GHANTESHER GHOSH Vs. MADAN MOHAN GHOSH

JUDGEMENT

(1.) A short question falls for determination of this Court in this appeal by special leave against the decision of the Division Bench of the High Court of Calcutta in Civil Revision Application No. 2250 of 1987. The question is whether Section 4 of the Partition Act, 1893 (hereinafter referred to as "the Act") can be pressed in service in execution proceedings arising out of a final decree for partition, by one of the co-owners of a dwelling house belonging to an undivided family against a stranger transferee of a share therein belonging to another erstwhile co-owner of the said dwelling house. The learned Second Assistant District Judge. Howrah, before whom the said application was moved took the view that Section 4 of the Partition Act could not be pressed in service against the stranger purchaser of such share. The said view was not accepted by the Division Bench of the High Court of Calcutta by the impugned judgment.

(2.) In order to appreciate the correct contours of the controversy in respect of the aforesaid question, it is necessary to glance through a few background facts leading to the proceedings. The premises in question are a residential house situated at No. 6/1 Ghoshal Bagan Lane, Howrah. It was originally owned by one Kalipada Ghosh and on his death his three surviving sons, namely, Pran Krishna, Gour Mohan and Kamal Krishna became owners of 1/3 share each. On 7-9-1948, Kamal Krishna died leaving behind him his widow Smt. Radha Rani. Thus, she inherited 1/3 rd undivided share of her husband in the said dwelling house. On the coming into operation of the Hindu Succession Act, 1956, Smt. Radha Rani became full owner of 1/3rd share of her deceased husband in the said house. She filed a suit for partition on 5-9-1960 claiming separation of her 1.3rd share in the said house amongst other properties. In the present proceedings, we are concerned only with the aforesaid family dwelling house. The suit was filed against the other two co-owners, namely, Pran Krishna and Gaur Mohan. Ultimately, after the preliminary decree a final decree came to be passed in favour of Smt. Radha Rani on 31-8-1971. Accordingly, she became entitled to partition and separation of her 1/3rd share in the said dwelling house. She made an abortive attempt to get the final decree executed but therein she did not get any relief of actual possession for number of years. In the mean while, on 8-10-1979 she executed and got registered a deed of gift in favour of her brother, the present appellant, gifting her 1/3rd undivided interest in the said dwelling house as decree to her pursuant to the final decree for partition. Armed with that gift deed, the appellant-donee who obviously was a stranger to the joint family, filed execution petition on 14-12-1981 for executing the final decree obtained by his predecessor in interest, namely, the donor Smt. Radha Rani. Pending the execution proceedings taken out by he appellant-donee, one of the judgment-debtors Pran Krishna, original first defendant, died in July, 1983. In his place, his son present Respondent No. 1. Madan Mohan Ghosh was brought on record as his legal heir in the execution proceedings. The executing Court by its order dated 17-1-1985 issued a writ of possession by appointing a Pleader Commissioner to undertake the task of suggesting partition of the suit house by metes and bounds. Then in September 1985, pending the execution proceedings original judgment-debtor Defendant No. 2 Gaur Mohan also died. It appears that thereafter the real contest remained between the appellant on the one hand and Respondent No 1 on the other. Respondent No. 1 filed an application on 12-12-1986 before the executing Court under S. 4 of the Act for enforcing his claim of pre-emption against the appellant stranger transferee of 1/3 rd undivided interest of the original title-holder Smt. Radha Rani. The executing Court by its order dated 13-8-1987 dismissed the said application of Respondent No. 1 on the ground that the said application was not maintainable after the final decree was passed in the partition suit. As stated earlier, the said view of the executing Court was not approved by the Division Bench of the Calcutta High Court in the revision application. It took the view that the said petition under the Act was maintainable as still the final decree had not got fully executed and satisfied by actual division of the property by metes and bounds and delivery of actual possession to the stranger transferee who had taken out the execution proceedings. By its order dated 17-12-1990, the High Court directed the executing Court to dispose of the application of Respondent No. 1 under Section 4 of the Act on merits with a further direction to complete the said proceedings within six months. It is the aforesaid order of the High Court which is challenged in the present appeal by special leave, as noted earlier. RIVAL CONTENTIONS:

(3.) Dr. Ghosh, learned senior counsel for the appellant, vehemently contended that on the express language of Section 4 of the Act, the application moved by respondent No. 1 was not maintainable. Dr. Ghosh relied upon a number of decisions which had taken the view canvassed by him. His submission in short was that Section 4 of the Act can be availed of by any of the parties to the litigation in the partition suit till its culmination into a final decree for partition. That even during the appeal against the final decree Section 4 can be pressed in service. That once the final decree comes to be passed and gets finally confirmed by the ultimate Court of appeal the suit comes to an end. Thereafter, when execution proceedings are taken out for executing such final decree, Section 4 of the Act would be out of picture and cannot be pressed in service against the stranger transferee of the decretal rights of one of the co-owners in the family dwelling house. Dr. Ghosh also vehemently tried to submit that the finding reached by both the Courts below that the suit property consisted of a family dwelling house and was not an open land, was also not sustainable. On the other hand, learned counsel for the respondents submitted that Section 4 is a beneficial provision which seeks to avoid the interference by the stranger transferee of co-owner"s right in a joint family dwelling house and if such strangers are permitted to come into possession of any part of such dwelling house, the peace and tranquillity of the rest of the occupant members of the joint family would be affected and in order to avoid such a contingency and possible social strife the legislature in its wisdom had enacted this provision which has stood the test of time spread over more than a century and there was no reason to restrict the application of such a benevolent section only upto the stage of final decree and not during further proceedings in execution of such final decree. It was submitted that beneficial provision of Section 4 can rightly be made applicable during execution proceedings till the final decree gets fully satisfied by division of property by metes and bounds and by actual delivery of possession of respective portions of the joint family dwelling house to the concerned shares. It is only at that stage that the executing Court would become functus officio. That till that stage is reached Section 4 of the Act can be legitimately pressed in service by any of the remaining co-owners claiming pre-emptive right to purchase the share of the stranger transferee from one of the co-owners. Learned counsel also in his turn relied upon a decision of the Division Bench of the Patna High Court in Harendra Nath Mukherjee v. Shyam Sunder Kuer, AIR 1973 Patna 142. He also submitted that in a partition suit till the decree gets fully satisfied and executed each contesting party remains as good as a plaintiff and consequently the beneficial provision of Section 4 can be pressed in service by any of the contesting co-owners till the final decree in such a suit for partition gets fully executed and implemented and consequently curtain drops on the partition proceedings between the parties for ever.