JAGATBANDHU BISWAS Vs. ISWAR CHANDRA NANDY

JUDGEMENT

(1.) This appeal is on behalf of the plaintiffs and it arises out of a suit commenced by them for establishment of their title to one-third share of the property in suit and for recovery of joint possession along with the defendants. The material facts lie within a very short compass and are not in controversy. The subject-matter of dispute is a tank which appertains to noabad taluk Bhabani Charan which originally belonged to one Gour Hari Nandi in taluki right. On Gour Hari's death, it devolved on his three sons, namely, Iswar Chandra (defendant l), Chandra Kumar (defendants) and Sasi Kumar. Sasi Kumar made a gift of his one third share in the property to his wife Mallikabala who is defendant 2 in the suit. It is not disputed that the tank was and is enjoyed as a part of the dwelling house owned by this family of three brothers. On 15-9-1929, the interest of Chandra Kumar in the tank was put up to sale in execution of a money decree against him obtained by a third party, and it was purchased by one Mohendra Chandra Majumdar. Mohendra took symbolical possession of one-third share of the tank on 22-11928 (sic). Later on, he sold his share of the tank along with other properties to Syama Charan Biswas, the predecessor of the plaintiffs, by a kobala, dated 23 3-1930. Syama Charan, it is said, enjoyed the tank jointly with the other co-sharers while he was alive, and after his death, his successors, the present plaintiffs, were also in joint possession, but they were dispossessed by the defendants on 10-12-1939, which led to the institution of the present suit.

(2.) The defence, in substance, was that the disputed tank being a part and parcel of the defendants homestead, the plaintiffs who were strangers to the family were not entitled to any relief by way of joint possession, and their only remedy was by a suit for partition. Both the Courts below gave the plaintiffs a declaration of title to the extent of one-third share in the tank in suit, aid they concurred sin dismissing the plaintiffs claim for joint possession on the ground that they, being outsiders, were not entitled to joint possession under the provision of Section 44, T.P. Act. The plaintiffs have now come up on second appeal to this Court. Mr. Chandra Sekhar Sen, appearing in support of the appeal, has contended before us that the Courts below erred in law in holding that the provision of Section 44, T.P. Act, was applicable to the facts of the present case. It is argued that the plaintiffs title being based upon an involuntary sale in execution of a decree of a Court, Section 2 (d), T.P. Act, would exclude the operation of Section 44 of the Act; and if Section 44, T.P. Act, is-out of the way, there is no other law which stands in the way of the plaintiffs obtaining joint possession of their share of the property to which they admittedly have title.

(3.) Now, para. 1 of Section 44, T.P. Act, lays down the general rule that the transferee of a share in a joint property acquires all the right, title and interest which the transferor had at the date of the transfer, subject to all conditions and liabilities affecting the interest thus transferred. This includes the right to joint possession which his predecessor had, but as the presence of a stranger in a family dwelling house might lead to serious breaches of the peace, para. 2 which is a sort of proviso to the main provision lays down that: Where the transferee of a share of a dwelling house belonging to an undivided family is riot a member of the family, nothing in this Section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.