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Smart Summary

Summary of the Opinion — Partition Act (Section 4) Appeal

Factual and Procedural Background

Plaintiffs sued for partition of a dwelling house and agricultural lands. In their plaint they sought a share in the dwelling house or, if their share in the dwelling house was not allowed, a proportionate parcel of the agricultural lands instead. Defendant 9 (the appellant) did not appear at early stages; her husband, defendant 10, appeared and filed a written statement proposing that the plaintiffs' share in the dwelling house be valued and that defendant 10 be permitted to purchase it as a member of the undivided family.

The trial Court's preliminary decree dated 5 December 1921 directed that plaintiffs could not get any share in the dwelling house but should receive a share in the lands of equivalent value. On the same day, defendants 14 to 19 (respondents here) applied for maintenance of their possession and for allotment of the portion of the dwelling house they claimed to be in their possession. A final decree in terms of the preliminary decree was passed; at defendant 10's instance the final decree was later set aside. Before another final decree could be passed, the appellant appeared on 14 December 1925 and under Section 4 of the Partition Act applied to be permitted to purchase the shares of the plaintiffs and of defendants 14 to 19 (strangers to the family). The trial Court allowed the application as to all these shares. On appeal the District Judge dismissed the appeal insofar as it related to the plaintiffs' share but allowed it in respect of defendants 14 to 19, holding that the Partition Act did not permit the original shareholder to purchase the shares of those defendants. Two appeals were then brought to the Court: one by the plaintiffs against sale of their share and this appeal by defendant 9 against the disallowance of her prayer to purchase the shares of defendants 14 to 19. The Court has already allowed the plaintiffs' appeal as to their share; this opinion concerns the appeal by defendant 9 against the disallowance with respect to defendants 14 to 19.

Legal Issues Presented

  1. Whether the second appeal was competent in this matter given the District Judge's order refusing to pass an order for sale (issues raised under Section 8 of the Partition Act and the Code of Civil Procedure).
  2. Whether Section 4 of the Partition Act permits an original shareholder (or a member of the undivided family) to purchase the shares of persons who are strangers to the family but who are defendants (i.e., who did not themselves "sue for partition").
  3. Whether defendants who, while formally defendants in the partition suit, have applied for a share in the dwelling house (by application dated 5 December 1921) can be treated as persons who have "sued for partition" for the purpose of Section 4 of the Partition Act.

Arguments of the Parties

Appellant's Arguments

  • The respondents (defendants 14–19) are strangers who purchased shares in the dwelling house from some co-sharers.
  • Under the provisions of Section 4 of the Partition Act the appellant should be permitted to purchase those strangers' shares in the dwelling house.

Respondents' Arguments

  • Section 4 does not apply because the respondents (defendants 14–19) did not bring a suit for partition; they are not plaintiffs and therefore cannot be the class of persons referred to in Section 4.
  • A preliminary procedural contention: under Section 8 of the Partition Act an appeal lies from an order for sale made by the Court under Section 4, and since the District Judge refused to pass such an order (i.e., refused sale), the matter was said not to be appealable — implying that the second appeal should be incompetent.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Kshirode Chunder Ghosal v. Saroda Prasad Mitra [1910] 12 C.L.J. 525 Identified Section 4 of the Partition Act as a logical sequel or corollary to Section 44 of the Transfer of Property (T.P.) Act, i.e., legislative design to deny joint possession to stranger purchasers and to provide them only the remedy of suit for partition, with Section 4 enabling family members to buy back such shares. The Court relied on this characterization to explain the legislative purpose behind Section 4 and to support a construction that prevents defeating the Act's object by narrow readings that would allow stranger defendants to retain shares in the dwelling house contrary to the Act's intent.
Khanderao Dattatraya v. Balkrishna Mahadev, A.I.R. 1922 Bom. Held (on its facts) that a defendant who is a stranger and has not "sued for partition" cannot be treated as the person who has sued for partition; consequently the Court refused permission to purchase a non-plaintiff stranger's share in that case. The Court considered and distinguished this decision: it observed factual differences (uncertainty whether the defendant in that report had claimed a share) and noted a difference in views about timing of applications under Section 4. The Court concluded the Bombay decision did not resolve the difficulty in the present case.
Pran Krishna Bhandari v. Keshah Chandra Roy (1918) 45 Cal. 873 Held that an application under Section 4 of the Partition Act can be made at any stage of the suit, including in the appellate Court (i.e., not strictly limited to before a preliminary decree). The Court relied on this authority to reject the contention that Section 4 applications must precede a preliminary decree and to uphold that the present application, made after the preliminary decree, could be entertained.

Court's Reasoning and Analysis

The Court proceeded in stages. First it disposed of the preliminary procedural objection about the competency of the second appeal. The Court observed that the trial Court had passed an order for sale (which was appealable under Section 8 of the Partition Act) and therefore the appellate order was open to further appeal under the Code of Civil Procedure where the conditions for a second appeal are satisfied. The Court held the second appeal to be competent.

Turning to the substantive question, the Court framed the disagreement: respondents argued Section 4 applies only where the transferee who is a stranger "sues for partition" (i.e., is a plaintiff), whereas the appellant contended that respondents, though formally defendants, had effectively applied for a share in the dwelling house and should therefore be treated as persons who had sued for partition for the purposes of Section 4.

The Court examined the statutory and purposive context. It noted Section 44 of the T.P. Act denies joint possession to a stranger purchaser of a share in a dwelling house, leaving such strangers only with a right to sue for partition. Section 4 of the Partition Act was seen (following the Kshirode Chunder decision) as a corollary intended to protect the family interest in indivisibility of the homestead by allowing family members to purchase shares acquired by strangers. The Court emphasized legislative purpose: preventing the division of small dwelling houses into unsuitable parcels and avoiding the introduction of undesirable neighbours — objectives that a narrow reading of Section 4 might frustrate.

The Court considered the Bombay decision in Khanderao Dattatraya v. Balkrishna Mahadev but found it distinguishable. The Court noted (a) uncertainty in that report whether the defendant had appeared and claimed a share as done by respondents here, and (b) the Bombay view that an application under Section 4 should be made before a preliminary decree — a proposition inconsistent with this Court's prior decision in Pran Krishna Bhandari v. Keshah Chandra Roy, which allows such an application at any stage (even in the appellate Court).

The Court further reasoned that in the present case the suit had not been dismissed and the preliminary decree directing partition of joint properties remained binding; the final decree, when passed, would empower a commissioner to divide all the properties (including the dwelling house). Importantly, the Court relied on the established principle that a party in a partition suit is both plaintiff and defendant simultaneously. Given that the respondents had by their application (dated 5 December 1921) claimed a share in the dwelling house, the Court concluded it was not unreasonable to treat those respondents as having "sued for partition" for the purposes of Section 4.

To resolve the practical difficulty, the Court proposed two permissible courses for the trial Court when passing the final decree: (1) allow defendant 9 to purchase the respondents' shares in the dwelling house under Section 4; or (2) instruct the commissioner, while making the final allotment, to allocate to the respondents their share out of the lands other than the dwelling house, and if that allotment did not fully satisfy their entitlement, direct the family members to compensate them for the deficiency. The Court emphasized that either course would be consistent with the statutory scheme and with the intent to preserve the homestead's integrity.

Holding and Implications

Holding: The Court allowed the appeal by defendant 9 and set aside the decree of the lower appellate Court. The Court directed that the trial Court, in the final decree, may either permit defendant 9 to purchase the shares of respondents 14–19 under Section 4 of the Partition Act or direct the commissioner to allot to those respondents a share out of the lands other than the dwelling house (with compensation for any deficiency).

DISPOSITION: The appeal is allowed; the decree of the lower appellate Court is set aside; the appellant (defendant 9) is entitled to her costs in this Court and in the Courts below.

Implications: The decision applies the Partition Act purposively to prevent literal constructions that would defeat the Act's object of preserving dwelling houses from unsuitable division. It holds that a party in a partition suit who, though formally a defendant, claims a share in the dwelling house by application can be treated as a person who has "sued for partition" within the meaning of Section 4, thereby potentially enabling members of the undivided family to purchase such stranger shares. The Court also reaffirmed that an application under Section 4 may be entertained at a later stage of proceedings (consistent with Pran Krishna Bhandari).

This summary has been prepared strictly from the text of the provided opinion and does not add or infer facts beyond that opinion.

Show full summary ...

    Satyabhama De v. Jatindra Mohan Deb And Ors.

