Madhukar Pranjivan v. Jagmohan Narottam — 1985 DIGILAW 175 (CAL)

JUDGMENT T.K. Basu, J. 1. This suit is for a declaration of shares in two properties one in Mangrol in Saurashtra and the other in Calcutta being Premises No. 48, Ezra Street, Calcutta and for partition by metes and bounds of the said two properties and allotment to the co-sharers in severalty. 2. The suit was originally filed by Pranjivan Jaitha, since deceased, his wife Maneckbai and his three sons Vidyachand, Madhukar and Tilak against three (i), Narottam's descendant Jammohan and Jagmohan's sons namely Kishore Kirit, and Dinesh (ii) Ramchand's descendants i.e. five sons of Ramchand, namely Bhagwandas, Dharamdas, Amritlal, Devi Das and Hemchand and five grand sons of Ramchand, namely Tribhuban, Arun, Prabhudas, Vimal and Suresh, and (iii) Varjiban and his wife Savita who had separated from the branch of Pranjivan. 3. The case of the plaintiffs in the plaint is that one Jaitha Jaic hand was the absolute owner of the Premises No. 48, Ezra Street, Calcutta. He died intestate on or about the 19.6.1911 leaving behind him his widow, Hem Keorbai and three sons namely Ramchand, Narottam and Pranjivan each having 1/3rd share in the above premises. 4. Ramchand died intestate on or about 11.1.1918 leaving behind him his descendants mentioned above. Jaitha Jaichand's wife Hem Keorbai died in 1944. 5. Narottam died on or about 8.12.1948 leaving him surviving his only son Jagmohan Narottam. Thus, prior to 4.9.1962 the branches of the three sons of Jaitha Jaichand namely Ramchand, deceased; Narottam, deceased and Pranjivan had acquired undivided 1/3rd share each in the said properties including 48, Ezra Street, Calcutta with which only we are concerned in the present application. 6. On the 4.9.1962, a deed of Partition was executed whereby Pranjivan's son Varjivan's branch consisting of Varjivan, his wife Savita and two sons separated from Pranjivan's branch and relinquished their interest in the premises No. 48, Ezra Street, Calcutta in favour of Pranjivan and his other sons. Thus Varjivan's sons ceased to have any interest in premises No. 48, Ezra Street, Calcutta. 7. Thus prior to the 16.5.1963 the branch of Ramchand deceased, the branch of Narottam deceased and the branch, of Pranjivan minus Varjiban's sub-branch were interested in premises No. 48, Ezra Street to the extent of undivided 1/3rd share each. 8. Thus Varjivan's sons ceased to have any interest in premises No. 48, Ezra Street, Calcutta. 7. Thus prior to the 16.5.1963 the branch of Ramchand deceased, the branch of Narottam deceased and the branch, of Pranjivan minus Varjiban's sub-branch were interested in premises No. 48, Ezra Street to the extent of undivided 1/3rd share each. 8. It appears that on the 16.5.1963 Narottam's sons Jagmohan conveyed his 1/3rd share in the premises No. 48, Ezra Street, Calcutta to Smt. Savita Varjiban for Rs. 90,000/-. The conveyance was registered in Bombay but it was only in May, 1964 that the original plaintiff' came to know of this conveyance. 9. On 25.5.1964 the present suit was filed for a declaration of shares and the partition of the properties in severalty. It appears that during the pendency of this suit Savita Varjiban conveyed her 1/3rd share which she had purchased from Jagmohan Narottam to one M/s. Doon Realty for a sum of Rs. 42,000/-. 10. In the original plaint, the plaintiffs had challenged the sale by Jagmohan Narottam to Savita as being in breach of an agreement which has been pleaded in paragraph 3 of the original plaint. 11. In the written statements filed by Savita and Varjiban they have asserted that the sale dated the 16.5.1963 is valid and that Savita had validly acquired the right of 1/3rd share in 48, Ezra Street, Calcutta and demanded partition of the 1/3rd share. 12. As already indicated Savita conveyed her 1/3rd share, to M/s. Doon Realty on the 16.6.1972 for Rs. 42,000/-. Varjiban was a confirming party to the conveyance. The present petitioner before me in the application discovered this fact in July, 1972. Thereafter the original plaint was amended by an order of this Court on the 30.3.1973 whereby Doon Realty was added as a defendant. Paragraphs 15(a) and 15(b) and 18(a), 18(b), 18(c), 18(d), 18(e) and 18(f) and prayers h(i), h(ii) and h(iii) were inserted in this plaint by way of amendment. 13. In 1974 Madhukar and Tilak the two sons of Pranjivan purchased the 1/3rd share of Ramchand's branch. 14. Paragraphs 15(a) and 15(b) and 18(a), 18(b), 18(c), 18(d), 18(e) and 18(f) and prayers h(i), h(ii) and h(iii) were inserted in this plaint by way of amendment. 13. In 1974 Madhukar and Tilak the two sons of Pranjivan purchased the 1/3rd share of Ramchand's branch. 