P L D 1961 Dacca 200 (PLP)

ASIR, J.‑This appeal arises out of suit under section 4 of the Partition Act for purchase or in the alternative for partition of the suit land. As this case involves some important questions of law, it has been referred by our learned brother Nandi, J., for disposal by a larger Bench.

2. The plaintiffs' case in short is this. The suit land belonged to one Kalachand, the predecessor of the plaintiffs to the extent of 12 annas, and one Darsan, predecessor of defendant No. 6 to the extent of 4 annas. The plaintiffs and defendants No. 5 and 6 have got undivided homestead lands. Defendants Nos. 5 and 6 transferred their right, title and interest therein in favour of defendants Nos. 2 to 4 by a patter. Thereafter, the Maliki interest of defendant No. 6 was also sold to defendant No. 1, father of defend ants Nos. 2 to

4. These defendants Nos. 1 to 4 are strangers to the family of plaintiffs and defendant No.

6. The plaintiffs, therefore, claim to purchase under section ~ 4 of the Partition Act (IV of 1893), the shares as transferred to defendants Nos. 1 to 4 or in the alternative for partition.

3. Defendants Nos. 1 and 6 filed written statements. Defendant No. 6, however, did not press her contentions at the time of hearing. The defence of defendant No. 1, inter alia, was that the suit properties did not constitute an undivided dwelling house, and belonged to Darsan, predecessor of defendant No. 6, to the extent of 8 annas, and one Kalachand to the extent of 4 annas, and another Juraram to the extent of 4 annas. Moharaj, who is the successor of Juraram having not been impleaded the suit is bad for defect of parties. The plaintiffs are not also entitled to seek the aid of section 4 of the Partition Act.

4. Learned Munsif found that the plaintiffs got 12 annas share, and defendant No. 6 only 4 annas interest in the suit lands. He, however, found that the suit plots did not constitute an undivided family dwelling house, and that, as such, the plaintiffs were not entitled to purchase under section 4 of the Partition Act. The alternative prayer for partition was allowed, and the suit was accordingly decreed in the preliminary form for partition.

5. An appeal was preferred by the plaintiffs against the dismissal of their claim for purchase, and a cross‑objection was preferred by the contesting defendants disputing the finding about the shares of the parties.

6. The learned Subordinate Judge found, in agreement with the learned Munsif, that the plaintiffs have got 12 annas share, and defendant No. 6 only 4 annas interest in the suit lands. He, however, found that out of the 8 dags in suit only four dags constituted the undivided homestead and the remaining plots Nos. 8409, 8410, 8451 and 8461 were not part and parcel of the homestead lands, and in that view of the matter, the plaintiffs were found entitled to get a separate saham for 12 annas interest in the suit property, and to purchase 4 annas interest of the defendants in Dags Nos. 8356, 8406, 8407 and 8408 on a proper valuation to be made by the Court. The appeal was accordingly allowed, and the decree of the trial Court modified to that extent. The cross‑objection was dismissed. Hence the present Second Appeal by defendants Nos. 1 to 4.

7. Mr. Azizul Islam appearing for the appellants, does not dispute the concurrent finding of the Courts below that the plaintiffs got 12 annas, and defendant No. 6 only 4 annas interest in the suit lands. He, however, contends that the finding of the learned Subordinate Judge to the effect that plots Nos. 8356, 8406, 8407 and 8408 constituted an undivided homestead, was not a proper finding of reversal, and that in any event the present suit for partition having not been brought at the instance of the stranger transferees, the plaintiffs who are members of the undivided family, cannot maintain their claim for purchase under section 4 of the Partition Act. He has also contended that the suit was bad for defect of parties inasmuch as Moharaj has not been impleaded.

8. Mr. Priyanath Bhattacharjee appearing on behalf of the plaintiff‑respondents, however, contends that the question about defect of parties or of the existence of an undivided homestead is concluded by findings of fact, and that the learned Subordi nate Judge has rightly found in favour of his clients that they are entitled to purchase under section 4 of the Partition Act.

9. In view of the undisputed concurrent finding of fact that the plaintiffs got 12 annas, and defendant No. 6 only 4 annas interest in the suit lands, thus making up a total of 16 annas, there is no scope for thinking that any other co‑sharer has been left out in the present suit. The objection of the learned Advocate on the score of defect of parties is, therefore, of no substance.

10. On the question as to which plots constituted the undi vided homestead, it appears that the learned Subordinate Judge while reversing the finding of the learned Munsif, referred to the relevant C. S. Khatian and C. S. map, and also to the evidence of D. W. 2 Purna Biswas, and accepting such evidence, found that plots Nos. 8407 and 8408 formed the joint homestead and plots Nos. 8356 and 8406 are garden lands contiguous to the same. It does not appear, as contended by the learned Advocate for the appellants, that the material circumstances, and the relevant evidence in regard to this question were not considered or kept in view by the learned Subordinate Judge while arriving at the finding that plots Nos. 8396, 8406, 8407 and 8408 con stituted the joint homestead of the plaintiffs and defendant No.

6. This being a finding of fact based on evidence on record cannot be interfered in toe present Second Appeal.

11. The principal contention of the learned Advocate for the appellants is that the plaintiffs being themselves not transferees are not entitled to purchase in terms of section 4 of the Partition Act. This question requires a closer examination in view of the different decisions by the parties. Mr. Islam relies upon the decisions in 38 C W N 46 ; 12 C L J 525 ; A I R 1926 Cal. 95 and A I R 1929 All, 414 Mr. Bhatta charjee, on the other hand, relies upon the decisions in 51 C W N 639 ; 54 C W N 660 ; A I R 1929 Cal. 269; A I R 1928 Cal. 539 ; A I R 1937 Nag. 4 and A I R 1941 Pat. 4 Some other decisions in A I R 1949 Cal.245 A I R 1950 Pat. 317 ; A I R 1953 All. 332 and A I R 1955 Cal. 292 may also be usefully referred to in this connection.

12. The question as to whether a plaintiff, who is not a transferee in respect of a share of a dwelling house belonging to an undivided family, and is a member of the family and a share‑holder of the dwelling house, can claim to purchase the share of a stranger transferee was not directly raised in any of the decisions in 12 C L J 525, A I R 1926 Cal. 95 (also reported in 90 I C 121), A I R 1929 All. 414 and 38 C W N

46. In all these cases the plaintiff was not a member of the family. The defendants, who were admittedly members of the family, were, therefore, quite competent to maintain a claim for purchase of the plaintiffs' share of the dwelling house in the terms of section 4 of the Partition Act. The general rule as to the conditions to be fulfilled for purchase in terms of section 4 of the Partition Act seems to have been laid down and followed in these cases.

13. For a proper appreciation of the question involved in the case it may be useful to refer to the terms of section 4 of the Partition Act, which are as follows : "Section 4.‑(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 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 share holder, and may give all necessary and proper direction in that behalf. (2) If in any case described in subsection (1), two or more members of the family being such share‑holders severally undertake to buy such share, the Court shall follow the proce dure prescribed by subsection (2) of the last foregoing section." In the case in 12 C L J 525 Mookherjee and Carnduff, JJ., appear to have laid down the general principle to be followed in order to determine the claim for purchase of the stranger transferee's share in the undivided family dwelling house. At page 530 of the report following principle has been enunciated. "The elements which must co‑exist to attract the operation of section 4, are, first, that the dwelling house should belong to an `undivided family' ; secondly, that a share thereof should have been transferred to a person who is not a member of such family ; and, thirdly, that the transferee should sue for partition." The same principle has been followed in the case in A I R 1926 Cal. 95, Suhrawardy and Duval, JJ., while holding the same opinion have also laid down, in view of the facts of the case, that "the operation of section 4 of the Partition Act comes into play after the Court has found that the stranger purchaser is entitled to partition". In the case in A I R 1929 All. 414, Sen, J., has followed the same principle as laid down in 12 C L J

525. It was also held in that case that section 4 would apply even to house, portion of which was already separated owing to one member selling his interest in it, and that the term "undivided family" in section 4 was applicable to Hindus and Muhammedans alike. In the case reported in 38 C W N 46, Mitter and Henderson, JJ. have similarly followed the principle as adopted in 12 C L J 525, and have also held, as it was necessary for the determination of the questions involved in that case that section 4 of the Partition Act also applies to Muhammedans, and that the word "family" in the section includes not merely a body of persons who trace their descent from a common ancestor, but also a group of persons related in blood, who live in one house or under one management, and that it was not necessary to constitute an undivided family that the members thereof should constantly reside in the dwelling house Mr. Bhatta charyya does not dispute any of those general principles laid down in these four cases as relied upon by Mr. Islam. He, however, contends that it was not necessary for their Lordships upon the facts of those cases to examine the question as to whether in a suit for partition brought by a member of the family as plaintiff against a stranger transferee as defendant the right of purchase as conferred‑ upon a member of the family by section 4 of the Partition Act could be available to such plaintiff. He also submits that a proper construction of section 4 of the Partition Act is not inconsistent with the view, as taken by the lower Appellate Court that the plaintiff respondents are entitled to purchase in respect of the share transferred to the appellants. This requires consideration of the other decisions referred to above.

14. The earliest decision relied upon by Mr. Bhattacharyya is A I R 1928 Cal.

539. This has also been consid ered in the case of Latifannaessa Bibi and others v. Maulvi Abdul Rahman and others. In this case as also in 54 C W N 660, the purchaser was the plaintiff. Upon the facts of that case (A I R 1928 Cal. 539), it was found by Mukherji, J., that the defendants and their co‑sharers belonged to an undivided family, and the fact that the plaintiffs had no right to live in the house apart from their right under the purchase clearly made them strangers to the family. It was also observed that "the object of the section 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 transferee's family have a right to live." It was also held, for a proper determination of the questions involved in that case that "the term `house' embraces not merely the structure or building, but includes also adjacent buildings, curtilages, garden, courtyard, orchard, and all that is necessary for the convenient occupation of the house." This case, however, in view of its facts, does not throw much light on the precise question raised before us. The next decision as relied upon by the learned Advocate for the respondents was in A I R 1929 Cal. 269 and 49 C L J

136. In that case the plaintiffs and defendants Nos. 14 to 19 were stranger transferees. Plaintiffs' prayer for getting agricultural lands instead of a share in the dwelling house was ultimately allowed. The question that remained to be decided was as to whether defend ant No. 9 who was a member of the family, was entitled to pre empt the share of defendants Nos. 14 to 19 who were respondents, and claimed to be in possession of a ‑portion of the dwelling house and asked that portion might be allotted to them on partition. The contention of the appellant (defendant No. 9) in that case was that though the respondents did not bring a suit yet having applied for a share in the dwelling house they should be treated as having sued for partition of the dwelling house. This contention was accepted by Suhrawardy and Jack, JJ., who after a consideration of the provisions of section 44 of the Transfer of Property Act observed as follows : " Section 44, T. P. Act, excludes the right of a stranger purchaser of a share in a dwelling house to joint possession. As has been observed in Kshirode Chunder Ghosal v. Saroda Prosad Mitra. Section 4, Partition Act, is a logical sequal of or corollary to section 44, T. P. Act. The latter Act denies the right of joint possession to a stranger purchaser who is left only with the right to sue for partition. It was felt that the partition of a dwelling house specially of small dimensions would divide it into unsuitable parcels, and may in some cases introduce undesirable neighbours. The Partition Act, 1893, accordingly came to the rescue of the members of an undivided family, and gave them the right to purchase the shares obtained by strangers to the family. If effect is given to the respondents' contention the result will defeat the object of the Legislature to secure indivisibility of a dwelling house." The well known principle that a party in a partition suit, whether a plaintiff or a defendant, is at the same time a plaintiff as well as a defendant was followed in that case in holding that in view of the fact that the respondents applied for a saham in the dwelling house; it would not be stretching too much the language of the law to treat them as plaintiffs within the meaning of section 4 of the Partition Act. It appears that this view as expressed in A I R 1929 Cal. 269 has also been approved not only in later decisions of the Calcutta High Court, but also by the High Courts' of Patna, Allahabad and Nagpur. In the cases in A I R 1937 Nag. 4, A I R 1941 Pat. 4, A I R 1947 Cal. 426 [corresponding to 51 C W N 6391, A I R 1949 Cal. 245, A I R 1950 Pat. 317 and A I R 1953 All. 332, the transferees figured as defendants and yet following the principle laid down in A I R 1929 Cal. 269, the claim for pre‑emption as against such transferee defendant was allowed. A contrary view seems to have been taken in a decision in the case of Khanderao Dattataraya lVokde v. Balakerishna Vahadev Phulambrikar and others (I L R 46 Bom 341=A I R 1922 Bom. 121). This case was considered and distinguished for good reasons by Suhrawardy and Jack, JJ., in A I R 1929 Cal.

269. It has also been pointed out by Das, J., in 51, C W N 639 that the observations of the Bombay High Court in A I R 1922 Bom. 121 were in the nature of obiter dicta. After a review of the cases in I L R 46 Bom. 341, A I R 1928 Cal. 539, A I R 1929 Cal. 269, A I R 1937 Nag. 4 and A I R 1941 Pat. 4, Das, J., has held that section 4 of the Partition Act, 1893, is not confined to suits brought by a stranger purchaser as plaintiff for partition, but also applies to suit brought by a person who claims to have the benefit of the section, and alternatively claims partition. In Stroud's Judicial Dictionary, 3rd Edition, Vol. 4 at page 2912 the word "sue" has been defined as follows "To sue, e.g., by a guardian for an infant, is sufficiently significant of a defendant, for `to sue' is nothing more than `to take care of, or take upon one, the defence or tuition of the cause for the infant or on his behalf'. And these words `to sue' may be applied indifferently either to the defendant or plaintiff, or to the tenant or defendant, for the suit of one party or of the other must be followed. And the words `to sue' not only signify `prosecute', but also `to defend', or to do something which the law requires for the better prosecution or defence of the cause." In A I R 1937 Nag. 41 and 51 C W N 639, Stone, C. J. and G. N. D. Das, J., respectively, took the aid of this dictionary in order to get the precise meaning of the word "sue" as used in section 4 of the Partition Act. In 51 C W N 639 (641), Das, J., after reference to the dictionary meaning of the word "sue" observes as follows "The object of the section is to prevent intrusion of strangers into the dwelling of an undivided family. This object would be frustrated if a stranger purchaser forces himself into the dwelling house of an undivided family, drives the other co -owners to file a suit as plaintiffs, and then figuring as a is allowed to defeat the claim for pre‑emption under section 4 of the Act on a narrow and literal interpretation of the section. In a suit for partition, the parties to the suit are in the position of the counter‑claimants, and it can very well be predicted of a defendant ire a suit for partition that he is suing for partition. In my opinion, the present case is within the ambit of the section." The view seems to be quite in accord with the object of the Parti tion Act, which was enacted for the purpose of amending the law relating to partition. In the case in A I R 1950 Pat. 317, in which a question of Court‑fee was involved, the purchaser was the defendant and Reuben and Jaman, JJ., following the decision in A I R 1929 Cal. 269, observed that the section in terms applied to a suit for partition brought by a transferee, but has been extended to such a suit brought by a member of the family. The plaintiff in that case was a member of the family, and it was held that in asking for relief under section 4 of the Partition Act the plaintiff was doing no more than asking for partition, and indicating the manner in which the partition should be made. This lends support to the view that a suit in terms of section 4 of the Partition Act is in essence a suit for partition, and claim for pre‑emption as envisaged in that section does not change such essential character of the suit. In A I R 1953 All. 332, Mushtaq Ahmad, J., following the decision in A I R 1929 Cal 269, A I R 1941 Pat. 41 and 51 C W N 639 has been of the opinion that it is a sound and per fectly understandable view to hold that section 4 not only applies to a case where the transferee is the plaintiff, but also to a case where he is a defendant. The same view has also been taken by P. N. Mukherjee, J., in the decision in A I R 1955 Cal.

292. It thus appears that in the cases discussed above a question was raised as to whether a member of an undivided family can claim to purchase the share of a stranger transferee in the joint dwelling house in a suit for partition under section 4 of the Partition Act though such transferee figured as a defendant, and not as a plaintiff, and that question was answered in the affirmative. We do not also see any reason as to how a contrary view can be taken if the purpose of the section is not to be defeated. The language of section 4 does not militate against the view that the object of the Legislature being to prevent intrusion by strangers to the dwelling house of an undivided family, the terms of section 4 should be liberally construed. We, therefore, respectfully agree with the views expressed and followed in A I R 1929 Cal. 269, and affirmed in later decisions as stated above. In our opinion, the right of pre‑emption in relation to a dwelling house as envisaged and authorised in section 4 of the Partition Act is exercisable by a member of an undivided family not only when a stranger transferee figures as a plaintiff, but also as a defendant in a partition suit, and claims a saham out of the homestead.

15. The appellants in the instant case, though figuring as defendants claimed a saham in the homestead property. They being stranger transferees, can, therefore, be treated as plaintiffs for the purpose of partition in the suit out of which the present appeal has arisen. The contention of the learned Advocate for the appellants on this point also, therefore, fails.

16. In the result, this appeal cannot succeed, and must be dismissed with costs. AMIN AHMAD, C. J.‑I agree. K. B. A. Appeal dismissed.