SHEODHAR PRASAD SINGH Vs. KISHUN PRASAD SINGH

JUDGEMENT

(1.) THIS second appeal arises out of a partition suit between some of the descendants of one Khush Narain Singh and at least one transferee, defendant 9, who it is common ground before me, is descended from a somewhat remote ancestor of Khush Narain. Khush Narain had four sons who separated among themselves. Plaintiff- appellants are descended from Jugal Kishore Narain Singh one of the four sons of Khush Narain and defendants 1 and 2 are descended from Jagat Narain Singh another son of Khush Narain. Defendants 3, 6 and defendants 7 and 8 are descended from the other two sons of Khush Narain and defendant 9 was impleaded in the suit on the objection of the other defendants as a party who along with defendant 7 had taken a transfer of the share held by defendants 1 and 2 in the property of which partition was sought. 3. It was common ground that as a result of the partition among the four sons of Khush Narain, Jugal Kishore and Jagat Narain were assigned certain portions of the old family house to hold in common, namely, an angan and a privy. There was a passage to the south of the privy which was enclosed and in which a siraghar was put up. Defendants 1 and 2 said that this siraghar belonged to them exclusively, while plaintiffs case was that the siraghar had also been left common between plaintiffs and defendants 1 and 2. As to this, the lower Appellate Court, differing from the trial Court, has found in favour of the plaintiffs. There was also a passage running northwards from the west of the common privy of which along with the angan, the siraghar and the privy itself the plaintiffs sought partition. THIS prayer of the plaintiffs was an alternative to their allegation that after the old partition which is common ground, their allegation that there had been an amicable partition between plaintiffs and defendants 1 and 2, but this amicable partition has been negatived by the lower Courts. 4. The learned advocate for the appellants does not question the finding of fact that there was no such partition. As regards the privy, the siraghar and the passage to the west, of the privy, the lower Appellate Court has come to the conclusion that they are incapable of partition. That finding also is not challenged by the learned advocate; but what he has done is to urge that the lower Appellate Court was in error in refusing to give him relief under Section 4, Partition Act (4 of 1893). The learned Subordinate Judge has pointed out in the first place that no such application was made in the plaint, and he holds that Section 4 only applies where the plain, tiffs are the purchasers and has no application to a case like the present where admittedly there has been already a partition and only a certain portion of the family house has been kept ijmal. 5. Taking the first of these grounds, it has been repeatedly held that an application under Section 4, Partition Act, may be made at the appellate stage or at any stage before the final decree; and the learned advocate for the respondents, namely, defendants 7 and 9, does not contend that the application cannot be entertained even in second appeal,, The section provides: 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 transferees, 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 directions in that behalf. 6. The learned Subordinate Judge is definitely in error in holding that the section is inapplicable because there is no undivided family inthe present case. The authorities are consistent in interpreting the expression undivided family to mean a family which is undivided qua the dwelling house in question: Babulal Tiwari V/s. Hulla Mallah A.I.R. 1938 Pat. 13 a recent decision of this Court in which Manohar Lall J., has referred to the previous authorities. The section certainly speaks of the transferee suing for possession; but the learned advocate has argued on the authority of Satyabhama De V/s. Jatindra Mohan Deb that in partition suit each party is in the position of a plaintiff as well as defendant and that therefore even if the transferee be on the record as a defendant, and the plaintiff who has a share in the undivided property as a plaintiff, the latter is entitled to avail himself of the provisions of the section. 7. The contention is fully supported by the authority cited by the learned advocate. Mr. Kamla Sahai, who appears for the contesting respondents has argued that Section 4 has no application because the house cannot be said to belong to an undivided family. 8. But this, contention, as I have already said, is opposed to the authorities, He has also made some attempt to exclude the operation of the section by urging that what we are dealing with here is not a whole house and contains open land. There is no force in this contention either for it has been held by authority that the expression dwelling house in the section includes the land and appurtenances which are ordinarily and reasonably necessary for its enjoyment, while having regard to the principle underlying the provision, there is no reason to hold, that the section is inapplicable to portions of houses left undivided. 9. The learned advocate finally contended that the section is inapplicable, because the transferees, defendants 7 and 9, are themselves members of the family. In support of this contention he referred to several decisions where it was pointed out that the word family must be interpreted in a liberal and comprehensive sense: Latifannessa Bibi V/s. Abdul Rahaman where a Mahomedan daughter's daughter and son wore taken to be members of the family within the meaning of the section. 10. But the difficulty in Mr. Kamla Sahai's way is that the section contemplates a transferee "who is not a member of such family" after speaking of dwelling, house belonging to "an undivided family." Defendant 7 in the present case, like the plaintiffs and defendants 1 and 2, is among the descendants of Khush Narain; but the distinction made by the section is that between members of a family undivided qua the property under partition and transferees who are not members of such family. Mr. Kamla Sahai has argued that the words "such family" mean no more than the family already referred to in the section without the qualification "undivided." THIS interpretation however is opposed to the plain grammatical meaning of the section and also to the logic of the situation. One can understand why the section should not apply where one out of say three members of an "undivided family" within the meaning of the section transfers his share to one of the other two, for in such a case the third member can have no possible reason for saying that he should be a preferential purchaser. But where the transfer is to a person who is not a member of the undivided family the remaining members will have a grievance, if they are required to share the undivided house with a person brought in against their will or without their consent; and it is for this reason that the law enables them to buy the transferee out. Although therefore defendant 7 is descended from Khush Narain, I cannot accept Mr. Kamla Sahay's contention that he is a member of "such family" within the meaning of the section. As to defendant 7, he is not even descended from Khush Narain, and it is immaterial that he is descended from an ancestor of Khush Narain s; he is even less a member of "such family." 11. The result is that the contention of the appellants must be accepted. The appellants undertake to buy the share that has been transferred to defendants 7 and 9, and the case will now be remanded to the trial Court for proceeding under Section 4 in accordance with law. (For details see the case in Babulal Tiwari V/s. Hulla Mallah A.I.R. 1938 Pat. 13 already referred to.) 12. The appeal is allowed. There will be no order about costs. Leave to appeal under the letters patent is refused.