qwertyuiopasdfghjklzxcvbnmqw ertyuiopasdfghjklzxcvbnmqwert yuiopasdfghjklzxcvbnmqwertyui opasdfghjklzxcvbnmqwertyuiopa TRANSFER OF A JOINT sdfghjklzxcvbnmqwertyuiopasdf HINDU PROPERTY BY A CO OWNER ghjklzxcvbnmqwertyuiopasdfghj SUBMITTED TO MR.

R. ANAND KUMAR TRIPATHI klzxcvbnmqwertyuiopasdfghjklz xcvbnmqwertyuiopasdfghjklzxcv SUBMITTED BY VISHAL KUMAR THAKUR (Reg no 09B152, Semester 6) bnmqwertyuiopasdfghjklzxcvbn mqwertyuiopasdfghjklzxcvbnmq wertyuiopasdfghjklzxcvbnmqwer tyuiopasdfghjklzxcvbnmqwertyu iopasdfghjklzxcvbnmqwertyuiop asdfghjklzxcvbnmqwertyuiopasd fghjklzxcvbnmqwertyuiopasdfgh jklzxcvbnmqwertyuiopasdfghjklz xcvbnmrtyuiopasdfghjklzxcvbn
04-Apr-12

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ABSTRACT 1
This abstract is for the project titled Transfer of a Joint Hindu Property by a Co owner. The main provision dealing with this subject is Section 4 of the Partition Act, however this said section has been a centre of a lot of controversies during interpretation, the paper tries to analyse these controversies and bring out a stable position. Every coparcener of a Joint Hindu Family is entitled to enjoyment of his share of the property and derive all the benefits from it, but what would happen when in lieu of deriving that benefit that particular member decides to sell of the that property to a stranger who is not part of that family. How would the rights of the other members of the family be affected by it and what would be the remedy available? Does the stranger would also acquire the right of partition? These are some of the questions that the author would like to examine in the present research paper. The paper tries to analyse these questions in the light of Section 4 of the Transfer of Property Act.

Author Vishal Kumar Thakur, Reg no 09B152, Semester 6, email id vishalt09@gnlu.ac.in

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INTRODUCTION
Every coparcener of a Joint Hindu Family is entitled to enjoyment of his share of the property and derive all the benefits from it, but what would happen when in lieu of deriving that benefit that particular member decides to sell of the that property to a stranger who is not part of that family. How would the rights of the other members of the family be affected by it and what would be the remedy available? Does the stranger would also acquire the right of partition? These are some of the questions that the author would like to examine in the present research paper. The question of the effects of the transfer of property by a coparcener is dealt with by two provisions one is Section 44 of the Transfer of Property Act and the other one is Section 4 of the Partition Act, while Section 44 of the Transfer of Property Act deals with the rights of the transferee its provisions are not specifically restricted to the question of transfer of a joint property thus it is the provisions of Section 4 of the Partition Act which are more relevant from the point of view of the family law as it deals with the rights of the other owners and how the right to ask for partition is affected by the transfer of a share of a property held together by a joint Hindu family. The provisions of Section 4 of the Partition Act have been the subject matter of conflicting opinions the point of controversy revolves around the following expressions The meaning of the expression dwelling house. The meaning of the expression family. The meaning of the expression member of such family.

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Whether the act is applicable even in case of female coparceners? Who would have the right to seek partition within this act?

The author proposes to examine these provisions and the controversy involving around the interpretation of these provisions in light of the 86th Report of the Law Commission of India which was constituted solely to study and recommend changes in the Sections of the Partition Act, the author would also bring out the true position by the interpretation given by the Supreme Court in its recent judgments.

SECTION 4 OF THE PARTITION ACT

Section 4 deals with the right of a member of a family to purchase the share of a stranger suing for partition, where the share is in respect of a dwelling house belonging to an undivided family.The section, so far as is material, provides that 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, being a shareholder, undertakes to buy the share of such transferee, make a valuation of the share of the transferee and direct its sale to such shareholders.2 The object of Section 4 is to prevent the disintegration of the family dwelling house by preventing to introduce stranger therein. The stranger is adequately compensated by the market value of the property purchased so that dwelling house of the family be preserved. The view that it must be strictly construed and that until and unless the stranger either sues for partition as
2

86th Report of the Law Commission of India, Page 27

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a plaintiff or asks for separate allotment as defendant (sic) be accepted then the whole object of Section 4 would be frustrated. In a suit for partition parties are interchangeable. The defendant can, at any time before the decree for partition is finally passed, ask for separate allotment. The right under Section 4 is available to the co-sharer as soon as a preliminary decree is passed. The defendant may frustrate the right of the co-sharer to buy out the share by not asking for separate allotment up to the last moment. The possibility cannot be ruled out that after the co-sharer's right of preemption under Section 4 is rejected on the ground that the defendant has not asked for separate allotment, the defendant could ask for separate allotment.3 In the case of Ghantesher Ghosh v Madan Mohan Ghosh and ors4 the following conditions were laid down for the application of Section 4 of the partition act (1) A co-owner having undivided share in the family dwelling house should effect transfer of his undivided interest therein. (2) The transferee of such undivided interest of the coowner should be an outsider or stranger to the family. (3) Such transferee must sue for partition and separate possession of the undivided share transferred to him by the co-owner concerned. (4) As against such a claim of the stranger transferee, any member of the family having undivided share in the dwelling house should put forward his claim of pre-

Siba Prosad Bhattacharyya v. Bibhuti Bhushan Bhattacharjee 1988)1CALLT204(HC) 4 AIR1997SC471

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emption by undertaking to buy out the share of such transferee. (5) While accepting such a claim for preemption by the existing co-owner of the dwelling house belonging to the undivided family, the court should make a valuation of the transferred share belonging to the stranger transferee and make the claimant co-owner pay the value of the share of the transferee so as to enable the claimant co-owner to purchase by way of pre-emption the said transferred share of the stranger transferee in the dwelling house belonging to the undivided family so that the stranger transferee can have no more claim left for partition and separate possession of his share in the dwelling house and accordingly can be effectively denied entry in any part of such family dwelling house.

INTERPRETATION OF UNDIVIDED FAMILY

THE

EXPRESSION

The word "family" as used in the Partition Act ought to be given a liberal and comprehensive meaning, and it does include a group of persons related in blood, who live in one house or under one head or management. There is nothing in the Partition Act to support the suggestion that the term "family" was intended to be used in a very narrow and restricted sense, namely, a body of persons who trace their descent from a common ancestor."5 When regard is had to Hindu social customs and manners, it is difficult to hold that the term "family" is not comprehensive enough to include such a body of persons. Indeed, in cases where there are no male children in the family and the daughters alone are entitled to the inheritance, their husbands very often live as members of the family, and they with their
5

Khirode Chandra v. Saroda Prasad 7 IC 436 (Cal.)

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wives may not inappropriately be treated as the "family" some members of which have shares in the dwelling house. 6 The word undivided as occurring in Section is not confined to a joint Hindu family, or even to any joint family but simply connotes that there is a family the members whereof have not divided their property. The emphasis is on the undivided character of the house.7 Thus it can be said that the term family embraces a collective body of persons living together in one house or within the cartilage. In legal phrase this is the generic description of a family. It embraces a household comprised of parents or children or other relative or domestic servants, in short every collective body of persons living together within the same cartilage, subsisting in common and directing their attention to a common object, the promotion of their mutual interests and social happiness. This is the most popular acceptation of the word.8

INTERPRETATION OF DWELLING HOUSE

THE

EXPRESSION

It has been held that Section 4 has been enacted for the purpose of 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.9
6

See This decision has been considered to be a leading authority on the question in issue. The same principle has been followed by different High Courts in Mohomed Sulaiman Khan v. Mt. Amir Jan AIR1941All281 ; Krishna Pillai v. Parukutty Animal : AIR1952Mad33 Alley Hasan v. Toorab Hussain AIR1958Pat232 and Paluni Dei v. Rathi Mallick AIR1965Ori111 . 7 Buto Krishna v Akhoy Kumar, AIR 1950 Cal 111 8 Salim Ullah v Bacir Ullah AIR 1948 All 142 9 Gautam v Devi Rani Paul 2000(6)ALT36(SC)

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Just as was the case while interpreting the expression undivided family the expression dwelling house has been given a wide and a liberal meaning. It has been held that a dwelling house does not cease to be so merely because of a temporary suspension of occupation or absence of the co sharers, provided the members are likely to return to its occupation. 10 Continuous residence of the member is not necessary. The term has been liberally interpreted, so as to include the appurtenant lands or premises which are necessary for its proper occupation or enjoyment. 11 The fact that all other property has been partitioned would also not take away the operation of the section, if the family is still undivided in relation to the dwelling house.12

MEANING OF THE EXPRESSION MEMBER OF SUCH FAMILY AND WHETHER THE ACT IS APPLICABLE EVEN IN CASE OF FEMALE COPARCENERS?
The next question that comes up for consideration is whether a married female coparcener would be covered under the expression member of such family. When regard is had to Hindu social customs and manners, it is difficult to hold that the term "family" is not comprehensive enough to include such a body of persons. Indeed, in cases where there are no male children in the family and the daughters alone are entitled to the inheritance, their husbands very often live as members of the family, and they with their wives may not inappropriately be treated as the "family" some members of which have shares in the dwelling house. The Supreme Court considering the provisions of Section 23 of the Act in the light of Section4(1) of Partition Act and

10 11

Sushila v J. B. Baral AIR 1956 Orissa 56 Nilkamal v Makakshy Charan AIR 1928 Cal 539 12 Krishna Pillay v Perukutty AIR 1952 Mad 33

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Section 44 of the Transfer of Property Act made the following observations13: "Attention may now be invited to the last sentence in the provision and the proviso, for there lies the clue to get to the heart of the matter. On first impression the provision may appear conflicting with the proviso but on closer examination the conflict disappears. A female heir's right to claim partition of the dwelling house does not arise until the male heirs choose to divide their respective shares therein, but till that happens the female heir is entitled to the right to reside therein. The female heir already residing in the dwelling house has a right, to its continuance but in case she is not residing, she has a right to enforce her entitlement of residence in a court of law. On first impression, it appears that when the female heir is the daughter, she is entitled to a right of residence in the dwelling house so long as she suffers from any one of the four disabilities i.e. (1) being unmarried; (2) being a descried wife; (3) being a separated wife; and (4) being a widow. It may appear that female heirs other than the daughter are entitled without any qualification to a right of residence, but the daughter only if she suffers from any of the aforementioned disabilities. If this be the interpretation, as some of the commentators on the subject have thought it to be, it would lead to a highly unjust result for a married granddaughter as a Class I heir may get the right of residence in the dwelling house, and a married daughter may not. This incongruous result could never have been postulated by the legislature. Significantly, the proviso covered the cases of all daughters, which means all kinds of daughters, by employment of the words "where such female heir is a daughter" and not "where such female heir is the daughter". The proviso thus is meant to cover all daughters, the description of which has been given in the above table by arrangement. The word 'daughter' in the proviso is meant to include daughter of a predeceased son, daughter of a
13

Narashimaha Murthy v Susheelabai AIR1996SC1826

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predeceased son of a predeceased son and daughter of a predeceased daughter. The right of residence of the female heirs specified in Class I of the Schedule, in order to be real and enforceable, presupposes that their entitlement cannot be obstructed by any act of the male heirs or rendered illusory such as in creating third party rights therein in favour of others or in tenanting it, creating statutory rights against dispossession or eviction. Therefore it can be said that the provisions of Section 4 of the Partition Act are available equally to female coparceners as well.

WHO WOULD HAVE THE RIGHT PARTITION WITHIN THIS ACT?

TO

SEEK

There was a conflict of opinion on this point between the High Courts of Bombay, Calcutta and Allahabad. 1. The view of the Bombay High Court was that Section 4 applies only where the transferee is a plaintiff claiming partition or separate possession. 2. Calcutta High Court was of the view that the transferee defendant need not even have made a claim for partition. 3. Allahabad High Court was of the view that the transferee even though he is not the plaintiff can make a claim within Section 4.