    1. This appeal is by defendant 9 in a partition suit. The facts are that the plaintiffs brought a suit for partition of a dwelling house and some agricultural lands. In the plaint they prayed that if their share was not allowed in the dwelling house they might be allowed a proportionate parcel of the agricultural lands in lieu of their share. The appellant did not appear at the earlier stages of the suit but her husband defendant 10 appeared and filed a written statement in which he said that the plaintiffs' share in the dwelling house might be valued and defendant 10 be allowed to purchase it, he being a member of an undivided family. In view of the pleadings the preliminary decree, which was passed on 5th December 1921, directed that the plaintiffs could not get any share in the dwelling house but they should get a share in the lands of the value of the share they had purchased in the property. On the same day namely 5th December 1921, defendants 14 to 19, who are respondents in this appeal, filed an application in which they prayed that their possession might be maintained and that they might be given a separate saham including the portion in their possession. These defendants claimed to be in possession of a portion of the dwelling house and asked that that portion might be allotted to them on partition. After the preliminary decree a final decree was also passed in terms thereof. At the instance of defendant 10 the final decree was subsequently set aside. Before another final decree could be passed the appellant appeared in Court on 14th December 1925 and filed an application under Section 4, Partition Act (Act 4 of 1893) praying to be permitted to purchase the shares of the plaintiffs and of defendants 14 to 19 all of them being strangers to the family. The trial Court allowed the application and directed that the appellant should be permitted to purchase the shares of the plaintiffs and of defendants 14 to 19 in the homestead described in Schedule ca of the plaint. Against that order an appeal was taken to the District Judge of Dacca and the Additional District Judge by his judgment dated 17th May 1926 dismissed the appeal so far as it related to the plaintiffs' share but allowed the appeal in respect of the shares of defendants 14 to 19 holding that the lower Court was in error in permitting defendant 9 to purchase the shares of these defendants. From the decree of the District Judge two appeals were preferred to this Court, one by the plaintiffs against the order of sale of their share of the dwelling house and the other the present appeal by defendant 9 against the order dismissing her prayer to purchase the shares of defendants 14 to 19. We have already allowed the plaintiffs' appeal and held that in the circumstances of this case defendant 9 is not entitled to claim relief under Section 4, Partition Act.

    2. Now in this appeal the appellant's contention is that the defendants 14 to 19 are strangers who had purchased shares in the dwelling house from some of the defendants' cosharers and that the appellant should be permitted under the provisions of Section 4, Partition Act to purchase their share in the dwelling house. The learned Judge has disallowed the appellant's prayer on the ground that the Partition, Act does not authorise the original shareholder to purchase the share of a stranger to the dwelling house other than the stranger who sues for partition. The effect of this order is that because the respondents are not plaintiffs in the case their shares cannot be purchased by the defendants under the law. We have considered this matter carefully and we have come to the conclusion that the order of the lower appellate Court cannot be supported.

    3. Before entering into the substantial question raised in the suit we should dispose of a preliminary objection which has been taken on behalf of the respondents. It has been argued that under Section 8, Partition Act, an appeal lies from an order for sale made by the Court under Section 4. This appeal is against an order made by the District Judge refusing to pass an order for sale and therefore, it is not open to appeal, We do not think that this contention ought to prevail. The first Court passed an order for sale and that order was appealable under Section 8, Partition Act. The original order being open to appeal any order passed by the appellate Court should be held open to second appeal unless there is anything in law to prevent it. The order passed in this matter is a decree and has been appealed from as such. Under the Code of Civil Procedure a second appeal is allowed against a decree if the other conditions mentioned therein are fulfilled. We hold that the second appeal is competent.

    4. Now we come to the merits of the case-It has been argued on behalf of the respondents that as the respondents have not brought a suit for partition Section 4 does not apply in their case. Section 4 says 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, etc. The appellant contends that though the respondents did not bring a suit yet having applied for a share in the dwelling house they should be treated as having sued for partition of the dwelling house.

