KHIRODE CHANDRA GHOSHAL Vs. SARODA PROSAD MITRA

JUDGEMENT

(1.) Wearer invited in this Rule to set aside an order, by which the Court below has refused an application made by the petitioners under Section 4 of the Partition Act of 1893. The petitioners were two of the defendants in a suit for partition of joint property, commenced by the plaintiff opposite party, who has purchased an one-fourth share from one of the share- holders. In the schedule attached to the plaint. The subject-matter of the litigation was described In five parcels, the first of which, covering an area of two and a-half bighas, was said to be the family dwelling house of the defendants, inclusive of tank and appurtenances. The other parcels, which cover about 5 bighas and a-half, appear to adjoin the first parcel. The boundaries given are those of the entire land comprised in the five parcels. A preliminary decree was made on the 23 February 1909, and we are informed that it was subsequently confirmed on appeal. The title of the plaintiff was declared to an one-fourth share of the entire property, which the Court found was included within one set of boundaries, and directions were given for partition by metes and bounds by a Commissioner. On the 25 April 1910, the petitioners applied to the Court, under Section 4 of the Partition Act of 1893, for an order that the share of the dwelling house, purchased by the plaintiff, might be valued, and transferred to themselves. The application was treated as a petition of objection, and was opposed by the plaintiff. The Court dismissed the application on three grounds, namely, first, that the application could not be entertained after the preliminary decree; secondly, that, as the ground, urged in support of the application, had been taken in the memorandum of appeal presented against the preliminary decree, the matter could not be re-opened; and, thirdly, that, as the subject-matter of partition consisted, not only of the dwelling house, but of other lands as well, the defendants would be amply protected, if by a, suitable distribution, no part of the dwelling house was allotted to the share of the plaintiff. The applicants then moved this Court, and obtained the Rule now under consideration. In support of the Rule, it has been urged by the learned Vakil for the petitioners, first, that the application was made at the proper stage and ought to have been entertained and considered on the merits; secondly, that the petitioners are entitled as a matter of right to an order under Section 4 of the Partition Act, because it is not disputed that a share of the dwelling house of the defendants has been transferred to the plaintiff, who is not a member of the family; and, thirdly, that the Court ought to have taken evidence to determine what portion of the property, comprised in this suit, may be properly described as the dwelling house" of the parties, which expression, it is suggested, includes not merely the structures but also the land on which the structures stand, and such portion of the adjoining lands as is necessary for the convenient use and occupation of the house as the dwelling house of the family. Each of these grounds has been contested on behalf of the plaintiff opposite party and it has, further, been argued in answer to the Rule first, that the defendants do not constitute a "family" within the meaning of Section 4 of the Partition Act, as they are not, all of them, the descendants of a common ancestor; and, secondly, that even if they are assumed to be members of a family, they do not constitute an undivided family," inasmuch as some of them do not reside in the dwelling house in question. After careful consideration of the arguments which have been addressed to us on both sides, we have arrived at the conclusion that the order of the Court below cannot be supported) that the application made by the petitioners should be heard on the merits, and an order made under Section 4 of the Partition Act in respect of such portion of the property under partition as may properly be described as the "dwelling house."

