BHIM SINGH Vs. RATNAKAR SINGH

JUDGEMENT

(1.) THE defendants 7 and 10 are in appeal against a confirming judgment of the learned First Additional Subordinate Judge of Cuttack in a suit for permanent injunction restraining those two defendant-appellants from jointly possessing the disputed house along with the plaintiff and the defendants 1 and 2.

(2.) THE plaintiff claimed that he and the defendants 1 and 2 are the descendants of Arta. THE defendants 3 and 12 are the descendants of Fakir and Khosali. THE plaintiff and the defendants 1 and 2 have no connection with the other defendants. Plot No. 1619 accommodates the family residential house and plot No. 1618 is the Ban. THEre is a tank on plot No. 1630 adjacent to the further north of plot No. 1618. All these three plots, namely, plots Nos. 1618, 1619 and 1630 constitute the homestead. In the current settlement record-of-rights, Lofan, Jogi, Bhogi and Bhikari were recorded in respect of half share and the defendants 3 and 12 were recorded in respect of the other half in these plots. THE plaintiff alleges that there had been a complete partition between Arta and the ancestors of the defendants 3 and 12 in regard to plots Nos. 1618 and 1619. THE tank had not been partitioned, but for convenience, the eastern ghat was being used by the plaintiff and the defendants 1 and 2 while the northern ghat was being used by the defendants 3 to 12. THE defendant No. 1 alienated his 1/3rd share in the properties now in dispute along with other properties to defendants 7 and 10 under a registered sale deed dated 4-10-1955, for an alleged consideration of Rs. 1,000/-. THEse transferee-defendants are about to take forcible possession of a part of the homestead on the plea that it represents the 1/3rd share sold to them. THE transferee defendants are strangers and are not entitled to joint possession with the plaintiff and are also not entitled to interfere with the possession of the plaintiff.

(3.) THERE is not much controversy that the provisions of Section 4 of the Partition Act and Section 44 of the Transfer of Property Act are complementary to each other and the terms "undivided family" and "dwelling house" have the same meaning in both the sections. "Family" is a term of wide import and is not restricted to a body of persons who can trace their descent from a common ancestor. It is often understood to include a group of persons who live in one house under one head or management. As was held in the case of Paluni Dei v. Rathi Mallik, AIR 1965 Orissa 111 :" The term 'family' is not defined in the Act. It has been consistently held that it would neither be possible nor desirable to frame a comprehensive formula or an exhaustive definition to indicate the meaning of the term 'family'. In Khirode Chandra v. Saroda Prosad, (1910) 7 Ind Cas 436 (Cal) Sir Ashutosh Mukherjee's classical exposition of the meaning of the term 'family' cannot be improved upon. After a thorough discussion, their Lordships' conclusion was couched in the following language :