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Bhanumathi & Another v/s K. Abdurahiman Haji & Others

    OP(C). No. 942 of 2022
    Decided On, 14 September 2022
    At, High Court of Kerala
    By, THE HONOURABLE MR. JUSTICE C.S. DIAS
    For the Petitioners: K.M. Firoz, M. Shajna (K/1017/2006), Advocates. For the Respondents: M. Muhammed Shafi, Dipu James, K. Mohanakannan (K/1055/1992), Advocates.


Judgment Text
1. Aggrieved by the order passed in E.A.No.446/2022 (Ext.P13) in E.P.No.191/2019 in F.D.I.A.No1702/2017 in O.S. No.16/2016 of the Court of the Subordinate Judge, Kozhikode, the judgment debtors 1 and 2 have filed the original petition. The first respondent is the decree holder, and respondents 2 to 5 are the judgment debtors 3 to 6.

2. The relevant facts necessary for determining the original petition are: the petitioners are sisters. The first petitioner is a spinster and the second petitioner is a separated lady. They reside in the undivided family dwelling house and the appurtenant land, which is comprised in 6 cents of land described in detail in the plaint. The plaint scheduled property (in short, property) originally belonged to the mother of the petitioners and the respondents 2 to 5. They belong to the “Kannakkan” scheduled caste community. The first respondent is a real estate businessman hailing from the Muslim community. The first respondent purchased shares in the property. He then sued for partition and allotment of his share. A preliminary decree was passed dividing the property into ten equal shares. The first respondent is allotted 2/10 th shares. Then he filed F.D.I.A.No.1702/2017 to pass the final decree. Ext.P3 final decree has been passed based on Ext.P2 Advocate Commissioner report. As per the final decree, plot ‘A’ is allotted to the first respondent and plot ‘B’ is allotted to the petitioners and other sharers. However, as per the final decree, the toilet, bathroom and cattle shed, which are an integral part of the dwelling house, are unreasonably allotted to the first respondent. The allotment would affect the beneficial enjoyment of the dwelling house. The petitioners have preferred A.S.No.40/2019 (Ext.P4) before the Court of the District Judge-IV, Kozhikode, challenging Ext.P3 decree. The petitioners have also filed Ext.P5 application to stay the execution proceeding. In the meantime, the first respondent has filed E.P.No.191/2019 to execute the decree. Unfortunately, the appeal was dismissed for default. The petitioners have applied to re-admit the appeal and the first respondent has filed E.A.No.390/2022 to remove the obstructions in the pathway to the property. The first respondent attempted to demolish the bathroom and toilets. The Advocate Commissioner has filed Ext.P8 report with the plan and sketch prepared by the Surveyor. By Ext.P9 order, the court below has directed the property to be delivered to the first respondent after removing the obstructions. The petitioners have filed E.A.No.446/2022 in the execution petition under Section 4 of the Partition Act, 1893 (for brevity, referred to as ‘Act’), to permit them to purchase the share of the first respondent, who is a stranger. It is well settled that an application under Section 4 of the Act is maintainable even at the execution stage. The court below has dismissed the application by the impugned Ext.P13 order. Ext.P13 is erroneous and illegal. Hence, the original petition.

3. Heard; Sri. K.M. Firoz, the learned counsel appearing for the petitioners and Sri. K. Mohanakannan, the learned counsel appearing for the first respondent.

4. Sri. K.M. Firoz invited the attention of this Court to Section 4 of the Act and contended that unbridled powers have been conferred on the members of an undivided family to purchase the share of a dwelling house from a transferee who is not a member of such family. He argued that it is invoking the said provision that the petitioners filed Ext.P12 application. However, the court below dismissed the application on the ground that the share allotted to the first respondent does not touch the dwelling house. Even though the appeal challenging the final decree was dismissed for default, the same has been restored to file and is pending consideration. An application to stay the execution proceedings is also pending. Sri. Firoz drew the attention of this Court to the decisions of the Hon’ble Supreme Court in Ghantesher Ghosh v. Madan Mohan Ghosh and Others[(1996) 11 SCC 446], Dorab Cawasji Warden v. Coomi Sorab Warden and Others [AIR 1990 SC 867], Sharada Varma v. Dilip Gupta and Others[2000 KHC 1668] and the decision of the Calcutta High Court in Kalipada Ghosh v. Tulsidas Dutt and Others[AIR 1960 Calcutta 467], to bolster his submission that an application under Section 4 of the Act can be validly pressed into service by any of the co-owners of the dwelling house even at the stage of execution of the final decree proceedings and a dwelling house includes the adjacent buildings, gardens, courtyards, orchards and all that is necessary for the convenient occupation of the house. He placed reliance on an unreported judgment of this Court in C. Vijayalakshmi and Others v. Ammini Amma [S.A.No.971/2000], wherein this Court has held that building takes in appurtenant land. He submitted that Ext.P13 order was passed without considering any of the above legal aspects. Hence, the original may be allowed, and the impugned order may be set aside.

