VERY IMPORTANT POINTS
1. Section 4 of the Partition Act is not giving a right to a co-sharer to pre-empt and purchase the share sold to an outsider any time he/she wants; the condition is that the outsider must sue for partition. 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.
2. In order to claim right of pre-emption under Section 4 of Partition Act dwelling-house must be belonging to an undivided family and the transferee must be not a member of the undivided family.

Headnote:Partition Act-Section 4-Pre-emption-Conditions precedent to claim-Dwelling-house must be belonging to undivided family-Transfer must be to a person who is not member of undivided family-A person who has a common ancestor but belong to different family is not a member of undivided family-Outside purchaser must sue for partition-So long as stranger/purchaser does not seek actual division and possession either in suit or in execution proceedings it cannot be said that he has sued for partition-Mere assertion of claim to share without demanding separation and possession not enough to give co-sharer a right of pre-emption.
       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". Thus 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". Thewords "such family" necessarily refers to the undivided family to whom the dwelling house belongs. In this case the undivided family is not the undivided family of Jonoranjan Paul. Admittedly the undivided family which owns the dwelling house is the undivided family of Nirode Baron Paul. It is not Appellant s case that he is a member of the undivided family of Nirode Baron Paul. (Para 21)
       In the instant case the Appellant, not being a member of the family of Nirode Baron Paul cannot be said to be a member of the undivided family to whom the dwelling house belongs. Merely because he is related by blood through a common ancestor i.e. Jonoranjan Paul does not make him a member of the family within the meaning of the term as used in Section 4. (Para 21)
       There 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 against intrusion by an outsider into the dwelling house. The only manner 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. Thus 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 any time he/she wants. Thus 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 inter-changeable. 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". The 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-sharers a right of pre-emption. There is a difference between a mere assertion that he has a share and a claiming 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. (Para 22)
       In the instant case, we have seen the written statement and the additional written statement filed by the Appellants. We have also seen the evidence given by the Appellant. At no stage has the Appellant asked for partition or demanded possession of his share. All that he has claimed, which he was bound to and entitled to, is that he has a 1/9th share in the property. Under these circumstances, the High Court was wrong in allowing the Respondents 1 and 2 to exercise a right of pre-emption under Section 4 of the Partition Act. In this case, the condition of a transferee suing for partition had not been fulfilled. However, if at any stage the Appellant applies for partition and for separation and possession of his share Respondents 1 and 2 and/or any other co-sharer will still be entitled to move under Section 4 of the Partition Act. (Paras 23 and 24)

Judgement Key Points

Yes, the Supreme Court judgment articulates the object of Section 4 of the Partition Act as safeguarding the undivided family's dwelling-house from intrusion or fragmentation by strangers, enabling co-sharers to pre-empt by purchasing the transferred share under specific conditions. (!) (!) [1000050180021]

Protection from entry and fragmentation: Section 4 seeks to protect family members' peaceful joint life in the dwelling-house from strangers who may disrupt harmony due to differing customs, while preventing disintegration of the family dwelling-house by barring stranger entry; the stranger is compensated via share valuation. (!) (!)
Mechanism via pre-emption: Available only if the transferee (non-family member) sues for partition; co-sharers may then buy the share to avoid actual division and outsider possession, complementing Section 44 of the Transfer of Property Act which bars joint possession by non-members absent partition.[1000050180021] (!) (!)
Liberal yet strict interpretation: The provision merits liberal construction but strictly requires the dwelling-house to belong to an undivided family, transfer to a non-member, and the transferee suing for partition/separate possession—mere share claim or presence in partition suit (even as defendant) does not trigger it.[1000050180020][1000050180021][1000050180022]

JUDGMENT

S.N. Variava, J.-Leave granted.

