P L D (PLP)

This appeal arises out of a suit for declaration of Title to, and joint possession in, the disputed subject‑matter, being the dwelling huts only, and the defendant is the appellant. The plaintiff's case was briefly as follows: ‑

2. The disputed huts of structures stand on the paternal homestead of the plaintiff and belonged originally to her father Aftab Ali Khandkar. Aftab Ali Khandkar died leaving behind him one son, being the principal defendant, two daughters, i.e. the plaintiff and the pro forma defendant No. 2 and one widow, who is the pro‑defendant No.

3. The plaintiff thus inherited a 3 annas 10 gandas share in her paternal properties including these in suit. It was alleged that the defendant No. 1 was trying to sell away the disputed huts and accordingly the plaintiff Instituted the present suit for the relief s already mentioned above. The suit was contested by the defendant No.

1. His main contention was that he has been in exclusive possession of the disputed huts ever since the death of his father and the plaintiff, who has been married to another family in a different locality, is not entitled to joint possession with him in the disputed structures, which are dwelling huts. Both the Courts below have concurrently affirmed her title as well as the share claimed by her on rejection of the plea of limitation and adverse possession and a decree was accordingly passed declaring her title and allowing her joint possession as prayed for. It is in these circumstances that the present second appeal has been preferred.

3. Mr. A. Matin Khan Chowdhury, Advocate, appearing on behalf of the appellant, has not challenged the finding of the learned Courts below regarding the plaintiff's title or the extent of her title. He has also conceded that the plaintiff's title has been subsisting in tact and not been barred or extinguished either by limitation or by adverse possession. The only contention urged by him is that the disputed properties being the dwelling huts in exclusive possession of his client the plaintiff, even though she is his sister, cannot in law of equity be given joint possession in view of the fact that sloe has been married away to a stranger family and bas also been residing as a member of that family elsewhere ever since her marriage. In support of this view he has referred to a number of authorities of which mention may be made of the case of Girija Kanta Chakravarty and others v. Mohim Chandra Acharjva (20 C W N 675) and the case of Bai Fatma v. Gulamnabi Hajibai and others (A I R 1936 Bom. 197). In the first mentioned case it has been held that the plaintiff, who is a stranger to the family, should not be placed in actual joint possession in the house in which the defendants reside, whatever the strict rights of the plaintiff may be, as purchaser of a 2/3ds. share of the disputed property and that where the transferee of a share of a dwelling house belonging to and undivided family is not a member of the family, nothing in section 44 of the Transfer of Property Act shall be deemed to entitle him to joint possession or other common part of the house. It was further held that the proper course to follow Is either to direct delivery of possession by partition in execution proceeding or to leave the purchaser to decide the matter by a separate suit for partition. That was of course a suit between parties, who were Hindus but nothing turns upon that in that it has been laid down in the other case cited above: ‑ "It is settled law that the expression "undivided property" occurring in section 4 is not confined to joint Hindu families nor to families of other religions which happen to have adopted Hindu notions of jointness. It also includes Mohamedans who are undivided in the sense in which the expression is used in section 4 . . . . . . A female member of an undivided family marrying and going to live in her husband's house prima facie gives up her intention of residing in the old house belonging to the family and as such she is not entitled to the benefit of section 4 with reference to the house."

4. In my opinion, the principle of law enunciated above is fully applicable to the present case where the plaintiff, married away to a stranger family in a different locality, has been living as a member of that family ever since her marriage. She must accordingly be held to be a stranger to the family of the defendant even though the defendant is her brother. It is true that the plaintiff is claiming her right not as a transferee but as one of the co‑heirs but in my opinion, can make little difference. The crux of the principle, as I understand it, is that a stranger should not be allowed joint possession in dwelling house or huts with the person or persons actually in exclusive possession of the same. In my opinion that should not be done on equitable grounds as well. Why the plaintiff single out, for the purpose of getting joint possession, the huts, in which the defendant has been residing with his family leaving out all the other valuable properties including even the very homestead on which those huts stand. The intention appears to be hardly bona fide. If her prayer were to be allowed it is bound to lead to un‑ending chaos and perpetual discord as between the parties. In the circumstances the plaintiff in my opinion, cannot and should not be granted joint possession and left to seek her relief, if so advised, in a properly framed partition suit.

5. In the result, the appeal is dismissed and the judgment and decree of the learned Courts below are upheld subject to this modification that the plaintiff's prayer for joint possession is disallowed. I make no order as to costs of this appeal. K. B. A. Appeal dismissed with certain modification.