14. On or about the 9.2.1984 the present application under section 4 of the Partition Act, 1893 was made by Madhukar and Tilak the two sons of Pranjivan (who died in 1973) and Lalit and Divyaprabha, the son and daughter of Vidyachand, Pranjivan's third son who died in 1972 against the descendants of Narottam and against Savita and Varjiban who had ceased to have any interest in the property by virtue of the deed of Partition dated 4.9.1962 but who had purchased the share of Jagmohan Narottam against the M/s. Doon Realty in whose favour Savita had executed a conveyance dated the 16.6.1972 in respect of her 1/3rd share. The descendants of Ramchand have been made parties to this application but they have no interest now in the premises in view of what has been stated herein before. 15. In the present petition, the petitioner's case is that premises No. 48, Ezra Street is a dwelling house and that Ramchand's branch, Narottam's branch and Pranjivan's branch (minus Varjiban's sub-branch) were interested in the said premises to the extent of 1/3rd share each. As mentioned earlier Jagmohan Narottam, a co-sharer to the extent of undivided 1/3rd share in this dwelling house had transferred his share to Savita and Savita had sold her share to M/s. Doon Realty which was confirmed by Varjiban during the pendency of the suit. The prayer in the petition is for a direction upon Savita, Varjiban and Doon Realty to convey this 1/3rd share which Savita had conveyed to Doon Realty so that it becomes part of the joint family properties before actual partition. 16. Mr. Bhabra who appeared for the petitioners in this application submitted that the following conditions are to be satisfied before the Court can direct the sale of 1/3rd share of Jagmohan Narottam purchased by Savita and subsequently transferred to Doon Realty to the petitioners at a valuation to be fixed by this Court. (a) There should be a share in the dwelling house belonging to an undivided family. (b) Such share is transferred to a person who is not a member of such undivided family. (a) There should be a share in the dwelling house belonging to an undivided family. (b) Such share is transferred to a person who is not a member of such undivided family. (c) Such transferee sues for partition. (d) Any member of the family being a co-sharer undertakes to buy the said share of the transferee. (e) The Court shall make a valuation of the property and direct the sale of the share of the transferee to such co-sharer who undertakes to buy the share of the transferee. 17. Mr. Bhabra drew my attention to a decision of a Division Bench of this Court in the case of Satyandu Kundu vs. Amar Nath Ghosh & other, AIR 1964 Cal 52 . In that decision D.N. Sinha, J. (as his Lordship then was) after an exhaustive review of the cases under section 4(1) of the Partition Act, 1893 summarizes, in characteristic way, the legal position at paragraph 12 which runs as follows:- "The position in law may therefore be summarized as follows:- (1) The provisions contained in section 4(1) of the Partition Act have been introduced in order to maintain customary privacy and to prevent the intrusion of strengers into the dwelling house of an undivided family. (2) A liberal interpretation is to be put upon the provisions contained in section 4 of the partition Act, as would promote and fulfill its object, which is to preserve the integrity of the family dwelling house and to enable the members of the family to keep it for themselves as far as possible. (3) The expression share of dwelling house belonging to an undivided family occurring in section 4 of the Partition Act is to be construed in the same way as the expression is construed in section 44 of the Transfer of Property Act. Section 4 of the said Act carries forward the law laid down in section 44 of the Transfer of Property Act. (4) In order to attract the provisions of section 4 of the Partition Act, there should be a family who must own a dwelling house. (5) As long as there is a dwelling house which has not been divided qua the family, it might be said to be a dwelling house belonging to an undivided family for the purpose of section 4(1). (5) As long as there is a dwelling house which has not been divided qua the family, it might be said to be a dwelling house belonging to an undivided family for the purpose of section 4(1). (6) The provisions of section 4 are of general application and are not confined to a Hindu Joint Family. (7) The word family as used in section 4 was not intended to be used in a narrow and restricted sense, namely a body of persons who can trade their descent from a common ancestor. It certainly includes such persons, but it is sufficient if