(2.) In so far as the first point urged in support of the Rule is concerned, it is clear that the application, under Section 4, of the Partition Act, has been made at the proper stage. Section 4 does not provide that the application contemplated by it should be made before the preliminary decree; on the other hand, it is obvious that the application cannot be made till the rights of the parties have been determined by the preliminary decree. To take one illustration it is conceivable that there may be a dispute between the parties as to whether the plaintiff has really acquired any interest in the dwelling house or not, and whether, he is entitled to demand a partition of it. Such question must, clearly, be determined before a defendant can be expected to make an application under Section 4. As was pointed out by this Court in the case of Satya Kumar V/s. Satya Kirpal 10 C.L.J. 503 : 3 Ind. Cas. 247, the question, whether a particular property alleged to be joint really possesses that character, must be determined before the preliminary decree is made; all questions involving the title of the parties and their right to any relief within the issues, are judicial in character, and must be determined by the Court, such determination to be made ordinarily by the Court, and incorporated in the interlocutory decree before any partition is made or directed. An application, under Section 4, therefore, cannot be properly made, before it has been declared by the preliminary decree, that the plaintiff, who is not a member of the family, has acquired a valid title to a share thereof, and is entitled to claim partition. This view has been adopted in the cases of Hira Moni V/s. Radha Charn 5 C.W.N. 128; Kadir V/s. Abdul Rahiman 24 M. 639, Abdus Samad V/s. Abdur Razzaq 21 A. 409 and Bai Hirakore V/s. Trikamdas 32 B. 103 : 10 Bom. L.R. 23 : 3 M.L.T. 141, where it was ruled that an application, under Section 2 or Section 4 of the Partition Act, may be made after the preliminary decree. The case of Kali Kumar v. Brahmananda 7 C.L.J. 98, where the earlier authorities do not appear to have been brought to the notice of the Court, may, at first sight, seem to lend some support to the contrary view. The case, however, is really distinguishable, because there the parties had proceeded, not merely beyond the preliminary decree, but also be-yond execution proceedings based thereon, and had actually found it necessary to institute a suit under Section 331 of the Civil Procedure Code of 1882, by reason of an obstruction by a claimant in good faith other than the judgment-debtor. It is needless for us to express any opinion upon the question, whether, even at such stage, it may not be open to one of the parties to avail himself of the benefit of Section 4 of the Partition Act. There can, however, be no room for controversy that the application in the case before us, made immediately after the confirmation of the preliminary decree by the Court of appeal, was amply in time, and ought to have been considered on the merits. We may add, further, that the mere circumstance that this matter had been mentioned in the memorandum of appeal presented against the preliminary decree, is no bar to this application. Thy ground could not have been entertained at that stage, and, as a matter of fact, was not considered. We hold, therefore, that the first ground urged by the learned Vakil for the petitioners in support of the Rule, must prevail.

(3.) In So fat as the second ground urged by the learned Vakil for the petitioners, is concerned, it is, in our opinion, unanswerable. The learned Judge, in the Court below, appears to have thought that the operation of Section 4 of the Partition Act may be avoided if the property comprised in the suit includes, in addition to the dwelling house, other lands owned by the parties. This is clearly erroneous. The elements which must co-exist to attract the operation of Section 4, are, first, that the dwelling house should belong to an "undivided family," secondly, that a share thereof should have bean transferred to a person who is not a member of Such family; and, thirdly, that the transferee should sue for partition. In the case before us, it does not appear to have been disputed in the Court below, that the dwelling house did belong to an undivided family; and that a share thereof had been transferred to the plaintiff who was not a member of the family. As the suit was brought by such transferee for partition, the application under Section 4 was obviously tenable [Balshet V/s. Miran Sahib 23 B. 77]. The circumstance that the plaintiff had purchased, in addition to a share of the dwelling house, a share of other lands as well of which he sought partition in the suit as framed, does not render inapplicable the provisions of Section 4. Section 4 does not provide that if the purchaser has acquired an interest not merely in the dwelling house of the family, but also in other lands, he can resist the transfer of the share of the dwelling house to such member of the family as may undertake to buy it at a valuation made by the Court. It is obvious that the results of the two conflicting views would be widely divergent. If a purchaser of the dwelling house and of other lands is held to be under an obligation to transfer his share of the dwelling house to a member of the family under the provisions of Section 4, he may, upon partition, obtain only such an allotment of the other lands as would represent the value of his share thereof; on the other hand, if the view taken by the Court below is well-founded, and the purchaser is under no obligation to transfer his share of the dwelling house to the applicants under Section 4, and if, upon the partition, his allotment does not, upon ground of convenience, comprise any portion of the dwelling house, it must, necessarily, include a larger portion of the other lands than would correspond to his share therein; in other words, he must be awarded a larger portion of the other lands so as to compensate him for his share of the dwelling-house. This, clearly, was not contemplated by the Legislature. It is, in our opinion, immaterial whether the stranger purchaser acquires a share in the dwelling-house only, or purchases a share of the other lands of the family in addition--in either event, a member of the family, who is a share-holder in the dwelling house, is entitled to the benefit of the provisions of Section 4. If, therefore, it is established that the dwelling house in question belongs to an undivided family, it becomes indisputable that the petitioners are entitled to an order, under Section 4, as a matter of course. The second ground urged in support of the Rule must, consequently, prevail.