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Allahabad High Court · body

2010 DIGILAW 909 (ALL)

SRI RAM v. RAM KISHAN

2010-03-18

SANJAY MISRA

body2010
JUDGMENT Hon’ble Sanjay Misra, J.—The plaintiff-appellant is aggrieved by the judgement and decree dated 31.7.1978 passed in Civil Appeal No. 253 of 1976 by the IInd Additional District Judge, Farrukhabad dismissing the appeal of the plaintiff and confirming the judgment and decree dated 17.9.1976 passed in O.S. No. 73 of 1974, ‘Sri Ram and another v. Ram Krishna and another’, by the Ist Additional Munsif, Kannauj. 2. Sri Dhruva Narain, learned counsel has submitted that the substantial question of law involved in this appeal is : Whether the second paragraph of Section 44 of the Transfer of Property Act is applicable to the facts of the case? 3. The plaintiff had filed a suit for cancellation of sale deed and injunction against the transferee from interfering or seeking possession over the house in question. The Trial Court as also the First Appellate Court found that transfer of one half share was made by the descendants of Bheema who were defendants No. 2 to 7 and other half share belonged to the plaintiffs No. 1 to 5 who were descendants of Narain. The Courts below found that when the descendants of Bheema had half share in the property in question they could alienate the same and the plaintiff had not been able to establish his case for cancellation of sale deed. In so far as Section 44 of the Transfer of Property Act is concerned, the recitation of the facts by both the Courts below undisputedly was that house in question was ancestral and was owned half share each by the plaintiffs and the defendants No. 2 to 7 but the fact that Smt. Inda was daughter of Bheema ancestor of the defendants No. 2 to 7 would make the defendants No. 2 to 7 belonging to another family although they inherited half portion of Bheema in the house in question. 4. Sri Dhruva Narain states that a transferee cannot be permitted to take possession of the share unless he seeks partition of the property from co-owners. He further states that even the sale deed executed for half share by the defendants No. 2 to 7 in favour of defendant No. 1 was illegal and is liable to be cancelled. 5. The facts of the case are that the plaintiffs and defendant Nos. 2 to 7 were co-owners of house situate in Vijaypuria, Mauja Kusum Khor, Pargana Kannauj, District Farrukhabad. 5. The facts of the case are that the plaintiffs and defendant Nos. 2 to 7 were co-owners of house situate in Vijaypuria, Mauja Kusum Khor, Pargana Kannauj, District Farrukhabad. The defendants No. 2 to 7 executed a sale deed dated 2.3.1973 of their share in the house in favour of defendant No. 1 namely Ram Kishun who took possession forcibly in January 1974. The plaintiffs brought the instant Suit No. 73 of 1974 for cancellation of the sale deed dated 2.3.1973 and also prayed for mandatory injunction to restrain the defendant No. 1 from taking possession of the share purchased by him. 6. On the question formulated in this Second Appeal Section 44 of the Transfer of Property Act would govern the field. Section 44 is quoted hereunder : “Transfer by one co-owner : Where one of two or more co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor’s right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred. Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house”. 7. The Section contemplates a transfer of share in immovable property. It deals with the share of a co-owner of immovable property who is legally competent to transfer his share. The transferee acquires the transferors right to joint possession or other common or part enjoyment of the property and a right to enforce partition of the share or interest so transferred at the date of transfer. The second part of Section 44 is quite clear. It dis-entitles a transferee of a share in a dwelling house belonging to an undivided family to joint possession or other common or part enjoyment of the house. It is a restriction on the rights of such a transferee to joint possession. 8. The second part of Section 44 is quite clear. It dis-entitles a transferee of a share in a dwelling house belonging to an undivided family to joint possession or other common or part enjoyment of the house. It is a restriction on the rights of such a transferee to joint possession. 8. Therefore in a suit brought under Section 44 of the Transfer of Property Act the Courts have to record findings on the questions as to whether : (a) The immovable property is owned by two or more co-owners. (b) The transferor of share is legally competent to transfer his share. (c) The right of the transferee to enforce partition and thereafter right to joint possession. (d) The transferee is a stranger to the family. 9. The Courts have also to record a finding on the questions under the second part of Section 44 and if it is a dwelling house belonging to an undivided family then such a stranger transferee is not entitled to joint possession unless it is partitioned. 10. The Supreme Court in the case of Siddheshwar Mukerjee v. Bhubneshwar Prasad Narain Singh and others, AIR 1953 SC 487 , considered a case where there was a decree for personal debt against a co-parcener and his share was sold in execution of the decree. It was held in paragraph 11 as quoted hereunder : “Civil Appeals Nos. 54 and 55 of 1951. Coming now to the money appeals, the point for consideration is a short one. The suits out of which these appeals arise were instituted by the plaintiff in the partition suit against the first party defendants for recovery of his 4 annas share of the income or profits of the properties specified in the schedules to the plaints and which were included admittedly in his purchase, on the allegation that the defendants first party appropriated the entire profits to themselves and refused to give the plaintiff his legitimate share. The High Court has held that this claim of the plaintiff must fail. All that he purchased at the execution sale was the undivided interest of the coparceners in the joint property. He did not acquire title to any defined share in the property and was not entitled to joint possession from the date of his purchase. The High Court has held that this claim of the plaintiff must fail. All that he purchased at the execution sale was the undivided interest of the coparceners in the joint property. He did not acquire title to any defined share in the property and was not entitled to joint possession from the date of his purchase. He could work out his rights only by a suit for partition and his right to possession would date from the period when a specific allotment was made in his favour. In our opinion, this is the right view to take and Mr. Daphtary, who appeared in support of the appeals, could not satisfy us that in law his client was entitled to joint possession on and from the date of his purchase. The result is that these appeals are dismissed with costs. Orders accordingly”. 11. In M.V.S. Manikayala Rao v. M. Narasimhaswami and others, AIR 1966 SC 470 , the issue decided was relating to purchase of undivided shares of co-parceners at an execution sale. It was held that the purchaser is not entitled to possession of what he has purchased. His only right is to sue for partition and ask for allotment to him of that which on partition might be found to the share of the co-parcener whose share he had purchased. The question of adverse possession of the co-parceners was decided. The majority view was given in paragraph 5 and the minority view in paragraph 18. Both the views were clearly that the purchaser of share of a co-parcener cannot claim to be put in possession of any definite piece of the family property unless a partition has been made of the entire property. Paragraphs 5 and 18 are quoted hereunder : 5. “As earlier stated the High Court held that Art. 144 applied. The application of this article seems to us to present great difficulties to some of which we like to refer. That article deals with a suit for possession of immovable property or any interest therein not otherwise specially provided for and prescribes a period of twelve years commencing from the date when the possession of the defendant becomes adverse to the, plaintiff. This article obviously contemplates a suit for possession. of property where the defendant might be in adverse possession of it as against the plaintiff. This article obviously contemplates a suit for possession. of property where the defendant might be in adverse possession of it as against the plaintiff. Now, it is well-settled that the purchaser of a copartner’s undivided interest in joint family property is not entitled to possession of what he has purchased. His only right is to sue for partition of the property and ask for allotment to him of that which on partition might be found to fall to the share of the coparcener whose share he had purchased. His right to possession “would date from the period when a specific allotment was made in his favour”: Sidheshwar Mukherjee v. Bhubneshwar Prasad Narain (1) It would, therefore, appear that Sivayya was not entitled to possession till a partition had been made. That being so, it is arguable that the defendants in the suit could never have been in adverse possession of the properties as against him as possession could be adverse against a person only when he was entitled to possession. Support for this view may be found in some of the observations in the Madras full bench case of Vyapur v. Sonamm Boi Ammani, ILR 39 Mad 811:(AIR 1916 Mad 990 (2) FB)”. 18. Before dealing with the question as to which Article of the Limitation Act applies to the present case it is necessary to examine the legal position of persons like Sivayya who purchase shares of some of the coparceners of the Hindu Joint Family. It is well settled that the purchaser does not acquire any interest in the property sold and he cannot claim to be put in possession of any definite piece of family property. The purchaser acquires only an equity to stand in the alienor’s shoes and work-out his rights by means of a partition. The equity depends upon the alienation being one for value and not upon any contractual nexus. The purchaser does not become a tenant in common with the other members of the joint family. He is not entitled to joint possession with them. The alienee’s suit for partition must be one for partition of the entire property and not for the partition of any specific item of, or interest in, the family property. Such a suit, however, will not be technically on a par with a suit for partition filed by a coparcener. He is not entitled to joint possession with them. The alienee’s suit for partition must be one for partition of the entire property and not for the partition of any specific item of, or interest in, the family property. Such a suit, however, will not be technically on a par with a suit for partition filed by a coparcener. Such a suit would not have the necessary effect of breaking up the joint ownership of the members of the family in the remaining property nor the corporate character of the family. (Mayne’s Hindu Law, eleventh edition, page 489). 12. The law on the issue was again considered by the Supreme Court in Dorab Cawasji Warden v. Coomi Sorab Warden, AIR 1990 SC 867 and it was again laid down to the same effect. Paragraphs 20 and 21 are quoted hereunder : 20. “The decision in Nil Kamal Bhattacharjya and another v. Kamak-shya Charan Bhattacharjya and another, AIR 1928 Cal. 539, related to a case of a group of persons who were not the male de-scendants of the common ancestor to whom the property in the suit originally belonged but were respectively the sons of the daughter of a grandson of the common ancestor and the sons of a daughter of a son of the said common ancestor. The learned Judge applied the principle enunciated in Sultan Begam v. Debi Prasad, (1908 ILR 30 AU 324 (FB) (supra) to this family and held that it was an undivided family since the house had not been divided by metes and bounds among themselves. The Madras High Court also followed and applied the ratio of this judgment in the decision in Sivaramayya v. Venkata Subbamma and others, AIR 1930 Madras 561. The next decision to be noted is the one reported in Bhim Singh v. Ratnkar, AIR 1971 Orissa 198. In that case the undivided family consisted of the plaintiff and the defendants 1 and 2 therein. The first defendant had alienated 1/3 of his half share in the house property in favour of defendants 7 and 10 who were the appellants before the High Court. The suit was filed for a permanent injunction restraining defendants 7 and 10 from jointly possessing the disputed house alongwith the plain- tiff and defendant 2. The first defendant had alienated 1/3 of his half share in the house property in favour of defendants 7 and 10 who were the appellants before the High Court. The suit was filed for a permanent injunction restraining defendants 7 and 10 from jointly possessing the disputed house alongwith the plain- tiff and defendant 2. The facts as found by the Courts were that by an amicable arrangement among plaintiff and defend- ants 1 and 2 they were living separately for a long time, had separated their residences and were living in different houses unconnected with each other but all situate in one homestead and that after the first defendant had alienated his separate interest as well as his separate house in favour of the alienees and in pursuance thereof the alienees were put in possession. After referring to the judgments we have quoted above and following the principles therein, Ranganath Misra, J. as he then was held (at p.201 of AIR): “If in this state of things, a member of the family transfers his share in the dwelling house to a stranger paragraph 2 of section 44 of the Transfer of Property Act comes into play and the transferee does not become entitled to joint possession or any joint enjoyment of the dwelling house although he would have the right to enforce a partition of his share. The object of the provision in section 44 is to prevent the intrusion of the strangers into the family residence which is allowed to be possessed and enjoyed by the members of the family alone in spite of the transfer of a share therein in favour of a stranger. The factual position as has been determined is that the property is still an undivided dwelling house, possession and enjoyment whereof are confined to the members of the family. The factual position as has been determined is that the property is still an undivided dwelling house, possession and enjoyment whereof are confined to the members of the family. The stranger-transferees being debarred by law from exercising right of joint possession which is one of the main incidences of co-ownership of the property should be kept out.” On the question whether the enjoyment of ascertained separate portions of the common dwelling house and the alienee taking