MALEK DOSUMIYA JAMIYATMIYA HEIRS OF DECD GULAMRASOOL SARFUDDIN MALEK Vs. PATHAN RASULKHAN MOHMEDKHAN HEIRS OF DECD DULHANBIBI

JUDGEMENT

(1.) A very serious problem which can make an atheist turn to God in desperation and demands immediate attention has crossed our path in the course of our search for a solution to the question of law which has been referred to this Full Bench viz. whether in order to avail of the right conferred by sec. 4 of the Partition Act of 1893 it is an essential pre-condition that the claimant must be arraigned as plaintiff and not as a defendant. The problem highlighted is whether the concept of National Integrity notwithstanding and the Constitutional command of equality before law notwithstanding can the right conferred on a citizen by the very same provision of an All-India enactment be availed of only provided he is on the Indian soil at Calcutta but not if he is on the Indian soil at Bombay ? Call the meaning and content of an All-India statute depend on whether it is being interpreted in one State of India or in another ? Can the conscience of India countenance a situation where law means one thing in Bombay and just the contrary in Calcutta ? We will be utterly failing in our duty if we did not underscore the compulsion to remedy this situation which has been tolerated too long. We will therefore return to this problem when we have dealt with the question referred to us which must engage our immediate attention.

(2.) We must address ourselves right now to the question referred to us in regard to the interpretation of sec. 4 of the Partition Act which reads thus:- (1) 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. (2) If in any case described in sub-sec. (1) two or more members of the family being such shareholders severally undertake to buy such share the Court shall follow the procedure prescribed by sub-sec. (2) of the last foregoing section". Two High Courts namely High Courts of Bombay and Allahabad broadly speaking hold the view that the right conferred by sec. 4 of the Partition Act to compel a stranger transferee of an interest of a member of a joint family in a dwelling house can be availed of provided and only provided he is arraigned as a plaintiff in the proceeding and sues for partition. A diametrically opposite opinion is expressed by four High Courts namely Calcutta Patna Orissa and the former High Court of Nagpur which have taken the view that such a right vis-a-vis a stranger transferee can be asserted irrespective of the fact whether he is arraigned as plaintiff or a defendant. It may be stated that the Madras High Court has cast its lot in favour of both the opposing views in the sense that a learned single Judge has in 1950 taken the view propounded by the Bombay High Court whereas another learned single Judge has subsequently in 1967 taken the opposite view though on the premise that the earlier judgment was distinguishable on facts. It is this conflict of opinion between two schools of interpretation one represented by the Allahabad and Bombay High Courts and the other represented by the Calcutta Patna Orissa and Nagpur High Courts which has given rise to the present reference. It is a matter of vital significance for this High Court in view of the fact that the Bombay view reflected in Khanderao v. Balkrishna A.I.R. 1922 Bombay 121 being the view of a Division Bench of the then High Court of Bombay prior to the reorganisation of States is binding to this High Court and it may be necessary to overrule the earlier decision if the other view prevails. 3 The Calcutta Patna and the Orissa High Courts as also the former High Court of Nagpur and the learned single Judge of the Madras High Court who has distinguished the view propounded by the same High Court in an earlier Judgment have reached the conclusion that the right conferred by sec. 4 on a member of an undivided family in respect of a dwelling house to compel a stranger transferee from another member of the family to sell his interest at a valuation made in accordance with the provisions therein can be exercised irrespective of whether the stranger transferee is arraigned as a plaintiff or a defendant principally on the basis of four reasons viz. :- (1) The object of the provision would be wholly fulfilled by adopting this view whereas it would be partly frustrated if the Bombay view is accepted. (2) The protection afforded by sec. 44 of the Transfer of Property Act to secure that a stranger did not force his way into a family dwelling house and cause the resultant disruption or hardship would be defeated by taking the Bombay view. (3) The expression to sue occurring in sec. 4 is capable of interpretation which would fulfil rather than frustrate the object underlying sec. 4 for the expression to sue signifies not only to prosecute but also to defend or to do something which the law requires for the better prosecution or defence of the case. (4) In a suit for partition every party is in the position of a plaintiff. The earliest decision which has subscribed to this point of view is that of the Calcutta High Court in Satyabhama v. Jatindra Mohan A.I.R. 1929 Calcutta 269. The matter came up before a Division Bench consisting of Suhrawardhy and Jack JJ. The Division Bench sought support from the well-known principle that a party in a partition suit whether a plaintiff or a defendant is at the same time the plaintiff as well as the defendant. The Division Bench proceeded to observe that this dual capacity of a party in a partition suit does not preclude even a defendant who claims a share into a dwelling house from being treated as plaintiff for the purposes of sec. 4 of the Partition Act The decision rendered by the Bombay High Court earlier in Khanderaos Case which was decided in 1922 was cited before the Division Bench of the Calcutta High Court but the learned Judges distinguished the said decision on two grounds which are not relevant for the purpose of the present discussion. They however did not follow the Bombay view to the contrary. In 1937 this question arose before Stone C J. in the Nagpur High Court in Laxman v. Mt. Lahana Bai A. I. R. 1937 Nagpur 4. The learned Judge apart from placing reliance on Satyabhamas Case decided by the Calcutta High Court concurred with the said view on an additional ground based on the interpretation of the expression to sue. Reliance was placed on the interpretation of the expression to sue quoted in Strouds Judicial Dictionary on the basis of Hesketh v. Lee (1866-73) 2 W.M.S Saund 94 to wit:-

(3.) We may now turn the Bombay reasoning articulated in Khanieraos case. We can do no better than to quote the relevant portion from the judgment of Macleod C. J. and the concurring opinion of Shah J. Macleod C. J. has dealt with the question as under :-