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Report No. 70

40.21. Undivided family.-

In section 44, "undivided" family includes a group of persons related in blood who live in one house or under one head or management. This is the interpretation placed on the word "family" by Ashutosh Mookerjee, J. with reference to section 4 of the Partition Act,1 and it should apply to section 44 also.

1. Khirode Chandra v. Saroda Prasad, (1910) 7 Indian Cases 436, cited in Paluni Devi v. Rathi Mailick, AIR 1965 Ori 111.

40.22. Belonging to undivided family.-

It is also well established that the expression "undivided family" merely means a family which is not divided qua the dwelling-house.1 It is not confined to a Hindu joint family or a joint family. The essence of the matter is that the house itself should be undivided amongst the members of the family who are its owners.2

Chakravarti C.J.'s observations are of interest:3

"But assuming that the house concerned must be a residential house of the members of the family owning it, I am altogether unable to agree that any suspension of occupation or, for the matter of that, the absence of the owners of the house therefrom or an occupation or terminable occupation by tenants, can have the effect of making the house cease to be a dwelling-house. As is well known, the object of both section 4(1), Partition Act and section 44, Transfer of Property Act, is to keep off strangers who may purchase the undivided share of some co-owner of an immovable property and so far as dwelling-houses are concerned, to make it possible for the co-sharer, who has not sold his share, to buy up the stranger purchaser.

The whole object therefore is to provide for peaceable privacy. The need for making such provision cannot possibly come to an end, if, by reason of special circumstance the owners of the house find it necessary to let it out to tenants for a time or to allow it to be occupied by a licensee. It has already been held in cases, too numerous to mention, that in order that an application under section 4(1), Partition Act, may lie, it is not necessary that the co-sharer owners should be in constant residence at the house. From that position to the position where the house has been let out to tenants, is but a short step forward."

1. Bhim Singh v. Ratnakar, AIR 1971 Ori 198.

2. Boto Krishna v. Akhoy Kumar, AIR 1950 Cal 111.

3. Dulal Chandra v. Gosthabehari Mitra, AIR 1953 Cal 259 (260), para. 6 (Chakravarti, C.J. and G.N. Das, J.).

40.23. Undivided family.-

An undivided family means simply a family not divided qua the dwelling-house-in other words, a family which owns a dwelling-house and has not divided it. It does not mean a Hindu joint family or even joint family. The members need not be joint in mess. The essence of the matter is that the house itself should be undivided amongst the members who are its owners.1

1. Bheim Singh v. Ratnakar, AIR 1971 Ori 198.

40.24. Section 4 analogous to section 44, Transfer of Property Act.-

Section 4 of the Partition Act, 1893, is also based on the same principle as forms the basis of section 44, Transfer of Property Act. As the two provisions are supplementary to each other, courts have always tried to ensure that they are construed in harmony with each other.1

1. Cf. Boto Krishna v. Akhoy Kumar, AIR 1950 Cal 111 (113), para. 11 (R.P. Mookerjee and P.N. Mitra,

40.25. Section 4, Partition Act.-

Section 4 of the Partition Act, 1893, has been described as a logical sequel or corollary to section 44 and makes certain provisions relevant to the topic under consideration. The relevant portion of section 4(1) is quoted below:

"4.(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 share-holder 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 share holder and may give all necessary and proper directions in that behalf."

40.26. Section 4, Partition Act, 1893.-

Section 44 having provided that the stranger purchaser is not entitled to joint possession or other common or part enjoyment, section 4 of the Partition Act takes the next step, and enables the members of the family to buy out the outsider. It can, there fore, be said, that section 4 takes up the law from the point at which section 44 of the Transfer of Property Act has left it.

40.27. Section .-

Constitutional validity of.-The constitutional validity of section 4 has been upheld in a Madras case,1 where the court seems to have rejected the argument that it was "illegal discrimination" to enable the member of the family to buy out the transferee, while denying that right to the transferee.

1. Krishna Pillai v. Perukutty Ammal, AIR 1952 Mad 33 (34), para. 6 (Panchapakesa Ayyar, J.).

40.28. Section 4-Interpretation of.-

The various expressions used in section 4, such as "dwelling-house", "undivided family", and "member of such family", have come up for interpretation in several decisions of the various High Courts and the courts have placed a wide and liberal construction on these expressions, keeping in view the object underlying section 4, namely, to provide for peaceable enjoyment of the property and to secure privacy.1

For example, it has been held, that a "dwelling-house" does not cease to be so merely because of a temporary suspension of occupation or absence of the co-sharers, provided the members are likely to return to its occupation.2 Constant residence of the members is not necessary.3 The term "house" has also been liberally interpreted, so as to include the appurtenant lands or premises which are necessary for its proper occupation enjoyment.4 The word "family" has also been given a liberal interpretation.5

1. Dulal Chandra v. Gosthabehari, AIR 1953 Cal 259 (Giakravarti, C.J. and G.N. Das, J.).

2. Kalipada v. Tulsidas, AIR 1960 Cal 467.

3. Sushila v. J.B. Baral, AIR 1956 Ori 56 (Case of Christians) (reviews case law).

4. Nilkamal v. Kamakshy Charan, AIR 1928 Cal 539 (542).

5. Khirode Chandra v. Saroda Prasad, (1910) 12 Cal LJ 525: 7 IC 436 (Mookerjee, J.).

40.29. Undivided family.-

As regards the requirement connected by the word "undivided" in section 4, it has been held,1-3 that it does not mean a joint Hindu family, or even any joint family, but simply connotes that there is a family the members whereof have not divided the property.4 The emphasis is on the undivided character of the house.5 Accordingly, a Muslim widow who, though re-married long ago, continued to live with the second husband in the family house, has been held entitled to the benefit of the section.6 The fact that all other property has been partitioned, would also not take away the operation of the section, if the family is still undivided in relation to the dwelling-house.

