Ghosh (Roy) & Anr Vs. Partha Sarathi Ghosh  Insc 287 (9 July 2002)
Shivaraj V.Patil. D.P.Mohapatra,J.
Ghosh was the original owner of the suit property. He died on 23rd June, 1942 leaving behind his widow Smt. Mira Ghosh,
son Partha Sarathi Ghosh-who is respondent herein and two daughters namely Smt.
Srilekha Ghosh (Roy) and Smt. Sulekha Ghosh (Mitra) who are the appellants
herein. According to the law of succession prevailing then the respondent and his
mother became joint owners of the suit property subject to the provision in
Section 3(3) of the Hindu Woman's Right to Property Act, 1937. After coming
into force of the Hindu Succession Act, 1956 the widow's interest became
absolute and thus the respondent and his mother became co- sharers of the suit
property each having a moity share.
widow by a registered deed of gift dated 23.8.1968 gifted her share to the
appellants. After acquiring share in the suit property through their mother the
appellants filed a suit Title Suit No.29/70 against the respondent seeking a
decree of partition. The suit was decreed in the preliminary form on 28.2.1972
declaring 8 annas share of property of the defendant and 4 annas of each of the
plaintiffs. In the preliminary decree liberty was given to the defendant to
pre-empt the share of the plaintiff No.1 who was married. Subsequently
plaintiff no.2 also got married on 12 June, 1976.
her marriage the plaintiff no.2 had filed an application under Section 4 of the
Partition Act, 1893 (for short 'the Act') Misc. Case No.21 of 1972 praying for
pre- emption of the share of plaintiff no.1. During pendency of the suit
plaintiff no.2 got married. Thereafter the defendant filed an application
before the trial court for an order to purchase the share of plaintiff no.2.
The prayer of the defendant was rejected by the trial court vide order dated
8.7.1978. However, Misc. Case No.21/72 was disposed of by the trial court on 12th January, 1980 with a finding that both plaintiff
no.2 and the defendant will have the right to buy the share of plaintiff no.1.
Against the said order the defendant preferred an appeal before the High Court
which was decided by the order dated 23.4.1987. The appeal was allowed and the
order passed by the trial court was set aside holding that the defendant alone
was entitled to purchase the share of plaintiff no.1 as after marriage the
plaintiff no.2 lost the status of a member of the undivided family. It is not
in dispute that the order was not challenged before any higher forum.
the aforementioned decision of the High Court the defendant filed an
application under Section 4 of the Partition Act for purchasing 1/4th share of
plaintiff no.2 under the changed circumstances. The trial court rejected the application
mainly on the ground that an application previously filed by the defendant
under Section 4 of the Act had been rejected by the trial court and the order
having not been challenged had attained finality.
defendant challenged the order in revision before the High Court in C.O.No.3529
of 1992, which was decided by the High Court by the order dated 19.4.1999. The
High Court allowed the Revision Petition, set aside the order of the trial
judge and allowed the application for pre-emption filed by the defendant for
purchasing the share of plaintiff no.2. The trial court was directed to pass
all further necessary orders and directions including fixing of valuation in
terms of Section 4 of the Act. The said order is under challenge in this appeal
filed by the plaintiffs.
core question that arises for consideration in this appeal is whether the
defendant is entitled to purchase the share of his sister plaintiff no.2 under
Section 4 of the Act.
provision is quoted hereunder:
Partition suit by transferee of share in dwelling-house (1) Where a share of a
dwelling-house belonging to an undivided family has been transferred to a
person who is not a member of such family, and such transferee sues for
partition, the Court shall, if any member of the family being a shareholder
shall undertake to buy the share of such transferee, make a valuation of such
share in such manner as it thinks fit, and direct the sale of such share to
such shareholder and may give all necessary and proper directions in that behalf.
in any case described in sub- Section (1) two or more members of the family
being such shareholders severally undertake to buy such share, the Court shall
follow the procedure prescribed by sub-section (2) of the last foregoing
plain reading of the Section it is clear that there are certain conditions for
its application,such as
dwelling house must belong to undivided family;
transfer must be made to a stranger;
has filed the suit for partition and (4) shareholder claims and undertakes to
buy the share of the stranger.
