K. VISWANATHAN AND ANR. Vs. K. GANAPATHI IYER

JUDGEMENT

(1.) THE petition is directed against an order of the District Munsif of Madurai Town made on an application by defendants 5 and 6 who are petitioners in this case under Section 4 of the Partition Act, 1893. It is common ground that the plaintiff -respondent is entitled to an undivided half share in the dwelling house in which the petitioners own a third share. The plaintiff is a stranger for all practical purposes though Counsel for the respondent would say that he is a distant relative. The application was for sale of the half share to the petitioners. The Court below dismissed it on the ground that as early as in 1929 the family of six brothers became divided in status and on account of that fact Section 4 of the Partition Act would be inapplicable. The Court below was asked to decide as to whether the house was capable of partition but it stated that the question could be decided only after the receipt of the Commissioner's report.

(2.) IT is argued for the petitioners and I think, quite rightly, that the Court below misdirected itself as to the applicability of Section 4 to the facts of this case. Section 4(1) says 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. That the plaintiff is not a member of the family is not in dispute. The suit which is instituted by him is one for partition of his half share. The only question, therefore, is whether the dwelling house belonged to the undivided family. The Court below construed the words " undivided family " in the sense of a joint Hindu family whose status as such remains intact. Obviously this construction is erroneous. The section is applicable not merely to the Hindu Community but also to other communities and that being the case the words " undivided family " has no reference to the status but to the factum of there being no division actually as between the members of the family to which the house belongs. Recently, Natesan, J., in Remaswami Pillai v. Subramania Pillai : (1966)2MLJ132 , expressed a similar view. The learned Judge said:

(3.) FOR the respondent the order of the Court below is supported by a contention that Section 4 offends Article 19(1)(f) of the Constitution. I do not think that the contention is well -founded. It is true that Section 4 in so far as it provides for a compulsory sale of the share of the stranger purchaser to one or more of the members of the family who apply for the same is a restriction on the right to hold and dispose of the property. But the restriction clearly appears to be reasonable and also in public interest. In the context of the law of pre -emption, Bhauram v. Baljnath : AIR1962SC1476 , held that a right of pre -emption in favour of a co -sharer of a dwelling house would be reasonable restriction in public interest. The Court held: