MALEK DOSUMIYA JAMIYATMIYA HEIRS OF DECD GULAMRASOOL SARFUDDIN MALEK Vs. PATHAN RASULKHAN MOHMEDKHAN HEIRS OF DECD DULHANBIBI
LAWS(GJH)-1979-10-2
HIGH COURT OF GUJARAT
Decided on October 17,1979

MALEK DOSUMIYA JAMIYATMIYA (HEIRS OF DECD.GULAMRASOOL SARFUDDIN MAL Appellant
VERSUS
PATHAN RASULKHAN MOHMEDKHAN Respondents

JUDGEMENT

M.P.THAKKAR - (1.) A very serious problem which can make an atheist turn to God in desperation and demands immediate attention has crossed our path in the course of our search for a solution to the question of law which has been referred to this Full Bench viz. whether in order to avail of the right conferred by sec. 4 of the Partition Act of 1893 it is an essential pre-condition that the claimant must be arraigned as plaintiff and not as a defendant. The problem highlighted is whether the concept of National Integrity notwithstanding and the Constitutional command of equality before law notwithstanding can the right conferred on a citizen by the very same provision of an All-India enactment be availed of only provided he is on the Indian soil at Calcutta but not if he is on the Indian soil at Bombay ? Call the meaning and content of an All-India statute depend on whether it is being interpreted in one State of India or in another ? Can the conscience of India countenance a situation where law means one thing in Bombay and just the contrary in Calcutta ? We will be utterly failing in our duty if we did not underscore the compulsion to remedy this situation which has been tolerated too long. We will therefore return to this problem when we have dealt with the question referred to us which must engage our immediate attention.
(2.) We must address ourselves right now to the question referred to us in regard to the interpretation of sec. 4 of the Partition Act which reads thus:- (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-sec. (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-sec. (2) of the last foregoing section". Two High Courts namely High Courts of Bombay and Allahabad broadly speaking hold the view that the right conferred by sec. 4 of the Partition Act to compel a stranger transferee of an interest of a member of a joint family in a dwelling house can be availed of provided and only provided he is arraigned as a plaintiff in the proceeding and sues for partition. A diametrically opposite opinion is expressed by four High Courts namely Calcutta Patna Orissa and the former High Court of Nagpur which have taken the view that such a right vis-a-vis a stranger transferee can be asserted irrespective of the fact whether he is arraigned as plaintiff or a defendant. It may be stated that the Madras High Court has cast its lot in favour of both the opposing views in the sense that a learned single Judge has in 1950 taken the view propounded by the Bombay High Court whereas another learned single Judge has subsequently in 1967 taken the opposite view though on the premise that the earlier judgment was distinguishable on facts. It is this conflict of opinion between two schools of interpretation one represented by the Allahabad and Bombay High Courts and the other represented by the Calcutta Patna Orissa and Nagpur High Courts which has given rise to the present reference. It is a matter of vital significance for this High Court in view of the fact that the Bombay view reflected in Khanderao v. Balkrishna A.I.R. 1922 Bombay 121 being the view of a Division Bench of the then High Court of Bombay prior to the reorganisation of States is binding to this High Court and it may be necessary to overrule the earlier decision if the other view prevails. 3 The Calcutta Patna and the Orissa High Courts as also the former High Court of Nagpur and the learned single Judge of the Madras High Court who has distinguished the view propounded by the same High Court in an earlier Judgment have reached the conclusion that the right conferred by sec. 4 on a member of an undivided family in respect of a dwelling house to compel a stranger transferee from another member of the family to sell his interest at a valuation made in accordance with the provisions therein can be exercised irrespective of whether the stranger transferee is arraigned as a plaintiff or a defendant principally on the basis of four reasons viz. :- (1) The object of the provision would be wholly fulfilled by adopting this view whereas it would be partly frustrated if the Bombay view is accepted. (2) The protection afforded by sec. 44 of the Transfer of Property Act to secure that a stranger did not force his way into a family dwelling house and cause the resultant disruption or hardship would be defeated by taking the Bombay view. (3) The expression to sue occurring in sec. 4 is capable of interpretation which would fulfil rather than frustrate the object underlying sec. 4 for the expression to sue signifies not only to prosecute but also to defend or to do something which the law requires for the better prosecution or defence of the case. (4) In a suit for partition every party is in the position of a plaintiff. The earliest decision which has subscribed to this point of view is that of the Calcutta High Court in Satyabhama v. Jatindra Mohan A.I.R. 1929 Calcutta 269. The matter came up before a Division Bench consisting of Suhrawardhy and Jack JJ. The Division Bench sought support from the well-known principle that a party in a partition suit whether a plaintiff or a defendant is at the same time the plaintiff as well as the defendant. The Division Bench proceeded to observe that this dual capacity of a party in a partition suit does not preclude even a defendant who claims a share into a dwelling house from being treated as plaintiff for the purposes of sec. 4 of the Partition Act The decision rendered by the Bombay High Court earlier in Khanderaos Case which was decided in 1922 was cited before the Division Bench of the Calcutta High Court but the learned Judges distinguished the said decision on two grounds which are not relevant for the purpose of the present discussion. They however did not follow the Bombay view to the contrary. In 1937 this question arose before Stone C J. in the Nagpur High Court in Laxman v. Mt. Lahana Bai A. I. R. 1937 Nagpur 4. The learned Judge apart from placing reliance on Satyabhamas