possession made any difference the learned Judge quoted the following passage from Udayanath Sahu v. Ratnakar Bej, AIR 1967 Orissa 139, with approval (at Pp.141-142 of AIR): “If the transferee (stranger) get into possession of a share in the dwelling house, the possession becomes a joint possession and is illegal. Courts cannot countenance or foster illegal possession. The possession of the defendant-transferee in such a case becomes illegal. Plaintiff’s co-owners are entitled to get a decree for eviction or even for in- junction where the transferee threatens to get possession by force. If there had been a finding that there was severance of joint status but no partition by metes and bounds, defendant 1 was liable to be evicted from the residential houses and Bari under section 44 of the T.P. Act.” The learned Judge further held: The last contention of Mr. Pal is that the plaintiff sued for injunction only. The learned trial judge, however, has decreed ejectment of the transferee defendants and that decree has been upheld. Once it is held that the plaintiff is entitled to protection under the second part of section 44 of the Transfer of Property Act and the stranger purchasers are liable to be restrained, it would follow that even if the defendants have been put in possession or have come jointly to possess they can be kept out by injunction. The effect of that injunction would necessarily mean ejectment. In that sense and to the said extent, the decree of the trial Court upheld by the lower appellate Court must be taken to be sustainable. The remedy of the stranger purchaser is actually one of partition. Until then, he is obliged to keep out from asserting joint possession.” 21. We may respectfully state that this is a correct statement of the law. The remedy of the stranger purchaser is actually one of partition. Until then, he is obliged to keep out from asserting joint possession.” 21. We may respectfully state that this is a correct statement of the law. There could be no doubt that the ratio of the decisions rendered under section 4 of the Partition Act equally apply to the interpretation of the second paragraph of section 44 as the provisions are complementary to each other and the terms “undivided family” and “dwelling house” have the same meaning in both the sections. 13. This Court in the case of Smt. Savitri Devi v. Civil Judge (SD) Gorakhpur, 2003(51) ALR 369, held in paragraph 6 as under : “Learned counsel for the respondent has made a submission that after execution of the sale-deed the purchaser-respondent Nos. 4, 5 & 6 had been put into possession of the land sold to them. In fact, the sale-deeds have not been placed on record, but it remains an admitted fact that it was the respondent No. 3 who had merely sold the undivided 1/4th share in the property in dispute, and therefore, it is beyond imagination how the respondent Nos. 4 to 6 in pursuance of the alleged sale-deeds could be put to possession if there had been no partition prior to execution of the sale-deeds, and no partition had taken place subsequent thereto”. 14. Recently the Supreme Court in the case of Gajara Vishnu Gosavi v. Prakash Nanasahed Kumble and others, Civil Appeal No’s. 1292-1293 of 2002, decided on 16.9.2009 held as quoted under : “In Kartar Singh v. Harjinder Singh, AIR 1990 SC 854 , this Court held that where the shares are separable and a party enters into an agreement even for sale of share belonging to other co-sharer, a suit for specific performance was maintainable at least for the share of the executor of the agreement, if not for the share of other co-sharers. It was further observed: “As regards the difficulty pointed out by the High Court, namely, that the decree of specific performance cannot be granted since the property will have to be partitioned, we are of the view that this is not a legal difficulty. It was further observed: “As regards the difficulty pointed out by the High Court, namely, that the decree of specific performance cannot be granted since the property will have to be partitioned, we are of the view that this is not a legal difficulty. Whenever a share in the property is sold, the vendee has a right to apply for the partition of the property and get the share demarcated.” In recent judgment in Ramdas v. Sitabai and others, JT 2009 (8) SC 224, to which one of us (Dr. B.S. Chauhan J.) was a party placing reliance upon two earlier judgments of this Court in M.V.S. Manikayala Rao v. M. Narasimhaswami and others, AIR 1966 SC 470 ; and Sidheshwar Mukherjee v. Bhubneshwar Prasad Narain Singh and others, AIR 1953 SC 487 , this Court came to the conclusion that a purchaser of a co-parcener’s undivided interest in the joint family property is not entitled to possession of what he had purchased. He has a right only to sue for partition of the property and ask for allotment of his share in the suit property”. 