The term "family" has also been widely construed, so as to cover cases of Hindu sisters7 or Muslim sisters8 living together.

1. Babulal v. Huila Mollah, AIR 1938 Pat 13.

2. Bai Fatima v. Gulamnabi, AIR 1936 Born 197.

3. Gangi (mt.) v. Atma Ram, AIR 1936 Lah 291.

4. Sultan Begum v. Debi Prasad, 1908 ILR 30 All 324 (FB).

5. Bobo Krishna v. Akhoy Kumar, AIR 1950 Cal 111.

6. Shafian Begum v. Mt. Kifiata, AIR 1939 All 640 (Collister, J.).

7. Krishna Filial v. Parukutty, AIR 1952 Mad 33.

8. Aley Husson v. Toorab Hussain, AIR 1958 Pat 232 (Ramaswami, C.J. and Prasad, J.).

40.30. Summary of position concerning section 4, Partition Act.-

A good summary of the effect of the various decisions regarding section 4 is contained in a Calcutta decision as follows:1

"These decisions lay down that the word "family" as used in the section ought to be given a liberal and comprehensive meaning and it includes a group of persons related in blood, who live in one house under one head or management; that is not restricted to a body of persons who can trace their descent from a common ancestor; but it is not necessary, for the members to constitute an undivided family, that they should constantly reside in the dwelling-house, nor is it necessary that they should be joint in mess;
that it is sufficient if the members of the dwelling-house which they own; that it is the ownership of the dwelling-house and not its actual occupation which brings the operation of the section into play: and that the object of the section is to prevent a transferee of a member of a family who is an outsider from forcing his way into a dwelling-house in which other members of his transferor's family have a right to live."

1. Nilkamal v. Kamakshya Charan, AIR 1928 Cal 539 (541) (M.N. Mukherji, J.).

40.31. Injunction.-

To revert to section 44 of the Transfer of Property Act, there seems to be some misconception on the question whether a person who is a stranger who purchases a share in a joint property with reference to section 44, 2nd paragraph, can be restrained by injunction from taking possession. There is a Calcutta decision1 to the effect that since the provisions of section 44 are of a negative nature, no positive right is created in favour of the members of the family and such a threat by the stranger purchaser is not in the nature of a tort.

On the other hand, it has been held by the Orissa High Court2 to the effect that the strange purchasers in such circumstances are liable to be restrained from claiming possession and even a decree for ejectment is sustainable. With great respect to the judgment of the Calcutta High Court, it appears to us that the section, by framing the provision in negative terms, does not necessarily imply that the rights of the stranger purchaser are enlarged in other respects.

Since the object of the section is to keep off strangers so far as dwelling-houses are concerned,3 it is a reasonable view to take that the injunction of the nature quoted above could be so issued provided the case is otherwise a fit one for the grant of injunction. In fact, we find another judgment of the same High Court taking a different view.4

1. Jogendra Nath v. Adhar Chandra, AIR 1951 Cal 412 (413), para. 14 (R.P. Mookerjee, J.).

2. Bhim Singh v. Ratnakar Singh, AIR 1971 Ori 198 (202), para. 23 (R.N. Misra, J.).

3. Dulal Chandra Chatterjee v. Gosthabehari Mitra, AIR 1953 Cal 259.

4. Lal Behari v. Gourhari, AIR 1958 Cal 253 (Lahiri, J.).

40.32. Recommendation to revise section 44.-

Having considered the scope of the important expressions as used in section 44 of the Act and section 4 of the Partition Act, 1893, it appears to us that it is desirable to codify in the section the important propositions laid down judicially. This is desirable in view of the practical importance of the section and in order to avoid future controversies as far as possible, as well as to make the section self-contained. It is not, of course, necessary to encumber the section with every small point that has been decided in the courts, but the following appear to be worthy of codification-

(a) meaning of the expression "undivided family" in the second paragraph,1

(b) meaning of the words "belonging to"-there is no requirement that the house must be occupied,2

(c) meaning of "house" as including grounds and structures appurtenant there to,3

(d) permissibility of remedy of injunction-express provision4 on the subject.

We recommend that the law on the above points should be codified on the basis of the position as discussed above in the relevant paragraphs.5

1. Para. 40.21, supra.

2. Para. 40.22, supra.

3. Para. 40.28, supra.

4. Para. 40.31, supra.

5. See the preceding footnotes.



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