BHUBAN MOHAN GUHA Vs. BROJENDRA CHANDRA GHOSE

JUDGEMENT

(1.) This appeal arises out of an application under Section 1, Partition Act (IV of 1893). The property in suit consists of a dwelling house and of certain other immovable properties. This property formerly belonged to one Ram Kamal Guha, who sold the same to his cousin Golak Nath Guha. On the death of Golak the property was inherited in equal shares by Golak's two sons Kashi and Harish. In the year 1309 B.S. Harish sold his share of the property to plaintiff Brajendra Chandra Ghose and the plaintiff's brother Upendra Chandra Ghose who was the husband of Sarala Sundari, defendant 1. The plaintiff and his brother apparently obtained possession of a portion at least of the property purchased. In the year 1935, the plaintiff instituted a suit for partition impleading his sister-in-law Sarala Sundari as defendant 1 and Chandra Mohan Guha, son of Kashi Chandra Guha, as defendant 2. A preliminary decree was passed sometime in the year 1935. Thereafter, on 6 April 1936, defendant 2 made an application under Section 1, Partition Act, to purchase the share in the dwelling house which the plaintiff and the husband of defendant 1 had purchased from his father's brother Harish. This application was heard by the learned Munsif and rejected on 5 June 1936. Thereafter on 4 August 1936, a final decree Was passed in the partition suit.

(2.) Without filing any separate appeal against the order dated 5 June 1936 rejecting his application under Section 1, Partition Act, defendant 2 filed an appeal against the final decree on 31 August 1936, and in his memorandum of appeal he claimed the right to purchase under Section 4, Partition Act, and questioned the decision of the learned Munsif on his application. The learned subordinate Judge rejected the application under Section 4 of the Act and with certain modifications confirmed the allotment which had been made in the final decree. Against the judgment of the lower appellate Court this second appeal has been preferred by the sons of defendant 2. In order to invoke the provisions of Section 4, Partition Act, it was necessary to show first that the property consisted of a dwelling house belonging to an undivided family, and secondly that a share of that property was transferred to a person who was not a member of the undivided family. If these requirements were satisfied, the defendant was entitled to invoke Section 4, unless it were shown that after the date of purchase he had lost the rights conferred by that section. The learned Munsif rejected the defendant's application for two reasons. The first reason was that there had been unnecessary delay in making the application and the second reason was that the purchaser of a share of the property was not a stranger to the family. On appeal the learned subordinate Judge rejected the argument that the application was not maintainable on account of the delay in making it, but he agreed with the learned Munsif in holding that the purchaser was not such a stranger to the family as to entitle the defendant to the relief claimed.

(3.) On behalf of the appellants, it has been pointed out that the property in suit consisted of a dwelling house and other immovable property which immediately before the purchase in 1309 B.S. belonged to Kashi and Harish, sons of Golak Nath Guha, who constituted an undivided family. It has been further pointed out that the purchasers of the share of Harish were not members of that undivided family. On the other hand, it has been argued by the learned advocate for the respondents that the property in suit was not a dwelling house belonging to the heirs of Golak but was merely a share in a larger dwelling house of which the plaintiff and defendant 1 were part owners. To appreciate this argument it is necessary to refer to the relationship between the parties. As pointed out above, the property in suit formerly belonged to Ram Kamal Guha. Ram Kamal's maternal grand-father was Ram Saran Ghose. The plaintiff and the husband of defendant 1 are the great-grandchildren of Sudharam Ghose, brother of the said Ram Saran Ghose. It appears that originally the land in suit and other lands belonged jointly to Ram Saran Ghosh and Sudharam Ghosh. The learned advocate for the respondents has contended that these properties remained as the joint property of Ram Saran Ghosh and Sudharam Ghosh, that there was never any partition of these properties and that consequently the plaintiff and defendant 1 had always been in possession of a part of the property. The question whether there had been a partition of the shares of Ram Saran and Sudharam was not investigated in the lower Courts but the plaintiff based his claim to partition wholly on the assumption that such a partition had taken place; and we are therefore constrained to assume that whatever was the original position, there was a partition between Ram Saran and Sudharam and the property in suit fell to the share of Ram Saran. The arguments therefore that this property is still merely a portion of the undivided property formerly owned by Ram Saran and Sudharam cannot be entertained.