5. Sri. Mohanakannan felicitously countered the above submissions and argued that the property has only an extent of 6.25 cents. The first respondent has been allotted 1.25 cents. The value of the house, as per Ext.P2 commission report, is Rs.4,000/- since it is in a dilapidated state. The petitioners have not filed any objection to the commission report, pursuant to which Ext.P3 final decree was passed. The appeal against the final decree was dismissed for default. The sketches attached to Ext.P8 report reveal that the plot allotted to the first respondent does not touch the dwelling house. The oblique intention of the petitioners is to deny the first respondent from enjoying the fruits of the decree. The court below has excluded the dwelling house from the share allotted to the first respondent. Therefore, Section 4 is not attracted to the case at hand. The original petition is meritless and may be dismissed.

6. The point is whether there is any error or illegality in Ext.P13 order.

7. The first respondent had purchased 2/10th share in the property as per sale deed No.37/2005. Later, he filed the suit for partition and Ext.P1 judgment and decree were passed. The first respondent is allotted 2/10th share, the first petitioner is allotted 3/10th share, and the second petitioner and the respondents 3 to 5 are allotted 1/10th share in the property. The petitioners and the fourth respondent have equity over the dwelling house. Ext.P1 judgment and decree have become final.

8. Consequently, the first respondent filed F.D.I.A.No.1702/2017 to pass the final decree. Based on Ext.P2 commission report, Ext.P3 judgment and final decree were passed. Plot ‘A’ in Ext.C2 plan is allotted to the first respondent, and plot ‘B’ is jointly allotted to the petitioners and the respondents 2 to 5. The petitioners and the respondents 2 to 5 are directed to pay the first respondent an amount of Rs.800/- as owelty for equalising the shares.

9. The petitioners have filed Ext.P4 appeal before the Appellate Court, challenging the final decree. During the pendency of the appeal, the first respondent applied to remove the obstructions, and the commissioner filed Ext.P8 report. As there was no stay of execution proceedings, the court below proceeded with the execution and passed Ext.P9 order.

10. At the above stage, the petitioners filed Ext.P12 application, under Section 4 of the Act, to purchase the share of the first respondent, which was dismissed by the impugned Ext.P13 order.

11. Section 4 of the Partition Act reads as follows:

“4. Partition suit by transferee of share in dwellinghouse.?( 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 court shall, if any member of the family being a shareholder 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, and may give all necessary and proper directions in that behalf.

(2) If in any case described in sub-section (1) two or more members of the family being such shareholders severally undertake to buy such share, the court shall follow the procedure prescribed by sub-section (2) of the last foregoing section.”

12. Interpreting Section 4 of the Act, the Hon’ble Supreme Court in Ghantesher Ghosh(supra) has observed thus:

“10. We have also to keep in view the avowed beneficial object underlying the said provision. Section 4 of the Partition Act read with Section 44 of the T.P. Act represents a well-knit legislative scheme for insulating the domestic peace of members of undivided family occupying a common dwelling house from the encroachment of a stranger transferee of the share of one undivided co-owner as the remaining co-owners are presumed to follow similar traditions and mode of life and to be accustomed to identical likes and dislikes and identical family traditions. This legislative scheme seeks to protect them from the onslaught on their peaceful joint family life by strangeroutsider to the family who may obviously be having different outlook and mode of life including food habits and other social and religious customs. Entry of such outsider in the joint family dwelling house is likely to create unnecessary disturbances not germane to the peace and tranquillity not only of the occupants of the dwelling house but also of neighbours residing in the locality and in the near vicinity. With a view to seeing that such homogeneous life of co-owners belonging to the same joint family and residing in the joint family dwelling house is not adversely affected by the entry of a stranger to the family, this statutory right of pre-emption is made available to the co-owners who undertake to buy out such undivided share of the stranger co-owner. If such a right flowing from Section 4 of the Act is restricted in its operation only up to the final decree for partition, the very benevolent object of the section would get frustrated as up to final decree stage, the court would only crystallise the shares of the contesting co-owners but the separation and partition of the shares of respective parties get really affected on spot only by actual division by metes and bounds and delivery of possession of respective shares to respective shareholders. This can be achieved only at the stage when the execution of the final decree takes place and the litigation reaches its terminus for the contesting parties and the curtain drops on the litigation. Only then the court which passed the decree becomes finally functus officio. It is also well-settled rule of interpretation of statute that the court should lean in favour of that interpretation which fructifies the beneficial purpose for which the provision is enacted by the legislature and should not adopt an interpretation which frustrates or unnecessarily truncates it. Maxwell on The Interpretation of Statutes, Twelfth Edn., has observed in Chapter 4 pertaining to beneficial construction as under:

“The fact that a section is clearly designed to afford relief may incline the court to construe it more benevolently than it might a less obviously remedial enactment….”

Similarly, it has been observed at p. 96 as under:

“It is said to be the duty of the Judge to make such construction of a statute as shall suppress the mischief and advance the remedy. To this end, a certain extension of the letter is not unknown, even in criminal statutes.”

Consequently, on the express language of Section 4 of the Partition Act which is a benevolent provision enacted by the legislature for the welfare and tranquillity of the members of a joint family occupying the dwelling house, we must so construe the provision as to make it available at all the relevant stages of the litigation between the contesting co-owners till the litigation reaches its terminus by way of full and final discharge and satisfaction of the final decree for partition. If a stranger transferee enters the arena of contest at any stage and seeks to get his share separated as far as the subject-matter of the litigation, namely, the dwelling house, is concerned, he can be said to be suing for partition and separate possession of his undivided share to which he has become entitled because of transfer by one of the co-owners. Such a transferee might come on the scene prior to the final decree via Order 22 Rule 10 or he may come on the arena of contest seeking redressal of his right of partition and separation of his undivided share even in execution proceedings as a transferee of the decretal right of erstwhile plaintiff under the final decree either by himself filing the execution proceedings as per Order 21 Rule 16 or may subsequently step in the shoes of the decree-holder who has already filed the execution proceedings via Order 22 Rule 10 read with Order 22 Rule 12. In either eventuality, such a stranger transferee who emerges on the scene of litigation between the contesting co-owners which has not still reached its terminus and who seeks vindication of his transferee-rights in the dwelling house can certainly be said to be suing for partition even at the stage of execution of such final decree for partition.

[emphasis supplied]

11. In our view, therefore, on the express language of Section 4 of the Partition Act, the Division Bench of the High Court reached a correct conclusion in the impugned judgment.

12. Now is time for us to have a quick look at the different decisions of the High Courts on this question. Dr Ghosh, the learned Senior Counsel for the appellant, heavily relied upon some of the decisions of the Patna and the Calcutta High Courts as well as the decision of the Madras High Court in support of his contention that Section 4 cannot be applied at the stage of execution of a final decree for partition. On the other hand, the learned counsel for the respondents, relied upon the latter decisions of the Patna High Court as well as the Calcutta High Court in support of his rival contention seeking application of Section 4 of the Act even during execution proceedings and which contention, as we have seen above, meets our approval. We shall first deal with the decisions relied upon by Dr Ghosh in support of his contention. In Sheodhar Prasad Singh v. Kishun Prasad Singh [AIR 1941 Pat 4 : 190 IC 117 : 6 BR 918] , Dhavle, J. took the view that an application under Section 4 could be made in appeal against a final decree. Now it must be kept in view that the learned Judge was not directly concerned with a situation which arises in the present case. In the case before the learned Judge of the Patna High Court, the question of applicability of Section 4 of the Act fell for consideration at the stage when the final decree reached the second appellate stage before the High Court. According to the learned Single Judge, Section 4 could apply even at that stage. The learned Single Judge, therefore, had no occasion to consider the further question with which we are concerned. The view propounded by him cannot be said to have ruled out the applicability of Section 4 beyond the stage of final decree in a suit for partition. Dr Ghosh invited our attention to a decision in Birendra Nath Banerjee v. Smt Snehalata Devi [AIR 1968 Cal 380 : 72 Cal WN 128] . Even in that case the Division Bench of the High Court was concerned with the applicability of Section 4 pending appeal against the final decree for partition. The Division Bench observed therein as under:

“The right of pre-emption under Section 4 of the Partition Act 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. Therefore, an application claiming pre-emption at a time when the appeal against final partition decree is pending cannot be held barred by limitation on the ground that it has been filed beyond three years of the passing of the preliminary partition decree.”

