a question of fact, and, I find no error of law, I would not upset it.
9. The Court of appeal below, therefore, held, in agreement with the first Court, that in view of Section 44 of the Transfer of Property Act, defendant 1 could not claim to remain in joint possession with the plaintiffs, when he has not obtained amicable possession of the joint dwelling house; and, therefore, it affirmed the direction of the first Court that defendant 1 should give up possession of the suit land.
10. The only question, therefore, which has been debated, is Whether the decree of the Court of appeal below, ejecting defendant 1 from the suit land, is, in the circumstances of the case, correct in law?
11. Mr. Awadh Bihari Saran, in support of the appeal, contended that in the present case, defendant 1 is, no doubt, a stranger purchaser of an undivided share in a homestead used as the residence of the joint family, on the finding of the Court of appeal below, but he has already got into possession of a portion of the joint family homestead, and, as such, it is not open to the plaintiffs, or to any one or more of the members of the joint family, who still own some share in the same homestead to bring a suit in ejectment of defendant 1 from that property, because there is no provision of law under which a stranger transferee can be ejected simply on the ground that it was not possible for such a transferee to have obtained joint possession through Court in view of Section 44 of the Transfer of Property Act.
12. He further contended that in the present case the stranger transferee is not a plaintiff, but a defendant, and, therefore, the principle which governs a suit for partition brought by a stranger transferee, will not apply to the present case.
13. In support of his contention. Mr. Saran relied on the decision of a Single Judge of the Calcutta High Court in Josendra Nath v. Adhar Chandra, AIR 1951 Cal 412 (A), in which R.P Mookerjee, J., observed:
“We have, however, to consider the effect of the provisions contained in the second para of Section 44 of the Transfer of Property Act. A stranger transferee is not to be deemed under that section to be entitled to joint possession or other common or part enjoyment of the house. It will be apparent that the provisions of this section are of a negative nature. On proof of a sufficient defence the Court will not forcibly put a stranger transferee in joint possession with the members of the joint family. This does not create a positive right in favour of members of the family.”
14. Mr. Saran relying on the above case developed his argument and submitted that if defendant 1 would have been a plaintiff in the suit, and, the present plaintiffs defendants to such a suit, then only defendant 1, being a stranger purchaser of an undivided share in a homestead used as residence by the joint Hindu family, could not have obtained a decree for joint possession in view of the second paragraph of Section 44 of the Transfer of Property Act.
15. But where the stranger transferee is not a plaintiff, but a defendant, then in such a case in a suit for possession by the members of the joint family against the stranger purchaser, the latter cannot be asked to give up possession of the land, and as such, he is entitled to claim to remain in joint possession of the purchased land with the other members of the joint family who still hold share in the land.
16. In the case relied upon, the stranger purchaser was a defendant, and, the plaintiffs of that suit filed a suit for permanently restraining the defendant from taking joint possession of the homestead. The suit was dismissed on the ground that) it was a misconceived one. In that case, the only question which was decided by his Lordship was whether the plaintiff of that suit was entitled to an injunction against the purchaser defendant. In my opinion, therefore, this case is of no assistance to the appellant.
17. Mr. Chandra Bhushan Sahay, for the respondents, however, relied on a subsequent decision of another Single Judge of the same High Court in Lal Behari Samanta v. Gourhari Dawn, AIR 1952 Cal 253 : 54 Cal WN 912 : ILR (1951) 2 Cal 263 (B). In this case, Mr. Justice Lahiri in considering the contention, mentioned below, of the stranger purchaser, who was a defendant to the suit, brought by the plaintiffs for an injunction restraining him from exercising any act of joint possession in respect of an undivided share of a dwelling house, observed:
“The language of the 2nd paragraph of S. 44 suggests that the transferee of the share of the dwelling house has no title to joint possession or other common or part enjoyment of the house. It is true that it takes away the right of the transferee, to ask for joint possession but at the same time it seems to me that it does create a right in favour of the other co-owners of the dwelling house who are affected by the sale.”
18. His Lordship, therefore, rejected the contention that Section 44 of the Transfer of Property Act is not at weapon of offence, but merely of defence.
19. The above view is supported by an earlier Bench decision of the same High Court in be to Krishna v. ??? AIR 1950 Cal 111 : 54 Cal W 660 (C), ??? in my judgment, should govern the present case. I may of that the case ??? (B), was decided by Lahiri, J., on 29th June, 1950, whereas the case of Boto Krishna Ghose (C) just mentioned, was decided by R.P Mookerjee and P.N Mitra, JJ. on 9th September, 1949. This was a Letters Patent Appeal, and, P.N Mitra, J. with whom R.P Mookerjee, J. agreed, delivered the judgment of the Court. His Lordship P.N Mitra, J., observed:
“The essence of the matter, therefore, is that the house itself should be undivided amongst the members of the family who are its owners. The emphasis is really on the divided character of the house, and it is this attribute of the house which, imparts to the family its character of an undivided family. For, the members of the family may have partitioned all their other joint properties and may have separated in mess and worship, but they would still be an undivided family in relation to the dwelling house so long as they have not divided it amongst themselves.
