Important Point
In stricto senso the provision of Section 4 of the Partition Act, 1893 has no application in the case.

Headnote:Partition Act, 1893—Section 4—Partition suit by transferee of share in dwelling house—Whether the dependant is entitled to purchase the 1/4th share of his sister plaintiff No. 2 after her marriage u/s 4 of the Partition Act? (No)—Case law discussed—Appeal disposed of accordingly—(Hindu Succession Act, 1956—Section 23 and Transfer of Property Act, 1882—Section 44—Right of Pre-emption of a co-owner).
       Held : The 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. Coming 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. The 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. (Paras 7, 8 & 9)
       After reviewing case law held : 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. At the 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. We are 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. We are 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. There will be no order for costs. (Paras 20, 21 & 22)

Judgment

D.P. Mohapatra, J.—Leave granted.

2. One Sailen 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. The widow by a registered deed of gift dated 23.8.1968 gifted her share to the appellants. After acquiring 1/2 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.

3. Before 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.

4. After 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. The 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.

5. The 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. The provision is quoted hereunder:

"4. 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 Cour

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2002 Supreme(SC) 666

Important PointIn stricto senso the provision of Section 4 of the Partition Act, 1893 has no application in the case.

Cases Referred (8)

Important Point
In stricto senso the provision of Section 4 of the Partition Act, 1893 has no application in the case.