condition for application of the statutory provision is that a dwelling house
belonging to an undivided family must have been transferred to a person who is
not a member of such family and such transferee sues for partition. If this
pre-condition is satisfied then if any member of the family being a shareholder
undertakes to buy the share of such transferee the Court is to make a valuation
of such share in such manner as it thinks fit and direct the sale of such share
to such share-holder.
to the case in hand it appears from the discussions in the impugned order that
the High Court has proceeded on the assumption that a daughter on getting
married ceases to be a part of the family of her father for the purpose of
Section 4 of the Act. It is on this assumption that the respondent made the
application under Section 4 of the Act to purchase the share of plaintiff no.2
who had got married during pendency of the petition filed by her under that
Section for purchasing the share of her married sister plaintiff no.1.
question for consideration is whether for the purpose of application of Section
4 of the Act a married daughter can be said to be "a person who is not a
member of such family". If the question is answered in the affirmative
then the application filed by the respondent was maintainable and could be
considered on merit. If the question is answered in the negative then Section 4
of the Act is not applicable and the application filed by the respondent is to
be rejected as not maintainable.
position is well settled that Section 4 of the Act deserves a liberal
construction because its very object and purpose is to preserve the integrity
of the dwelling house.
Mukherjee in his classical exposition of the meaning of the term 'family' in
the case of Khirode Chandra vs. Saroda Prasad, 7 Ind. Cases 436 (Cal.)
word "family" as used in the Partition Act ought to be given a
liberal and comprehensive meaning, and it does include a group of persons
related in blood, who live in one house or under one head or management. There
is nothing in the Partition Act to support the suggestion that the term
"family" was intended to be used in a very narrow and restricted
sense, namely, a body of persons who trace their descent from a common
ancestor." Therein it was further observed :
regard is had to Hindu social customs and manners, it is difficult to hold that
the term "family" is not comprehensive enough to include such a body
of persons. Indeed, in cases where there are no male children in the family and
the daughters alone are entitled to the inheritance, their husbands very often
live as members of the family, and they with their wives may not inappropriately
be treated as the "family" some members of which have shares in the
dwelling house." This decision has been considered to be a leading
authority on the question in issue. The same principle has been followed by
different High Courts in Mohomed Sulaiman Khan vs. Mt. Amir Jan AIR 1941 All
Krishna Pillai v. Parukutty Ammal AIR 1952
Mad 33; Alley Hasan vs. Toorab Hussain AIR 1958 Pat 232; and Paluni Dei v. Rathi
Mallick AIR 1965 Ori 111.
Dei case (supra) the Orissa High Court held that the defendant no.2 in the case
though was married and residing with her husband elsewhere. she at times used
to reside in her father's house and had not abandoned her intention to reside
there; she was related by blood to the family of the owner; she must therefore
be treated as a member of the undivided family qua the dwelling house of
defendant 1. She being a shareholder is entitled to buy the share of the
plaintiff-transferee. The High Court held that judgment of the Court below
rejecting her claim is contrary to law and must be set aside.
case of Gautam Paul vs. Debi Rani Paul and others (2000) 8 SCC 330 this Court
considered the question of liberal interpretation to be given to the provisions
of Section 4 of the Act. This Court made the following observations:
us now consider whether the sale to the appellant by Bibhuti Paul can be said
to be a sale to an outsider or a stranger to the family. Undoubtedly, Section 4
should be given a liberal interpretation. However, giving a liberal
interpretation does not mean that the wordings of the Section and the clear
interpretation thereof be ignored. The relevant wordings are "dwelling
house belonging to an undivided family".
it must be a dwelling house belonging to an undivided family. The further requirement
is that the transfer must be to a person who is not a member of "such
family". The words "such family" necessarily refers to the
undivided family to whom the dwelling house belongs." XXX XXX XXX "We
are in agreement with this opinion.
is no law which provides that co- sharer must only sell his/her share to
another co-sharer. Thus strangers/ outsiders can purchase shares even in a
dwelling house. Section 44 of the Transfer of Property Act provides that the
transferee of a share of a dwelling house, if he/she is not a member of that
family, gets no right to joint possession or common enjoyment of the house.