    5. Section 44, T.P. Act, excludes the right of a stranger purchaser of a share in a dwelling house to joint possession. As has been observed in Kshirode Chunder Ghosal v. Saroda Prasad Mitra [1910] 12 C.L.J. 525 Section 4, Partition Act, is a logical sequel of or corollary to Section 44, T.P. Act. The latter Act denies the right of joint possession to a stranger purchaser who is left only with the right to sue for partition. It was felt that the partition of a dweling house, specially of small dimensions would divide it into unsuitable parcels and may in some cases introduce undesirable neighbours. The Partition Act 1893 accordingly came to the rescue of the members of an undivided family and gave them the right to purchase the shares obtained by strangers to the family. If effect is given to the respondents' contention the result' will defeat the object of the legislature to secure indivisibility of a dwelling house. It is possible that two persons outside the family buy two shares of two members of the family and one of them brings a suit for partition making the other a defendant and if his right to purchase the share of the dwelling house fails on any account the stranger defendant may yet be given a share in the dwelling house because he does not happen to be a plaintiff in the suit. This is certainly not what the legislature intended and we must try to put a reasonable construction on the acts of the legislature. This matter came up for consideration in the Bombay High Court in Khanderao Dattatraya v. Balkrishna Mahadev A.I.R. 1922 Bom. There the plaintiff a stranger to the family brought a suit for partition of a dwelling house making defendant 3 another stranger cosharer a defendant. Defendant 2 claimed to purchase the shares of the plaintiff and of defendant 3 and his application was allowed.

    6. It does not appear from the report if defendant 3 appeared in the suit and claimed a share in the dwelling house as has been done in the present case by the respondents. But he appealed against the order of the lower appellate Court giving permission to defendant 2 to buy him up. The learned Chief Justice held that as defendant 3 cannot be said to be the person who has sued for partition defendant 2 should not be permitted to buy his share. Upon the particular facts of the case the decision seems to be unexceptionable. The learned Judge's view was based upon the fact that defendant 2 having been allowed to purchase the plaintiff's share, if he does so there is an end of the suit and the question with regard to the purchase of share of defendant 3 will not arise. But if defendant 3 wants to have the partition he will be relegated to the position of a plaintiff and his act will then attract the operation of Section 4, Partition Act. That decision does not meet the difficulty that arises in this case for two reasons. In the first place it seems to be the opinion of the Bombay High Court that an application under Section 4, Partition Act should be made before a preliminary decree is passed whereas this Court has held : see Pran Krishna Bhandari v. Keshah Chandra Roy (1918) 45 Cal. 873 that such an application can be made at any stage of the suit, even in the appellate Court. In the second place, in the case before us the suit has not been dismissed and cannot be dismissed because the plaintiff had been allowed partition of the lands other than the dwelling house and there is a preliminary decree that a partition should be made of the joint properties. The effect of the decree when it becomes final will be that a commissioner will be appointed with instructions given him according to form No. 10 of Schedule 1, Civil P.C. with power to divide all the properties including the dwelling house according to the shares of the parties. If the appellant or defendant 10 had made an application under the Partition Act and bought up the plaintiffs the present question would never have arisen But the preliminary decree directs partition of the joint properties and there having been no appeal against it, -it is binding between the parties.

    7. As has been observed above the plaintiffs' prayer for a share in the dwelling house on partition was disallowed by the trial Court and he was instead given a share in the land other than the dwelling house. The respondents applied for a saham in the dwelling house and it will not be stretching too much the language of the law to treat the respondents as plaintiffs within the meaning of Section 4, Partition Act. This view is supported by the well-known principle that a party in a partition suit whether a plaintiff or a defendant is at the same time a plaintiff as well as a defendant. This dual capacity of a party in a partition suit does not preclude even a defendant who claims a share in the dwelling house from being treated as plaintiff for the purposes of Section 4, Partition Act. By their application of 5th December 1921, the respondents claimed a share in the dwelling house and they should be treated as suing for partition of the dwelling house.

    8. The difficulty in this case may be solved by having resort to a course which seems reasonable. In the final decree which is to be passed in this case a. direction may be given that the respondents' share in the joint properties may be allotted to them out of the lands other than the dwelling house ; and if it is not entirely covered by such allotment the members of the undivided family may be directed to compensate them for deficiency. The result of these considerations is that the trial Court may adopt any of these two courses. It may either allow detendant 9 to purchase the share of the respondents or direct the commissioner when passing the final decree to allot to the respondents a share out of the lands other than the dwelling house. This appeal is accordingly allowed. The decree of the lower appellate Court is set aside. The appellant will be entitled to her costs in this Court and in the Courts below.

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    Satyabhama De v. Jatindra Mohan Deb And Ors.
    (Dec 6, 1928)