there is a collective body of persons living together within the same curtilage, subsisting in common, and directing their attention to a common object and to the promotion of their mutual interests and social happiness. (8) It is not necessary that all the members of such a family should continuously reside together. It is sufficient if some of them so reside, and others reside there temporarily or have not abandoned the intention of residing there altogether. (9) It does not matter if a part of the such dwelling house is let out to tenants or event the whole, provided that it can be shown that the owners have not given up their intention of residing therein. Whether they have such an intention or not is a question of fact, to be decided upon the circumstances prevailing in each case. For example, if the parties have given a permanent lease, it may be said to militate against their having an intention of resuming residence. (10) That some of the members of the family have transferred their interest to strangers will not by itself take the case out of the operation of section 4. Until the dwelling house is completely alienate to a stranger, it is still an undivided dwelling house within the meaning of section 4. (11) The fact that some of the members of the family possess other immovable properties or even dwelling houses will not necessarily take the matter out of the operation of section 4." 18. My attention was also drawn to an earlier decision of a Division Bench of this Court in the case of Dulal Ch. Chatterjee vs. Gosthabehari Mitra, AIR 1953 Cal 259 . My attention was also drawn to an earlier decision of a Division Bench of this Court in the case of Dulal Ch. Chatterjee vs. Gosthabehari Mitra, AIR 1953 Cal 259 . Chakrabarty C.J. who delivered the judgment on behalf of the Bench observed in paragraph 6 of the Report inter alia as follows:- "The generally accepted view, however, is that it is not sufficient that the house concerned should be a house for the dwelling of human beings, but it should also be a residential house in relation to the members of the undivided family owning it. It is not necessary for the purpose of this case to insist on the extreme view which can perhaps be taken on the strict language of the section, and I may proceed on the view which has been commonly accepted as to the true meaning of the word dwelling house as used in section 4(i). 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 T.P. 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 enjoyment of the property and to secure privacy. The need for making such provision cannot possible come to an end, if by reason of special circumstances the owners of the house find it necessary to let 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. 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. The creation of a tenancy dose not terminate the possibility of the owners of the house to its occupation. The tenant may voluntarily give up possession or he may be ejected. That seems to me to be important under section 4(1), Partition Act is that the house concerned should either be actually in use, though not necessarily in constant occupation, by the owners as a residential house or not conditions should be such that it is still possible for them to return to the occupation of the house at some future time. Judged by that test, it appears to me that the mere grant of a tenancy cannot possibly have the effect of making a house which is otherwise a residential house of the members of the undivided family owning it, cease to be a dwelling house. It may be that if a permanent and irrevocable lease is granted to a third party, a question may arise as to whether the character of the house as a dwelling house, in so far as the owners are concerned, still survives. No such question in my view, can possibly arise where what has been created is nothing more than a tenancy of the ordinary kind." 19. My attention was next drawn to an another Bench decision of this Court in the case of Manik Lal Singh vs. Gouri Sankur Shah, AIR 1968 Cal 245 . No such question in my view, can possibly arise where what has been created is nothing more than a tenancy of the ordinary kind." 19. My attention was next drawn to an another Bench decision of this Court in the case of Manik Lal Singh vs. Gouri Sankur Shah, AIR 1968 Cal 245 . In that case P. Chatterjee, J. who delivered the judgment of the paragraph 6 of the Report observed inter alia as follows:- "In determining whether a house is a dwelling house, we shall first find out whether the house in question was used by the members of the family for residential purpose; secondly, it would include not merely the structure where the members of the family actually reside or used to reside but it would include all appurtenants, that means, if there is a court-yard which was used by the members, such a court yard, if there was another structure, as for example, a kitchen or a cowshed or a shed for garage, if those are or where used by the members of the family as parts would also be included within the word dwelling house. Finally we have to consider the equities in partition. We have to define dwelling house with reference to partition and equities in partition are required to be considered." 