Section 44 adequately protects the family members in which an outsider can get
possession is to sue for possession and claim separation of his share. In that
case Section 4 of the Partition Act comes into play. Except for Section 4 of
the Partition Act there is no other law which provides a right to a co-sharer
to purchase the share sold to an outsider.
before the right of pre-emption, under Section 4, is exercised the conditions
laid down therein have to be complied with. As seen above, one of the
conditions is that the outsider must sue for partition. Section 4 does not
provide the co-sharer a right to pre-empt where the stranger/outsider does
nothing after purchasing the share. In other words, Section 4 is not giving a
right to a co-sharer to pre- empt and purchase the share sold to an outsider
anytime he /she wants.
even though a liberal interpretation may be given, the interpretation cannot be
one which gives a right which the legislatures clearly did not intend to
confer. The legislature was aware that in a suit for partition the
stranger/outsider, who has purchased a share, would have to be made a party.
The legislature was aware that in a suit for partition the parties are
interchangeable. The legislature was aware that a partition suit would result
in a decree for partition and in most cases a division by metes and bounds. The
legislature was aware that on an actual division, like all other co-sharers,
the stranger/outsider would also get possession of his share. Yet the
legislature did not provide that the right for pre-emption could be exercised
"in any suit for partition".
legislature only provided for such right when the "transferee sues for
partition". The intention of the legislature is clear. There had to be
initiation of proceedings or the making of a claim to partition by the
stranger/outsider. This could be by way of initiating a proceeding for
partition or even claiming partition in execution. However, a mere assertion of
a claim to a share without demanding separation and possession (by the
outsider) is not enough to give to the other co-sharer a right of pre- emption.
There is a difference between a mere assertion that he has a share and a claim
for possession of that share. So long as the stranger- purchaser does not seek
actual division and possession, either in the suit or in execution proceedings,
it cannot be said that he has sued for partition. The interpretation given by Calcutta, Patna, Nagpur and Orissa High Courts would result
in nullifying the express provisions of Section 4, which only gives a right
when the transferee sues for partition. If that interpretation were to be
accepted then in all cases, where there has been a sale of a share to an
outsider, a co- sharer could simply file a suit for partition and then claim a
right to purchase over that share. Thus even though the outsider may have, at
no stage, asked for partition and for the delivery of the share to him, he
would be forced to sell his share. It would give to a co-sharer a right to
pre-empt and purchase whenever he/she so desired by the simple expedient of
filing a suit for partition. This was not the intent or purpose of Section 4.
Thus the view taken by Calcutta, Patna, Nagpur and Orissa High Courts, in the
aforementioned cases, cannot be said to be good law." (Emphasis supplied)
In the case of Ghantesher Ghosh vs. Madan Mohan Ghosh and others (1996) 11 SCC
446 this Court interpreting Section 4 of the Partition Act made the following observations
order to answer this moot question, it has to be kept in view what the
legislature intended while enacting the Act and specially Section 4 thereof.
legislative intent as reflected by the Statement of Objects and Reasons, as
noted earlier, makes it clear that the restriction imposed on a stranger
transferee of a share of one or more of the co-owners in a dwelling house by
Section 44 of the T.P. Act is tried to be further extended by Section 4 of the
Partition Act with a view to seeing that such transferee washes his hands off
such a family dwelling house and gets satisfied with the proper valuation of
his share which will be paid to him by the pre-empting co-sharer or co-
sharers, as the case may be. This right of pre-emption available to other co-
owners under Section 4 is obviously in further fructification of the
restriction on such a transferee as imposed by Section 44 of the T.P.
Act." This Court in the case of Babu Lal vs. Habibnoor Khan (dead) by Lrs.
And ors. 2000 (5) SCC 662 considering the applicability of Section 4 of the Act
one of the basic conditions for applicability of Section 4 as laid down by the
aforesaid decision and also as expressly mentioned in the section is that the
stranger-transferee must sue for partition and separate possession of the
undivided share transferred to him by the co-owner concerned. It is, of course,
true that in the said decision it was observed that even though the stranger-
transferee of such undivided interest moves an execution application for
separating his share by metes and bounds it would be treated to be an
application for suing for partition and it is not necessary that a separate
suit should be filed by such stranger- transferee. All the same, however,
before Section 4 of the Act can be pressed into service by any of the other
co-owners of the dwelling house, it has to be shown that the occasion had
arisen for him to move under Section 4 of the Act because of the stranger- transferee
himself moving for partition and separate possession of the share of the other
co-owner which he would have purchased. This condition is totally lacking in
the present case. To recapitulate, Respondent 1 decree- holder himself, after
getting the final decree, had moved an application under Section 4 of the Act.