13. The aforesaid observation makes it clear that the court was concerned with the question of limitation in connection with the application under Section 4 of the Act pending the appeal against the final decree and whether it should be treated as time-barred considering the starting point of preliminary decree. It is true that the Division Bench, in this connection, observed that the right of preemption under Section 4 subsists so long as the suit is pending or has not been concluded or terminated by the final decree for partition. But the said observation cannot be construed to have excluded the possibility of applicability of Section 4 to a post-final decree stage as such a situation had not arisen for consideration of the court. However, the decision of the Madras High Court is on the point. Strong reliance was placed by Dr Ghosh on the judgment of the Madras High Court in Abdul Sathar v. A. Nawab [AIR 1980 Mad 235 : (1980) 2 Mad LJ 287 : (1980) 93 Mad LW 305] . In that case a learned Single Judge, Ratnam, J., took the view dissenting from the decisions of the Patna and Calcutta High Courts to which we shall make a reference presently that Section 4 of the Act cannot be pressed in service after the final decree for partition is passed. In other words, in execution proceedings Section 4 of the Act cannot apply. As already discussed by us earlier Section 4 on its express language cannot be read in such a truncated fashion. Therefore, the decision of the learned Single Judge cannot be considered to be laying down good law. On the other hand are the decisions of the Patna and Calcutta High Courts to which we shall now make a reference”.

13. The Calcutta High Court in Kalipada Ghosh(supra) has observed thus:

“17. The terms “house” or “dwelling house” are ambiguous terms and for the purposes of Section 4 of the Partition Act must be liberally construed. The terms should be taken to mean not only the structure or building, but also adjacent buildings, garden, courtyard, orchard, and all that is necessary for the convenient occupation of the house. In support of the proposition, we need refer to the following, front amongst numerous decisions on the point — Kshirode Chunder v. Sharada Prosad, 12 Cal LJ 525, Pran Krishna v. Keshab Chandra, 22 Cal WN 515 : (AIR 1919 Cal 1055), Nilkamal v. Kamakshya Charan, AIR 1928 Cal 539.

18. Then, again it is not necessary for the members of the family or for one or more of them physically to occupy a house so as to make it a dwelling house. It is enough if the house or its appurtenances are used for the use or accommodation of servants, officers, or guests of the family. The case reported in Gour Chand v. Khirode Nath, AIR 1948 Cal 73 is an authority on the point”.

14. This Court in C. Vijayalakshmi (supra) has also held as follows:

“25. What now remains to be considered is the extent of property to which Section 44 applies. Strictly speaking, Section 44 applies only to the dwelling house and not to the property which is the subject matter of assignment in favour of the stranger. But, as well settled, building takes in appurtenant land also. The defendant is not entitled to joint possession and joint enjoyment of the family house of the plaintiffs till a final decree for partition is passed. It is not necessary in these proceedings to consider whether Section 4 of the Partition Act has to be applied. That question is left open to be decided at the appropriate stage.”

15. An analysis of the above provision and its interpretation, makes it is clear that, although the term ‘dwelling house’ is not defined in the Act, by way of judicial interpretation, it has been held to include adjacent buildings, gardens, courtyards, orchards etc., which are necessary for the convenient occupation of the dwelling house. Law also stands crystallised, that the pre-emptive right under Section 4 of the Act can even be invoked till the decree is fully satisfied.

16. Undisputedly, the appeal filed by the petitioners, challenging the final decree, is pending consider

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ation. 17. On a careful reading of Ext.P12 application and the findings rendered in Ext.P13 order, I find that neither have the petitioners raised all the above contentions before the court below nor has the court below considered the contentions in the above perspective. The respondents have also not filed their written objection to Ext.P12 application. It is without considering the above aspects the court below has passed the impugned order. 18. In the above legal and factual matrix, I am of the definite view that the above question needs to be reconsidered within the four corners of the statute and the authoritative precedents, after giving full opportunity to both sides which would do complete justice. 19. Thus, the impugned order is liable to be set aside and the petitioners be given an opportunity to file a fresh application under Section 4 of the Act in the appeal and the Appellate Court be directed to decide whether the petitioners and the other co-sharers ? respondents 2 to 5 ? have a right to purchase the first respondent’s share on the ground that it forms a part of the dwelling house, untrammelled by any observation made in this judgment. In light of the above findings, I hold that Ext.P13 order warrants to be interfered by this Court under Article 227 of the Constitution of India. Resultantly, the original petition is allowed in the following manner: (i) Ext.P13 order is set aside. (ii) Ext.P12 application is dismissed, reserving the right of the petitioners to file a fresh application under Section 4 of the Partition Act, 1893, in A.S.No.40/2019 within 30 days from the date of receipt of a certified copy of this judgment. (iii) If any application is filed, as stipulated above, the Appellate Court shall, after affording the respondents an opportunity to file their counter affidavit, decide such application, in accordance with law, as expeditiously as possible. (iv) Until such time a decision is taken on such application, all further proceedings in E.P.No.191/2019 in F.D.I.A. No.1702/2017 in O.S.No.16/2016 before the Court of the Subordinate Judge, Kozhikode, shall stand deferred. (v) The parties shall bear their respective costs.
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