20. Reliance was also placed on a judgment of a learned Single Judge of Patna High Court in the case of Sheodhar Prasad Singh & other vs. Kishan Prasad Singh & other, AIR 1941 Patna 4. In that decision Dhavle, J. observed as follows:- "Section 4 contemplates a transferee that who is not a member of such family after speaking of a dwelling house belonging to an undivided family the defendant No.7 in the present case like the plaintiffs and the defendant nos. 1 and 2 are among the descendants of Kush Narayan." 21. Mr. Hirak Mitter appearing on behalf of Savita submitted that the present application was barred by limitation. According to Mr. Mitter the right to apply under Section 4 of the Partition Act arose and when Jagmohan Narottam transferred his 1/3rd undivided share to Savita on the 16.5.1963. Alternatively it was submitted that the right to apply under section 4 of the Act arose when Savita transferred her interest in favour of M/s. Doon Realty in June, 1972. According to Mr. Mitter the right to apply under Section 4 of the Partition Act arose and when Jagmohan Narottam transferred his 1/3rd undivided share to Savita on the 16.5.1963. Alternatively it was submitted that the right to apply under section 4 of the Act arose when Savita transferred her interest in favour of M/s. Doon Realty in June, 1972. Since the present application was made in 1984 it was hopelessly barred by limitation according to Mr. Mitter. 22. Mr. Bhabra in answer to this submission of Mr. Hirak Mitter drew my attention to a decision of a Division Bench of this Court in the case of Birendra Nath Banerjee vs. Sm. Snehalata Devi, 72 CWN 128. In that decision P.N. Mookerjee, J. who spoke for the Division Bench held that the right of a co-sharer to make an application for pre-emption under section 4 of the partition Act for starting a proceeding at any stage is valid and effective. It was held that an application for pre-emption under section 4 of the Act can be made at any stage of the suit and the law of three years limitation dose not apply. It was further held that in regard to an application for preemption the right arises from day to day, while the partition suit is pending and no matter that the application has been made beyond three years of the date of the preliminary decree, it will still be in time. The right of pre-emption under the statutory provision is a right given by the statute, and on its wording it subsists so long as the suit remains pending, or in other words, so long as the suit has not been concluded or terminated by an effective final decree for partition. 23. With respect, I follow the decision of the Division Bench of this Court on the question of limitation and in that view of the matter I am of the opinion that this submission of Mr. Mitter is of no substance. 24. The other point emphasized by Mr. Hirak Mitter appearing for Savita was that the property in question is not a dwelling house, within the meaning of section 4 of the Act. Mitter is of no substance. 24. The other point emphasized by Mr. Hirak Mitter appearing for Savita was that the property in question is not a dwelling house, within the meaning of section 4 of the Act. As will appear from the decisions noticed above if a substantial portion of the premises is used for dwelling purposes then it is a dwelling house within the meaning of section 4 of the Act. The fact that a small portion of the premises is used for other purposes will not make a difference to the legal position. Further if the co-sharers do not give up the intention of dwelling there, section 4 applies. 