The appellant, who was a stranger purchaser, had not filed any application for
separating his share from the dwelling house, either at the stage of
preliminary decree or final decree or even thereafter in execution
proceedings." At this stage it will be relevant to notice the provisions
of Section 23 of the Hindu Succession Act and Section 44 of the Transfer of
Property Act, under which preferential right to acquire property in certain
cases particularly in respect of the dwelling houses, is dealt with.
said Sections are quoted hereunder:
Special provisions respecting dwelling-houses Where a Hindu intestate has left
surviving him or her both male and female heirs specified in Class I of the
Schedule and his or her property includes a dwelling-house wholly occupied by
members of his or her family, then notwithstanding anything contained in this
Act, the right of any such female heir to claim partition of the dwelling-house
shall not arise until the male heirs choose to divide their respective shares
the female heir shall be entitled to a right of residence therein;
that where such female heir is a daughter, she shall be entitled to a right of
residence in the dwelling house only if she is unmarried or has been deserted
by or has separated from her husband or is a widow." Section 44 of the
Transfer of Property Act reads as follows:
one of two or more co-owners of immovable property legally competent in that behalf
transfers his share of such property or any interest therein, the transferee
acquires, as to such share or interest, and in so far as is necessary to give
effect to the transfer, the transferor's right to joint possession or other
common or part enjoyment of the property, and to enforce a partition of the
same, but subject to the conditions and liabilities affecting, at the date of
the transfer, the share or interest so transferred.
the transferee of a share of a dwelling house belonging to an undivided family
is not 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." Although the statutory provisions are not very happily worded it
is clear from Section 23 that it expressly recognizes the right of a female
heir to reside in the family dwelling house. This is the position despite the
restriction statutorily placed on her right to claim partition of such dwelling
case of Narashimaha Murthy vs. Susheelabai (Smt.) & Ors, (1996) 3 SCC 644,
this Court considering the provisions of Section 23 of the Act in the light of
Section 4(1) of Partition Act and Section 44 of the Transfer of Property Act
made the following observations:
may now be invited to the last sentence in the provision and the proviso, for
there lies the clue to get to the heart of the matter. On first impression the
provision may appear conflicting with the proviso but on closer examination the
conflict disappears. A female heir's right to claim partition of the dwelling
house does not arise until the male heirs choose to divide their respective
shares therein, but till that happens the female heir is entitled to the right
to reside therein. The female heir already residing in the dwelling house has a
right to its continuance but in case she is not residing, she has a right to
enforce her entitlement of residence in a court of law. The proviso makes it
amply clear that where such female heir is a daughter, she shall be entitled to
a right of residence in the dwelling house only if she is unmarried or has been
deserted by or has separated from her husband or is a widow. On first
impression, it appears that when the female heir is the daughter, she is
entitled to a right of residence in the dwelling house so long as she suffers
from any one of the four disabilities i.e.
a deserted wife;
a separated wife; and
appear that female heirs other than the daughter are entitled without any
qualification to a right of residence, but the daughter only if she suffers
from any of the aforementioned disabilities.
this be the interpretation, as some of the commentators on the subject have
thought it to be, it would lead to a highly unjust result for a married
granddaughter as a Class I heir may get the right of residence in the dwelling
house, and a married daughter may not. This incongruous result could never have
been postulated by the legislature.
the proviso covered the cases of all daughters, which means all kinds of
daughters, by employment of the words "where such female heir is a
daughter" and not "where such female heir is the daughter". The
proviso thus is meant to cover all daughters, the description of which has been
given in the above table by arrangement. The word 'daughter' in the proviso is
meant to include daughter of a predeceased son, daughter of a predeceased son
of a predeceased son and daughter of a predeceased daughter. The right of residence
of the female heirs specified in Class I of the Schedule, in order to be real
and enforceable, presupposes that their entitlement cannot be obstructed by any
act of the male heirs or rendered illusory such as in creating third party
rights therein in favour of others or in tenanting it, creating statutory
rights against dispossession or eviction. What is meant to be covered in
Section 23 is a dwelling house or houses, (for the singular would include the
plural, as the caption and the section is suggestive to that effect) fully
occupied by the members of the intestate's family and not a house or houses let
out to tenants, for then it or those would not be dwelling house/houses but
merely in description as residential houses. The section protects only a dwelling
house, which means a house wholly inhabited by one or more members of the
family of the intestate, where some or all of the family members, even if
absent for some temporary reason, have the animus revertendi. In our considered
view, a tenanted house therefore is not a dwelling house, in the sense in which
the word is used in Section 23.
