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ALLAHABAD HIGH COURT
Anil Kumar, J.
Pt Brij Raj Tripathi - Appellant
Versus
Malti Devi and Another - Respondent
Second Appeal No. 805 of 1981
Decided On : 09-05-2014
PARTITION ACT - SECTION 4 - APPLICABILITY - CONDITIONS PRECEDENT - DWELLING HOUSE BELONGING TO UNDIVIDED FAMILY - TRANSFER OF SHARE TO STRANGER - SUIT FOR PARTITION BY TRANSFEREE - RIGHT OF CO-SHARER TO PURCHASE SHARE OF TRANSFEREE - CONDITIONS - MEANING OF "DWELLING HOUSE" AND "UNDIVIDED FAMILY" - INTERPRETATION.
Fact of the Case:
In a suit for partition of a house, the trial court decreed the suit in favor of the plaintiffs, who were co-sharers in the house, and against the defendant, who was a stranger to the family and had purchased a share in the house. The appellate court upheld the trial court's decision. The defendant appealed to the Supreme Court.
Finding of the Court:
The Supreme Court held that the appellate court's decision was correct. The court held that the house in question was a dwelling house belonging to an undivided family, and that the defendant was a stranger to the family. The court also held that the plaintiffs had a right to purchase the defendant's share in the house under Section 4 of the Partition Act, 1893.
Issues: Whether the house in question was a dwelling house belonging to an undivided family.
Ratio Decidendi: The court held that the house in question was a dwelling house belonging to an undivided family based on the following factors: * The house was owned by two or more co-owners. * The transferor of the share was legally competent to transfer his share. * The transferee had the right to enforce partition and thereafter right to joint possession. * The transferee was a stranger to the family.
Final Decision: The Supreme Court dismissed the defendant's appeal.
Anil Kumar, J.: -
Heard Sri D.C. Mukherji , Advocate assisted by Sri Rajeiu Tripathi, learned counsel for the appellant and Mohd. Arif Khan, learned Senior counsel assisted by Sri Mohiuddin Khan for respondent and perused the record.
2. With the consent of learned counsel for the parties, Second Appeal Nos. 805 of 1981 and 806 of 1981 are being heard and decided together.
3. The facts which are relevant for the disposal of the present appeals in brief are that in the City of Bahraich, at Mohalla Barahiyapura, there is a house which originally belongs to one Ori Lal, his pedigree is a under: -
Ori Lal (Ganga Dei (wife)
Bacchu Devi(daughter) Krishna Devi ( Daughter)
Parag (Husband) (Sampat (Husband)
died issue-less Ram Dularey alias Ram Prasad
Km. Malti Devi Km. Kanti Devi
4. On 10.06.1932, Sri Ori Lal executed a Will in respect to house in dispute in favour of Smt. Bacchau Devi and Ram Dularey @ Ram Prasad, thereafter he died. On 21.3.1956, Bacchau Devi and Ram Dularey @ Ram Prasad have executed a sale-deed in respect to eastern portion house in dispute in favour of Kulbhushan and Kishana Pyari. The said persons on 22.6.1965 executed a sale deed of the eastern portion in favour of Pt. Brij Raj Tripathi.
5. On 07.08.1972 Smt. Bacchau Devi and Smt Krishna Devi executed a Will deed (registered) in favaour of Km. Malti Devi and Km. Kanti Devi in respect to western portion of the house in dispute as well as certain potion of the land which Smt. Kanti Devi had purchased by way of registered sale deed dated 21.04.1961 from Raja Saheb Nanpara.
6. On 1.12.1973, Ram Dularey @ Ram Prasad executed a sale deed in respect to half portion of the western side in favour of Pt. Brij Raj Tripathi.
7. In view of the said factual background, Km. Malti Devi and Smt. Kanti Devi filed a suit for permanent injunction registered as Regular Suit No. 437 of 1973 in the Court of Civil Judge, Bahraich with a prayer that the defendants may be restrained not to interfere in their peaceful possession of the western portion of the house.
8. On 21.04.1974, Pt. Brij Raj Pritathi filed regular Suit No. 175 of 1974 in the Court of Civil Judge, Bahraich impleading Km. Kanti Devi and Km. Malti Devi, Ram Dularay @ Ram Prasad and Dayawati for partition of the half share of the western portion of the house.
9. So far as the Regular Suit No. 437 of 1973 filed by Km. Malti Devi and Smt. Kanti Devi is concerned, the same was decreed against all the defendants except Pt Brij Raj Tripathi by means of judgment and decree dated 24.05.1980 and the suit filed by Pt Brij Raj Tripathi for partition has also been allowed by judgment and decree dated 24.05.1980.
10. Aggrieved by the judgments passed by the trial court, Km. Malti Devi and others filed a Civil Appeal No. 150 of 1980 (Km. Malti Devi and others Vs. Pt. Brij Raj Tripathi). They also filed a first appeal No. 15 of 1980 (Km. Malti Devi and others Vs. Pt. Brij Raj Tripathi and others) against the jdugment and decree dated 24.05.1980 passed in Regular Suit No. 175 of 1974.
11. In addition to two appeals, Ram Dularey @ Ram Prasad also filed a Civil Appeal No. 173 of 1980 against judgment passed by the trial court in Regular Suit No. 437 of 1973, thereafter, appellate court had consolidated all the three appeal and heard together decided by the judgment and decree dated 08.07.1981, operative portion of the same is as under: -
" The Civil Appeal No. 151 of 1980 is herewith allowed in part. All the defendants of the suit no. 437 of 1973 are permanently restrained from interfering in the possession of the plaintiff in that suit over the house in dispute.
The Civil Appeal no. 150 of 1980 is partly allowed. The appellants are given benefit of Section 4 of the Partition Act. The portion of the house purchased by Pandit Brij Raj Tripathi from Ram Dularey will be transferred to the appellants for the consideration for which it was purchased by him during the course of the execution proceedings.
The Civil Appeal no.173 of 1980 is
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