2. This Appeal is against an Order dated 11th September, 1998 passed by the High Court of Calcutta.

3. Briefly stated the facts are as follows :

One Dr. Jonoranjan Paul was the owner of premises No.14-C, Sambhu Lane, Calcutta-14. This three-storied building is hereinafter referred to as suit property. The said Dr. Jonoranjan Paul had six sons, namely, Satish, Kiron, Biren, Nilratan, Nirmal and Bimol. During his life time the said Jonoranjan Paul hadsold the suit property to one Dr. Troilukya Nath Ghosh. After the death of Dr. Troilukya Nath Ghosh the suit property went to his heirs. The heirs executed a Gift Deed dated 2nd June, 1947. By this they gifted the suit property to Nilratan Paul, Nirode Baran Paul and Birnol Chandra Paul. As stated above, Nilratan Paul and Bimol Chandra Paul were two sons of Jonoranjan Paul. Nirode Baran Paul was the son of Kiron Chandra Paul.

4. Nilratan Paul s share went to his son Bejoy Ratan Paul. On 25th February, 1957 Bejoy Ratan Paul sold his share in the property to Nirode Baran Paul. Even though Bijoy Ratan Paul sold his share to Nirode Baran Paul he continued to stay in one room in the premises. By a Deed of Partition executed on 25th June, 1957 Bimal Chandra Paul took property at 14 S.B. Lane. The suit property came to Nirode Baran Paul.

5. Nirode Baran Paul died on 7th February 1965. On his death his mother Naras Nandini Paul, his wife Debi Rani Paul and his daughter Radha Rani Paul each got a 1/3rd share in the property. The 1/3rd share of mother Naras Nandini Paul went to her sons Banwari Lal Paul, Barld Baron Paul and daughter Bibhuti Paul. They each got a 1/9th share. It is thus that Bibhuti Paul got a 1/9th share in the suit property. The 1/9th share of Banwari Lal Paul went to his son Sujit Paul and three daughters Gita, Chabi and Rubi. They each got a 1/36th share in the suit property.

6. The Appellant is the son of Bejoy Ratan Paul. As stated above, even though Bejoy had sold his share to Nirode, he continued to occupy one room in the suit property. After the death of his father Appellant continued to stay in that room. On 3rd December, 1988. Appellant purchased the 1/9th share of Bibhuti Paul in the suit property. He then also occupied the room which had earlier been occupied by Bibhuti Paul.

7. Debi Rani Paul and Radha Rani Paul ( wife and daughter of Nirode) filed Suit No. 4 of 1989 against Bibhuti Paul (Defendant No. 1) Gautam Paul (Defendant No. 2), Sujit, Gita, Chabi and Rubi (Defendants 3 to 6 respectively). The suit was for partition of the suit property. In this suit a declaration was also sought that the sale by Bibhuti Paul in favour of Gautam Pal was illegal and void and not binding on the Plaintiffs. In this suit an application was made under Section 4 of the Partition Act. The Plaintiffs sought to buy over the share of Bibhuti Paul, which had been sold to Goutam Paul.

8. On 27th August 1992 the Trial Court passed a preliminary decree for partition. It was declared that the Plaintiffs had 7/9th share in this property. It also held that Goutam Paul had 1/9th share in the property. The Trial Court kept the proceedings under Section 4 of the Partition Act pending, to be decided later on after recording evidence.

9. Being aggrieved, by their application under Section 4 of the Partition Act not having been decided, the Plaintiffs (i.e. Respondents 1 and 2 herein ) filed a First Appeal, which was ultimately numbered as 152 of 1993. This Appeal was allowed by the impugned judgement dated 11th September, 1998. By this judgment the preliminary decree for partition had been upheld. It has also been held that Respondents 1 and 2 are entitled to pre-empt under Section 4 of the Partition Act. It is held that the Appellant (herein) is not a member of the family. It is held that, as the sale is to a person who was not a member of the family, Respondent Nos. 1 and 2 were entitled to purchase over the share which had been sold to the

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2000 Supreme(SC) 1658

Cases Referred (4)