XXX The second question does not present much difficulty. On literal
interpretation the provision refers to male heirs in the plural and unless they
choose to divide their respective shares in the dwelling hose, female heirs
have no right to claim partition.
that sense there cannot be a division even when there is a single male. It
would always be necessary to have more than one male heir. One way to look at
it is that if there is one male heir, the section is inapplicable, which means
that a single male heir cannot resist female heir's claim to partition.
would obviously bring unjust results, an intendment least conceived of as the
underlying idea of maintenance of status quo would go to the winds. This does
not seem to have been desired while enacting the special provision. It looks
nebulous that if there are two males, partition at the instance of female heir
could be resisted, but if there is one male, it would not. The emphasis on the
section is to preserve a dwelling house as long as it is wholly occupied by
some or all members of the intestate's family which includes male or males.
in this manner, the language in plural with reference to male heirs would have
to be read in singular with the aid of the provisions of the General Clauses
Act. It would thus read to mean that when there is a single male heir, unless
he chooses to take out his share from the dwelling house, the female heirs cannot
claim partition against him. It cannot be forgotten that in the Hindu male-
oriented society, where begetting of a son was a religious obligation, for the
fulfillment of which Hindus have even been resorting to adoptions, it could not
be visualized that it was intended that the single male heir should be worse
off, unless he had a supportive second male as a Class I heir. The provision
would have to be interpreted in such manner that it carries forward the spirit
behind it. The second question would thus have to be answered in favour of the
proposition holding that where a Hindu intestate leaves surviving him a single
male heir and one or more female heirs specified in Class I of the Schedule,
the provisions of Section 23 keep attracted to maintain the dwelling house impartible
as in the case of more than one male heir, subject to the right of re-entry and
residence of the female heirs so entitled, till such time the single male heir
chooses to separate his share; this right of his being personal to him, neither
transferable nor heritable." (Emphasis supplied) Applying the ratio in the
aforementioned decided cases to the case in hand the position that emerges is
that the last owner of the suit property left one male heir (son) and three
female heirs (widow and two daughters) who succeeded to the suit property. The
widow transferred her interest in the suit property by gift in favour of her
two daughters, who in course of time got married; the two daughters filed the
suit for partition of the suit property which was a family dwelling house; the
partition suit was decreed preliminary; at the stage of execution proceedings
the petition has been filed by the male heir i.e. the brother of the plaintiffs
claiming right of pre-emption to purchase the share of one of the sisters
(plaintiff no.2). In stricto senso the provision of Section 4 of the Partition
Act has no application in the case. Neither can the plaintiffs who are
daughters be said to be strangers to the family nor is there any material to
show that they have expressed their intention not to reside in the suit
property or to transfer their interest in the same to a person who is a
stranger to the family. It is also to be kept in mind that the plaintiffs have
acquired interest in the property by gift from their mother. Therefore they
have stepped into the shoes of their mother. Under the circumstances the
petition filed by the defendant under Section 4 of the Partition Act was not
maintainable and was liable to be dismissed as premature.
same time keeping in view the object and purpose of preserving unity of the
family dwelling house for occupation of members of the family the plaintiffs
cannot be given a right to transfer their interest in the family dwelling house
in favour of a stranger. If they decide not to reside in the suit dwelling
house and desire to transfer their interest then they must make an offer to the
defendant and if he is willing to purchase the interest of the sisters then he
will be entitled to do so on payment of the consideration mutually agreed or
fixed by the Court.
persuaded to pass this Order keeping in view the interest of all the members of
the family i.e. the son and two daughters and their family members and the
importance of preserving the unity of the family dwelling house which is meant
for occupation of successors of the original owner, Sailen Ghosh.
of the view that in the context of the facts and circumstances of the case the
High Court was not right in granting the petition filed by the respondent under
Section 4 of the Act. Accordingly the order of the High Court under challenge
is modified in the manner and to the extent noted above and the appeal is
disposed of accordingly.
will be no order for costs.