25. Mr. Bhabra dealing with this point drew any attention to the Report of the Joint Special Officers who were directed to inspect the premises by an order of R.N. Pyne, J. dated the 23.3.1984. The material portion of the Report may be set out below:- "The joint Special Officer first visited the ground floor. On the ground floor it was found that all the rooms are in the possession of the plaintiffs save and except one room which is in the possession of M. Tilok & Co. (C & F Agents). The said room is being used by M. Tilok & Co. (C & F Agents) as a godown. On the ground floor there is one durwan's quarter and one cabin room. M. Tilok & CO. (C & F Agents) claimed that the said durwans quarter and cabin room are in the custody of the Court. The plaintiff on the contrary claimed that the said Durwans quarter and the cabin room have always been in the possession of the plaintiff and are still in their possession. There are two shop rooms on both sides of the entrance of the said suit premises. Upon enquiry it transpires that the rent of the said two shop rooms are being deposited in Rent Control. On the first floor altogether five rooms are occupied by M. Tilok & Co. (C & F Agents) who are stated to be the licensee of one Doon Realty. One Mr. Seth said to be a partner of M. Tilok & Co. (C & F Agents) stated that they are the licensees of Doon Realty. On the first floor altogether five rooms are occupied by M. Tilok & Co. (C & F Agents) who are stated to be the licensee of one Doon Realty. One Mr. Seth said to be a partner of M. Tilok & Co. (C & F Agents) stated that they are the licensees of Doon Realty. The existence of Doon Realty could not be found anywhere by the Special Officer in the said suit premises though it is stated by Mr. Seth that Doon Realty carries on business from the suit premises. On the first floor in the passage and rooms at the rear portion are in the possession of the plaintiffs. On the first floor when the Joint Special Officers visited for the first time there was no signboard of either M. Tilok & Co. (C & F Agents) or of Doon Realty. Thereafter when the Joint Special Officer came down to the first floor for the second time after a lapse of 45 minutes approximately, surprisingly it was noticed that a small signboard of Doon Realty has been put upon a door of one of the interior rooms. The second, third and fourth floors are occupied by the plaintiffs and the same are being used for dwelling purposes." 26. Having regard to the Report of the Joint Special Officer appointed by R.N. Pyne, J. I have no hesitation in holding that the premises in question is substantially used for dwelling purposes. 27. Mr. P.K. Mullik appearing on behalf of Doon Realty submitted that this application under section 4 was not maintainable. This submission was made on the basis that the suit as it originally stood was for a declaration that the transfer in favour of Savita was void and for a partition on that basis. As indicated earlier when the plaintiffs discovered after the filing of the suit that Savita has transferred her interest in favour of Doon Realty the plaint was amended by bringing in Doon Realty as a party defendant and thereafter this application was made. Mr. Mullik submitted that the plaintiffs cannot in the same breath challenge the transfer in favour of Savita and maintain this application on the footing that the transfer by Savita is contrary to Section 4 of the Act. 28. In answer to the submission of Mr. Mullik, Mr. Mr. Mullik submitted that the plaintiffs cannot in the same breath challenge the transfer in favour of Savita and maintain this application on the footing that the transfer by Savita is contrary to Section 4 of the Act. 28. In answer to the submission of Mr. Mullik, Mr. Bhabra submitted that the plaintiff always bas the right of not pressing part of its claim and I was invited to proceed on the basis that the plaintiffs are not pressing their case with regard to the invalidity of the transfer in favour of Savita. Hence this application, it was submitted by Mr. Bhabra, was maintainable. 29. In my view this submission of Mr. Bhabra is sound and should be accepted. I am of the opinion that the plaintiff can always abandon part of the claim made in a suit and on that basis maintain this application under section 4 of the Act. 30. On the merits, I hold that the premises is substantially used for dwelling purposes and the co-sharers have not given up their intention of using it as such. 31. In the result, all the objections raised on behalf of the defendants to the present application fail it follows that the plaintiffs are entitled to the reliefs prayed for in this application. 32. In the result this application succeeds. I Appoint Asoke Nain of No.1 B, Old Post Office Street, Calcutta to value the undivided 1/3rd share of premises No. 48, Ezra Street Calcutta which is the subject-matter of this application. The Valuer is directed to hear the parties before submitting his report. The report of the Valuer is to be submitted by 14.6.1985 and let this matter appear marked "To be mentioned" on the 17.6.1985. The remuneration of the Valuer is to be paid by the petitioner in the first instance. All parties to act on a signed copy of the minutes of this order.