Case decided by the Calcutta High Court concurred with the said view on an additional ground based on the interpretation of the expression to sue. Reliance was placed on the interpretation of the expression to sue quoted in Strouds Judicial Dictionary on the basis of Hesketh v. Lee (1866-73) 2 W.M.S Saund 94 to wit:- "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 to prosecute but also to defend or to do something which the law requires for the better prosecution or defence of the cause". It may be stated that the decision of the Bombay High Court in Khanderaos Case was not cited before Stone C. J. In 1953 the Allahabad High Court took the same view in Rukmi Sewak v. Munesari A I.R. 1953 Allahabad 332 but it is unnecessary to discuss the reasoning which appealed to the Court in view of the fact that this view has in terms been overruled by the Allahabad High Court itself subsequently in Sakhawat Ali v. Ali Husain A. I. R. 1957 Allahabad 356. In 1955 a similar question again arose before the Calcutta High Court and its earlier view of 1929 in Satyabhamas Case was re-affirmed in Haradhone Haldar v. Usha Charan A. I. R. 1955 Calcutta page 292. Reliance was mainly placed on the interpretation of the expression to sue vide Strouds Judicial Dictionary (to which a reference was made by Stone C.J. in Laxman v. Mr. Lahana Bai A. I. R. 1937 Nagpur 4) by Mookerjee J. In paragraph (11) it was observed that the wider interpretation sufficiently satisfies the plain literal test as well and the rule of strict grammatical construction does not necessarily exclude it. Khanderaos Case decided by the Bombay High Court was considered by the learned Judge but he expressed the opinion that the said view was opposed to the Calcutta view reflected in Satyabhamas Case decided in 1929 by a Division Bench of the Calcutta High Court which was not inclined to accept the Bombay view as to the limited scope of the section. The learned Judge also highlighted in paragraph (S) of the judgment the need for a broader view and emphasized that judicial opinion had definitely favoured a wider and liberal construction which was necessary. He also emphasized the object of the statutory provision namely to prevent the intrusion or introduction of a stranger into family dwelling house which was liable to be frustrated if the narrow interpretation was adopted. It was observed that a liberal construction would result in the object of the provision being fully achieved. Thus he added one more ground in support of this school of thought over and above the grounds which had already been articulated in the Nagpur case of Laxman v. Aft. Lahana Bai (supra). In 1967 this question arose before the Madras High Court before Natesan J. in Ramaswami v. Subramania A.I.R. 1967 Madras 156. The learned Judge did not agree with the Bombay view and opted for the liberal construction of the section as accepted by the Calcutta High Court. He was faced with a difficulty because the same High Court in B. Ramayya v. Venkata Subbaro A.I R 1950 Madras 214 had expressed the view which on the face of it supported the Bombay view. The learned Judge however distinguished the aforesaid judgment in B. Ramayyas Case and opted for the Calcutta and Nagpur view. He relied on the reasons already articulated namely (1) in the context of the frustration of the object (2) the interpretation of the expression to sue and (3) the reasoning in the context of the nature of the partition suit wherein even a defendant was in the position of a plaintiff. He added one more ground based on sec. 44 of the Transfer of Property Act which reads as under:- "44 Where one or two or more co-owners of immovable properly legally competent in this 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 transferors 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". He emphasized that in view of sec. 44 of the Transfer of Property Act a stranger transferee of a share of dwelling house belonging to an undivided family would not be entitled to joint possession and that unless sec 4 was interpreted so as to enable a member of the undivided family to exercise his right to compel the stranger to sell his interest the protection afforded by sec. 44 would be rendered nugatory. The Bombay decision to the contrary was discussed in paragraph (13) of the judgment and was sought to be explained on the ground that on the facts of the case the Court itself had held that it was not section 4 of the Partition Act but sec. 2 thereof which was attracted. Four years later the question came up before a Division Bench of the Orissa High Court in Alekha v. Jagabandhu A.I.R. 1971 Orissa 127. The Orissa High Court overruled its earlier view which was in line with the Bombay view reflected in Khanderaos Case and cast its lot with the Calcutta and Nagpur High Courts. Reliance was placed on grounds which had already been articulated. It is therefore not necessary to refer to the reasoning which prevailed with the Orissa High Court. Lastly we may refer to a Division Bench judgment rendered by the Patna High Court in H. N. Mukharjee v. Shyam Sunder Kuer A.I.R. R. 1973 Patna 142 which is in complete accord with the Calcutta view. Thus there is a consensus evolved by Calcutta Orissa and Patna High Courts which have established rapport with the earliest view propounded by Stone C.J. in Laxmans Case in 1937. The reasoning which has found favour with this school of interpretation by and large is as under:- (1) The object of sec. 4 would be partly defeated if sec. 4 is so construed as to confer a right only provided the stranger transferee is arraigned as a plaintiff in the suit whereas the object would be completely fulfilled if the expression to sue is interpreted in a broad liberal manner which is in accord with meaning assigned to the expression as stated in Strouds Judicial Dictionary so as to construe it as applying even to a case where one defends an action. (2) Reliance is also placed on the circumstance that protection afforded by sec. 44 of the Transfer of Property Act would be rendered nugatory unless the expression to sue occurring in sec. 4 of the Partition Act was so interpreted. (3) The peculiar nature of a partition suit wherein even a defendant is for all intents and purposes in the position of a plaintiff.