If in this state of things a member of the family transfers his share in the dwelling-house to a stranger, the position that arises is that the 2nd paragraph of Section 44 of the Transfer of Property Act comes into operation and the transferee does not become entitled to joint possession or other common or part enjoyment of the house, although he would have the right to enforce a partition of his share. The object of this provision is to prevent the intrusion of strangers into the family residence which is allowed to be possessed and enjoyed by the members of the family alone in spite of the transfer of a share to a stranger.
The factual position then is that it is still an undivided dwelling-house, the possession and enjoyment of which are confined to the members of the family, the stranger transferee being debarred by law from exercising his right to joint possession which is one of the main incidents of co-ownership of property. Such a dwelling-house can in our opinion still be looked upon as a dwelling-house belonging to an undivided family, because the members of the family have not divided it amongst themselves and are in sole enjoyment and possession of it to the exclusion of the stranger transferee who has only a right to partition.”
20. The ratio which governs a suit for partition brought by the stranger transferee as plaintiff is that which has been laid down by a Bench decision of the Calcutta High Court in Girija Kanta v. Mohim Chandra, 20 Cal. W.N 675 : (AIR 1916 Cal 170) (D). In this case, Mookerjee and Roe, JJ. held that:
“…..the plaintiff, a stranger to the family, should not be placed in actual joint possession of the huts, in which the Defendants reside, whatever the strict rights of the plaintiff may be, as purchaser of a two-thirds share of the disputed property…….. The proper course to follow is either to direct delivery of possession by partition in execution proceeding or to leave the purchaser to his remedy by a separate suit for partition. Their Lordships further observed that the above principle applies with much greater force to cases under the Mitakshara law, because if the contrary view were maintained, results would follow which are best described the weighty words of West-ropo, C.J, in Balaji v. Ganesh, ILR 5 Bom 499 (E):
“It is a far safer practice, and less likely to lead to serious breaches of the peace, to leave a purchaser to a suit for partition than to place him by force in joint possession with members of a Hindu family who may be not only of a different caste from his own but also different in race and religion.”
21. I respectfully agree to the statement of law laid down by their Lordships in the just mentioned three cases.
22. In my judgment, the true and proper construction of the second paragraph of Section 44 of the Transfer of Property Act is that the transferee of a share of a dwelling-house belonging to an undivided family, who is not a member of the family, shall not be entitled to joint possession, or other common or part enjoyment of the undivided house. I This is the position whether such a transferee comes as a plaintiff and asks for joint possession, or, whether he is a defendant and claims to remain in joint possession with the plaintiffs, who are the members of the undivided family.
23. In either case, he has no right either to ask for joint possession, or to remain in joint possession, because the language of the second paragraph of S. 44 does create a right in favour of the other co-owners of the dwelling-house, who are affected by the sale. The only remedy, therefore, of the stranger transferee, who is a defendant to a suit, brought by the members of an undivided family, is a right of partition, and, he has no right to claim to be in joint possession with the plaintiffs.
24. The principle underlying S. 44 is that it is inequitable to permit a stranger to intrude himself upon the privacy of a joint Hindu family residence. The question in such a case, that the stranger purchaser has been put in amicable possession by his vendor only, but without the consent of the other members of the undivided family, who are affected by the sale, or, that he has taken forcible possession of the undivided land, and is in joint possession thereof by force, is, in my opinion, immaterial. In either case the stranger purchaser, who is a defendant to the suit of the members of the joint family, is liable to be ejected for the simple reason that he is not entitled to claim joint possession or other common or part enjoyment of the house belonging to an undivided family.
25. For these reasons, I would affirm the concurrent decisions of the courts below, and dismiss the appeal with costs. As the time given by the court of appeal below to defendant 1 for giving up possession of the land in favour of the plaintiffs has expired by now, I would direct that defendant 1, appellant, shall give up possession of the disputed lands in favour of the plaintiffs within three months from the date of this judgment, failing which the plaintiffs shall be entitled to get possession of the disputed lands by ejecting defendant no. 1 at his cost through court. It will be open, however, to defendant I to bring a suit for partition of his purchased land, if so advised.
M.K.S
26. Appeal dismissed.
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