15. When the stranger to the family acquired an interest in an immoveable property or dwelling house of an undivided family he has the right to seek partition. Section 4 of the Partition Act gives a right to a member of the family who has not transferred his share, to purchase the transferee’s share, when the transferee files a suit for partition. 16. These are two valuable rights of the members of the undivided family. Particularly when the right to joint possession is denied to a transferee in order to prevent a transferee who is an outsider from forcing his way into a dwelling house in which the other members of the transferor’s family had a right to live. Without there being any physical formal partition of an undivided immoveable property, a co-sharer cannot put his vendee in possession. It is settled law that the purchaser of a co-parcenor’s undivided interest in the joint family property is not entitled to possession of what he had purchased. He can only claim a right to sue for partition of the property and seek allotment of that which on partition might be found to fall to the share of the co-parcenor whose share he had purchased. 17. He can only claim a right to sue for partition of the property and seek allotment of that which on partition might be found to fall to the share of the co-parcenor whose share he had purchased. 17. It is therefore obvious that even if the sale deed whereby the undivided share has been alienated was legally permitted to be executed the transferee cannot force his way into the dwelling house of the co-owners until and unless he files for partition and obtains an order from the Court or makes a settlement with the co-owners who have not transferred their shares. 18. The First Appellate Court has unsuited the plaintiffs from their claim of the second part of Section 44 of the Transfer of Property Act and in its own words has reasoned as follows : “The next grievance of the appellants was what in view of Sect. 44 of Transfer of Property Act the vendee defendant No. 1 could not get possession over the share transferred to him and his only remedy lay in getting the house partitioned and consequently the injunction as prayed for, by the appellants should be granted even if the sale deed is valid. According to the section referred above where the transferee of a share of a dwelling house belonging to an undivided family, is not a member of family, he is not entitled to joint possession or other common or part enjoyment of the house. In the instant case however, the sons of Smt. Inda were apparently not members of one and the same family having one head. The house in question was, therefore, evidently not undivided family, so as to attract the application of the aforesaid provision of Sec. 44 of Transfer of Property Act. The arguments raised by the appellants on the basis of Section 44 of T.P. Act, therefore, also fails. 19. The above view is apparently erroneous. In the case of Dorab Cawasji Warden (Supra) the Supreme Court referred to an earlier decision with approval and observed in paragraphs 18 & 19 as under : “18. The first point that has to be considered, therefore, is whether one can have a reasonably certain view at this stage before the actual trial that the suit property is a ‘dwelling house belonging to an undivided family’ within the meaning of section 44 of the Act. The first point that has to be considered, therefore, is whether one can have a reasonably certain view at this stage before the actual trial that the suit property is a ‘dwelling house belonging to an undivided family’ within the meaning of section 44 of the Act. As to what is the meaning of these words in the section, the leading case is the one decided by the Full Bench of the Allahabad High Court in Sultan Begam and others v. Debi Prasad, [1908] ILR 30 All. That was concerned with the meaning of the phrase “dwelling house belonging to an undivided family” in section 4 of the Partnership Act, 1893. That section provides that 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 Court shall, if any member of the family, being a share-holder shall undertake to buy the share of such transferee make a valuation of such share in such manner as it thinks fit and direct the’ sale of such share to such shareholder. The argument was that the words ‘undivided family’ as used in the section mean a joint family and are confined to Hindus or to Muhammadans, who have adopted the Hindu rule as to joint family property. The counter argument was that the expression is of general application and means a family whether Hindu, Muhammadan, Christian etc. possessed of a dwelling house which has not been divided or partitioned among the members of the family. The case itself related to a Muslim family to whom the house belonged. The full Bench observed: “.........In it (section 4 of the Partition Act) we find nothing to indicate that it was intended to apply to any limited class of the community. The words ‘undivided family’ as used in this section appear to be borrowed from section 44 of the Transfer of Property Act. The last clause of