SM PAKIJA BIBI Vs. ADHAR CHANDRA NATH

JUDGEMENT

(1.) In this appeal by the defendants several points of law have been raised. The case of the plaintiff respondent is that they acquired the property in suit including cadastral survey plot 1304 of defendant 7 in January 1922. The property in suit belonged to the father of defendant 7 and to Pakija who is defendant 1 in the suit and it is said that three keras and odd land was inherited by the sisters from their parents. Shortly after the death of the father of defendants 1 and 7 a solenama was filed before the Collector in proceedings taken under the Land Registration Act for mutation of names and the name of defendant 1 was registered in respect of the disputed plots and it was stated in that solenama that for over 30 years defendant 1 was in exclusive occupation of the disputed lands. It was also stated that on payment of Rs. 250 defendant 7 gave up whatever right she had in the disputed properties to defendant 1. This solenama was in the year 1914. There were partition proceedings, however, between defendant 1 and defendant 7 in which the disputed lands were included. The contention of the defendants is that whatever rights plaintiffs vendor defendant 1 had in the disputed properties have been extinguished both by adverse possession and the solenama which was executed in 1914. Both the Courts below have decreed plaintiffs suit and have held that the solenama was not admissible in evidence for want of registration. Against the decision of the lower appellate Court affirming the decree of the Munsif in favour of the plaintiffs, now respondents, a second appeal has been taken to this Court and it has been contended by the learned wakil for the appellants that the Courts below have erred in law in rejecting the compromise petition from evidence on the ground that it was not registered. His argument is that as it formed part of the mutation proceedings and the solenama was referred to in the order-sheet of the Collector no registration was necessary having regard to the provisions of Section 17, Registration Act. It is conceded that the solenama did not form a part of the decree of the Land Registration Collector. It was not incorporated in the same and even assuming that the decree of the Land Registration Collector was a decree of a Court within the meaning of Section 17, Clause (2), Sub-clause (6) as the solenama was not incorporated in the Land Registration decree or order Section 17, Clause (2), Sub-clause (6) did not apply to the present case and as for the extinction of the right of defendant 1 to the disputed properties of defendant 7 it was necessary that there should be a deed of sale which in order to be effective was necessary to be registered having regard to the provisions of, Section 54, T.P. Act, the solenama has rightly been held not to be admissible in evidence. It is said next that at any rate there are admissions in the solenama which would go to show that defendant 7's title to this property has been extinguished and the title vested in defendant 1 sometime before the execution of the deed of sale in favour of the plaintiff in 1922. The admissions, however, are to the effect that defendant 1 has been in exclusive occupation of the disputed lands. That alone would not create adverse possession as against the cosharer, namely, the plaintiffs vendor, that is defendant 7. After the solenama which was executed in 1914 more than 12 years had not elapsed when the deed in favour of the plaintiff was executed. Consequently the title of the plaintiffs or the plaintiffs vendor cannot be said to have been extinguished by that date.

(2.) It has next been argued that no deed was necessary to effect the transfer as defendant 1 was put in possession and reliance has been placed on the class of cases of which the case of Mahomed Musa V/s. Aghore Kumar Ganguli A.I.R. 1914 P.C. 27, is a type. That case, however, is distinguishable. There, the possession was transferred long before the Transfer of Property Act came into operation. There were actings and conduct of the parties for over half a century and the Judicial Committee of the Privy Council in those circumstances laid down that although a deed was not executed having regard to the long course of the actings and conduct of the parties the defect of the non-existence of the deed was immaterial. I think, therefore, that the contention raised by the appellants on this part of the case cannot be sustained. A special ground has been taken with regard to the C.S. plot 1304 which is said to be a homestead on which there is a dwelling house. It is said that by reason of Section 44, T.P. Act no decree for joint possession could be given to the plaintiff in respect of this dwelling house. The iearned District Judge in appeal has given the following reasons for coming to the conclusion that Section 44 does not apply to the facts of the present case. He says: There must be joint management in an undivided family to save the bari and allow the other occupants of that bari the privilege of Section 44, T. P. Act. No one is going to contend with any degree of reason that joint possession is to be denied to a purchaser in a case like this, where the vendor is living away with her husband for many years. Any jointness of management ceased with her severance from home at marriage. Appellant therefore relies in vain on Pranjivan Dayaram V/s. Bai Reva [1880] 5 Bom. 482, and it is not necessary to refer to Khirode Chandra V/s. Saroda Prosad [1910] 12 C.L.J. 525, for definition of family which was only mentioned as showing "that the sister living away was a part of the family. This is not denied, but there is no presumption of jointness unless it is shown.

(3.) I think the learned District Judge has taken a somewhat narrow view of the scope of Section 44. The dwelling house is the paternal property of two sisters, detendants 1 and 7 are entitled to live in this house as member of the joint un-divided family. It is said that defendant 1 is actually living in this house. It is true that defendant 7 is living away. But the requirements of Section 44 is satisfied if it is shown that the house is an undivided house and that occasionally the members of the family, namely, two sisters in this case reside in the house. It is unnecessary to constitute an undivided family for the purpose of Section 44 that the members of the family should have constantly resided in the dwelling house nor it is necessary that they should be joint in mess. Reference may be made to the cases of Sultan Begam V/s. Debi Prosad [1908] 80 All. 324 and Vaman Vishnu Gokhale V/s. Vasudev Morbhat Kale [1899] 23 Bom. 73. In the latter case Farran, C. J., pointed out that it is ownership of the dwelling house and not its actual occupation which brings the provisions of 8. 4, Partition Act, into play. It will be noticed that the same words "undivided family " which occur in Section 44, T.P. Act also occurs in Section 4, Partition Act (Act 4 of 1893). In this view, I think so far as plot 1304 is concerned the decree of the Courts below in favour of the plaintiff for joint possession cannot be sustained. The title of the plaintiff to the half-share in plot 1304 is established but the decree for joint possession given in his favour is set aside. It will be open, however, to the plaintiff to institute a suit for partition in respect of the same.