(3.) We may now turn the Bombay reasoning articulated in Khanieraos case. We can do no better than to quote the relevant portion from the judgment of Macleod C. J. and the concurring opinion of Shah J. Macleod C. J. has dealt with the question as under :- "In this case a decree was passed in a partition suit instituted by one Phulambrikar ask for partition of his one-third share of a certain house in Poona. The house is owned by the following persons in equal shares Phulambrikar who had bought one-third from Bhikaji a member of the original family of owners Balvant the 2nd defendant a member of that family and Khanderao the 3rd defendant who derives his title though Gangadhar a member of the original family. After the partition decree was passed applications were made by the 2nd defendant under sec. 4 of the Partition Act asking the execution Court to take action under that section with regard to the shares of the plaintiff and the 3rd defendant. The lower Court granted the application and an appeal against that decision was dismissed. Undoubtedly the 2nd defendant is entitled to have a valuation made of the share of the plaintiff who is a transferee from a member of the original family. But the lower Courts have also granted the application of the 2nd defendant with regard to the share of the 3rd defendant. That could only be done if the 3rd defendant could be considered as a transferee from a member of the family suing for partition". He is a transferee from a member of the family but it certainly cannot be said that he is suing for partition. (Emphasis added) It will be seen that the judgment proceeds on the hypothesis that the transferee from a member of the family cannot be said to be suing for the partition if he is not arraigned as a plaintiff. The question has not been elaborately considered in the context of the aforesaid three reasons which have weighed with the other High Courts namely the argument in the context of frustration and fulfilment of the object the argument in the context of sec. 44 of the Transfer of Property Act and the argument in the context of the peculiar nature of the partition suit. Shah J. in his concurring opinion has observed as under :- "I agree. It is clear that defendant No. 2s application under sec. 4 of the Partition Act could succeed only against the person who is a transferee from a member of an undivided family and who sues for partition. I do not desire to express any opinion as to what the effect of the application of defendant No. 2 being granted against the plaintiff under sec. 4 would be upon the suit at the stage at which the right to buy out the plaintiff is asserted by the defendant No. 2. That question does not arise at present. But I feel quite clear that sec. 4 is limited to the transferee who sues for partition. The right given to a sharer to buy out a transferee who is not a member of the family is limited to a transferee who sues for partition and cannot be extended to any defendant co-sharer who may claim his share in a partition suit. (Emphasis added) " It will be seen that Shah J. has also proceeded on the assumption that it was self-evident that the right under sec. 4 could be availed of only provided that the stranger transferee was arraigned as a plaintiff or was the person who had initiated the proceedings. None of the aforesaid three dimensions of the matter namely the frustration of the object the perspective from the standpoint of sec. 44 of the Transfer of Property Act and the peculiar nature of the partition suit was highlighted before the Court. So also the interpretation of the expression to sue occurring in sec. 4 was not considered either by Macleod C. J. or by Shah J. in view of the fact that it was not argued before the Court that the expression to sue was capable of being used in the context of defending an action as well as adverted to in Strouds Judicial Dictionary. The other proponent of the Bombay view is the Madras High Court. A learned single Judge of the Madras High Court in B. Ramayyas Case has followed the Bombay view. Though the Calcutta & Nagpur decisions were cited before him he preferred to subscribe to the Bombay view. The aforesaid three facets of the matter namely the frustration of the object the meaning of the expression to sue the nature of the partition suit were not considered by him. It may also be stated that a learned single Judge of the same High Court subsequently has opted for the Nagpur and Calcutta view as has been discussed earlier in the context of Ramaswamis Case decided by Natesan J. in 1967.;


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