SUNDARI BEWA Vs. RANKA BEHARA

JUDGEMENT

(1.) THIS second appeal has been filed by defendant 1 against the concurrent judgement of the courts below decreeing the plaintiff's suit.

(2.) PLAINTIFF, defendants 1, 4 and 5 are members of a joint Hindu family as would appear from the genealogy given below.

(3.) ON a dissection of Section 4 it is manifest that the following conditions must exist before the right of pre-emption can be claimed thereunder, viz., (i) there must be a dwelling house in existence belonging to an undivided family; (ii) a share thereof should have been transferred to a person who is not a member of such family, (iii) the transferee should sue for partition, that is to say, claim partitioning of his share. In absence of any of those conditions the provisions of the section are not attracted. Thus, where the dwelling house has been divided by the members of the family according to their shares and separate allotments have been amongst themselves, the right to buy out a stranger-purchaser becomes extinguished. As held in AIR 1950 Cal 111 "undivided family" means a family not divided who owns a dwelling house which has not been physically partitioned according to shares. The essence of the expression is that the house itself should be undivided amongst the members of the family and the emphasis is on the 'undivided character' of the house and it is this attribute of the house which imparts to the family the character of 'undivided family'. The expression "share of a dwelling house belonging to an undivided family" in Section 4 which seems to have been adopted from Section 44 of the Transfer of Property Act points to the same conclusion that the dwelling house must not have been divided amongst members of the family by separate allotment. It is only after separating the shares and assigning specific portions to the co-owners that the family becomes divided qua the dwelling house. Thus, when this stage is reached, Section 4 ceases to apply. Cases may arise when shares have undergone numerical division resulting in disruption of status, but the members of the family retain common enjoyment and in such cases, it would seem having regard to the object of this piece of legislation indicated above, that the right to buy out a stranger transferee would subsist. This finds support in AIR 1930 Mad 561. Section 44 of the Transfer of Property Act while conferring on a transferee of a share of a dwelling house belonging to an undivided family who is not a member of the family, a right to claim partition and separate possession of his purchased share, disentitles him to joint possession or other common or part of the enjoyment of the house so long as the dwelling-house retains its undivided character. This embargo is lifted as soon as the undivided character of the dwelling-house disappears at the instance of the members of the family suing for general partition. The right to claim partition is limited right which extends to carving out his purchased share and the suit for partition filed, by the stranger-purchaser does not disrupt the joint status of the non-alienating members of the family. Section 4 of the Partition Act has to be construed in the context of Section 44 of the Transfer of Property Act and when so construed the expression "such transferee sues for partition" obviously refers to the limited right of partition granted under Section 44 of the Transfer of Property Act. Take a case where the transfer of a separated share of the dwelling-house has been made after there has been a division by metes and bounds and there is nothing in Section 4 which prevents a stranger-purchaser from intruding himself upon that divided share which he has purchased. Thus, the object does not include a case where the members have partitioned the dwelling house by metes and bounds by themselves and are in exclusive possession of separate portion of the same. The right of pre-emption conferred by Section 4 is not an absolute one, and cannot be exercised in all circumstances. So where the stranger-purchaser can take possession of his purchased share which has been allotted in a partition suit to the vendor-cosharer without any prohibition in law, there is no logic in refusing the same in a case where a co-sharer sues for general partition in which all other co-sharers also claim allotment of their shares and where the purchaser is also a party. The effect of a general suit for partition of the dwelling house at the instance of a co-owner where other co-owners also claim assignment of specific portions to them towards their share, the undivided family ceases to exist as such qua the dwelling house which is already in process of division by metes and bounds. So even if in such a case the stranger-purchaser claims partition of his share as a defendant in that suit for general partition, Section 4 of the Partition Act is not attracted as the basic condition for its application disappears on institution of such a suit for general partition. Section 4 must, therefore, be taken to mean that when the purchaser is enforcing his right under the sale-deed by a suit for partitioning his share only and the family members themselves do not wish to disrupt their undivided status, and are not desirous of dissolving the integrity of the property that the law steps in to prevent the transferee from intruding upon such joint family by giving the right of pre-emption to the other co-sharers. In other words, it means that when there is a possibility of the undivided joint family continuing in the dwelling-house that the law comes to the aid of such family, by compelling the stranger to part with his interest in favour of the joint family or any one member thereof. So the stricter view is more reasonable and is in accord with the plain and literal meaning of the section. But where the members of a family are themselves disrupting the status and integrity of the property, there is no object of the Act which requires to be safeguarded. Thus, having all the varying circumstances in mind, the reasonable interpretation of Section 4 would be that it is only in a case where a stranger-purchaser is suing for partitioning off his share as against the joint family that the need for exercising the right of preemption arises. Even in cases, of partition instituted at the instance of the stranger-purchaser where all the other co-sharers also claim to partition off their shares as well, the right of pre-emption will stand extinguished, because in that case the object, viz.. maintenance of joint family status and preservation of integrity of property and exclusion of strangers from the family and their joint possession is frustrated by themselves on whom the law has conferred the right of pre-emption. In this view of Section 4 which I hold to be the correct view, the plaintiff is not entitled to any relief under Section 4 of the Partition Act and the suit must therefore fail.