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ALLAHABAD HIGH COURT
Anil Kumar, J.
Brij Raj Tripathi - Appellant
Versus
Km.Malti Devi and Another - Respondent
Second Appeal No. - 805, 806 of 1981
Decided On : 09-05-2014
PARTITION ACT - SECTION 4 - APPLICABILITY - CONDITIONS PRECEDENT - DWELLING HOUSE OF UNDIVIDED FAMILY - MEANING - TENANT IN OCCUPATION - EFFECT - PRE-EMPTION RIGHT - EXERCISE - STAGE - FAMILY - MEANING.
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 members of an undivided family, and against the defendant, who was a stranger to the family. The defendant appealed to the appellate court, which allowed the appeal and held that the plaintiffs were not entitled to the benefit of Section 4 of the Partition Act, 1893, as the house in question was not a dwelling house of an undivided family. The plaintiffs appealed to the Supreme Court.
Finding of the Court:
The Supreme Court held that the appellate court erred in holding that the house in question was not a dwelling house of an undivided family. The court held that the term "dwelling house" in Section 4 of the Partition Act should be given a liberal and comprehensive meaning, and that it includes a house where a group of persons related by blood live, even if they do not constantly reside in the house or are not joint in mess. The court also held that the mere fact that a portion of the house is let out to a tenant does not take it out of the operation of Section 4. The court further held that the plaintiffs were entitled to exercise their pre-emption right under Section 4 of the Partition Act at any stage of the litigation, and that they were not required to exercise their right before the passing of the preliminary decree.
Issues: 1. Whether the house in question was a dwelling house of an undivided family within the meaning of Section 4 of the Partition Act, 1893? 2. Whether the mere fact that a portion of the house was let out to a tenant took it out of the operation of Section 4 of the Partition Act? 3. Whether the plaintiffs were entitled to exercise their pre-emption right under Section 4 of the Partition Act at any stage of the litigation?
Ratio Decidendi: 1. The term "dwelling house" in Section 4 of the Partition Act should be given a liberal and comprehensive meaning, and that it includes a house where a group of persons related by blood live, even if they do not constantly reside in the house or are not joint in mess. 2. The mere fact that a portion of the house is let out to a tenant does not take it out of the operation of Section 4 of the Partition Act. 3. The plaintiffs were entitled to exercise their pre-emption right under Section 4 of the Partition Act at any stage of the litigation, and that they were not required to exercise their right before the passing of the preliminary decree.
Final Decision: The Supreme Court allowed the appeal, set aside the judgment of the appellate court, and restored the judgment of the trial court.
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 dismissed.
Km.
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