that section prescribes that where the transferee of a share of a dwelling house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the dwelling house. The last clause of that section prescribes that where the transferee of a share of a dwelling house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the dwelling house. This provision of the Statute is clearly of general application, and the effect of it is to compel the transferee of a dwelling house belonging to an undivided family, who is a stranger to the family, to enforce his rights in regard to such share by partition. There appears to me to be no reason why the words ‘undivided family’ as used in section 4 of the Partition Act, should have a narrator meaning than they have in section 44 of the Transfer of Property Act. If the Legislature intended that section 4 should have limited operation, we should expect to find some indication of this in the language of the section. For example, instead of the words ‘undivided family’ the expression ‘undivided Hindu family’ or ‘joint family’ might have been used. With reference to the object and purpose of such a provision the Full Bench further observed: “as was pointed out by Mr. Wells, Judicial Commissioner, in the case of Kalka Parshad v. Bankey Lall, [1906] 9 Oudh Cases158, is to prevent a transferee of a member of a family who is an outsider from forcing his way into a dwelling house in which other members of his transferor’s family have a right to live, and that the words ‘undivided family’ must be taken to mean ‘undivided qua the dwelling house in question, and to be a family which owns the house but has not divided it’.” “19. Again in construing the word “family” and ‘undivided family’ a Division bench of the Calcutta High Court in Khirode Chandra Ghoshal and another v. Saroda Prosad Mitra, [1910] 7 IC 436, observed: The word ‘family’, as used in the Partition Act, ought to be given a liberal and comprehensive meaning, and it does include a group of persons related in blood, who live in one house or under one head or management. There is nothing in the Partition Act to support the suggestion that the term ‘family’ was intended to be used in a very narrow and restricted sense, namely, a body of persons who can trace their descent from a common ancestor.” 20. Consequently the conclusion of the First Appellate Court that the sons of Smt. Inda were not members of one and the same family having one head and hence the house in question was not undivided family so as to attract Section 44 of t he Transfer of Property Act is not only erroneous but is totally mis-interpretation of the import of the words ‘’undivided family’ as used in Section 4 of the Partition Act and in Section 44 of the Transfer of Property Act. The principle enunciated in Sultan Begum v. Devi Prasad, 1908 ILR 30 All 324 (FB), is applicable to this family since it was an undivided family because the house had not been divided by metes and bounds among themselves. 21. In so far as the submission that the undivided share cannot be alienated by a co-sharer, the law is settled. In case such a transfer violates any law or provision of a statute the transfer would be void and a nullity in law. It can be argued that a transfer of undivided share in immovable property behind the back of the other sharers and without informing them of the transfer prior to executing the sale could become a subject matter of challenge on grounds available in law. However, such is not the circumstance pleaded in this case hence it does not require any further consideration by this Court in these proceedings. 22. Consequently the substantial question of law that has arisen in this second appeal is answered in the affirmative and it is held that the second part of Section 44 of the Transfer of Property Act is applicable to the facts of this case. Both the Courts below have illegally decided the legal question and therefore the impugned judgements are liable to be set aside. 23. The judgement and decree dated 31.7.1978 passed in Civil Appeal No. 253 of 1976 by the District Judge, Farrukhabad is set aside. The suit No. 73 of 1974, Sri Ram and others v. Ram Krishna and others, is decreed for injunction against the defendant No. 1 and his LR’s who have been substituted in this appeal. 24. 23. The judgement and decree dated 31.7.1978 passed in Civil Appeal No. 253 of 1976 by the District Judge, Farrukhabad is set aside. The suit No. 73 of 1974, Sri Ram and others v. Ram Krishna and others, is decreed for injunction against the defendant No. 1 and his LR’s who have been substituted in this appeal. 24. A consequent direction is issued to the Defendants No. 1(a), 1(b) and 1(c) to handover the possession of the portion occupied by them in the house and land in suit to the plaintiffs within a period of three months failing which the plaintiff would be entitled to obtain possession by getting the decree executed forthwith without any further delay. 25. This appeal is allowed with costs. ————