The basic conditions for applicability of Section 4 as laid down by the aforesaid decision and also as expressly mentioned in the section is that the stranger-transferee must sue for partition and separate possession of the undivided share transferred to him by the co-owner concerned. It is, of course, true that in the said decision it was observed that even though the stranger8|Page

transferee of such undivided interest moves an execution application for separating his share by metes and bounds it would be treated to be an application for suing for partition and it is not necessary that a separate suit should be filed by such stranger-transferee. All the same, however, before Section 4 of the Act can be pressed into service by any of the other coowners of the dwelling house, it has to be shown that the occasion had arisen for him to move under Section 4 of the Act because of the stranger-transferee himself moving for partition and separate possession of the share of the other co-owner which he would have purchased. The controversy was put to rest by the Supreme Court in a recent judgment where the court held that one of the conditions is that the outsider must sue for partition. Section 4 does not provide the co-sharer a right to pre-empt where the stranger/outsider does nothing after purchasing the share. In other words, Section 4 is not giving a right to a cosharer to preempt and purchase the share sold to an outsider anytime he/she wants. Thus even though a liberal interpretation may be given, the interpretation, cannot be one which gives a right which the legislatures clearly did not intend to confer. The legislature was aware that in a suit for partition the stranger/outsider, who has purchased a share, would have to be made a party. The legislature was aware that in a suit for partition the parties are interchangeable. The legislature was aware that a partition suit would result in a decree for partition and in most cases a division by metes and bounds. The legislature was aware that on an actual division, like all other co-sharers, the stranger/outsider would also get possession of, his share. Yet the legislature did not provide that the right for pre-emption could be exercised "in any suit for partition". The legislature only provided for such right when the "transferee sues for partition". The intention of the legislature is clear. There had to be initiation of proceedings or the making of a claim to partition by the stranger/outsider. 14

14

Sri Lekha Ghosh v Partha Sarthi Ghosh AIR2002SC2500

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RELATIONSHIP BETWEEN SECTION 4 OF THE PARTITION ACT AND SECTION 44 OF THE TRANSFER OF PROPERTY ACT
Section 44 of the Transfer of Property Act provides that the transferee of a share of a dwelling house, if he/she is not a member of that family, gets no right to joint possession or common enjoyment of the house. Section 44 adequately protects the family members in which an outsider can get possession are to sue for possession and claim separation of his share. In a way Section 4 supplements the second part of Section 4, Section 44 having provided that the stranger purchases is not entitled to joint possession or other common or part enjoyment, Section 4 of the Partition Act takes the next step, and enables the members of the family to buy out the outside. It can, therefore be said that section 4 takes up the law from the point at which section 44 of the Transfer of Property Act has left it. Section 4 of the Partition Act is based on the same principle that forms the justification for Section 44, Transfer of Property Act, as the two provisions are supplementary to each other; most Courts have tried to achieve this harmony with each other.15

CONCLUSION
It can be concluded that Section 4 of the Partition Act has been enacted with an aim to give a right to other co owners of a joint property to have a separate possession and to withhold any stranger from making himself the part of the undivided family. The section is an analogous provision to Section 44 of the Transfer of Property Act and should be interpreted harmoniously by the courts. This section deals with an important aspect of the family law that is partition and even allows a stranger to seek for partition once he becomes the co owner of a joint property. However it is submitted that the wordings of the Section be amended properly to bring them in conformity with the present position, as Section 4 still continues to be one of the most ambiguous provisions to interpret.
15

86th Law Commission Report, Page - 21

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CASES REFERRED
1. Siba Prosad Bhattacharyya v. Bibhuti Bhushan Bhattacharjee 1988)1CALLT204(HC) 2. Khirode Chandra v. Saroda Prasad 7 IC 436 (Cal.) 3. Buto Krishna v Akhoy Kumar, AIR 1950 Cal 111 4. Salim Ullah v Bacir Ullah AIR 1948 All 142 5. Gautam v Devi Rani Paul 2000(6)ALT36(SC) 6. Sushila v J. B. Baral AIR 1956 Orissa 56 7. Nilkamal v Makakshy Charan AIR 1928 Cal 539 8. Krishna Pillay v Perukutty AIR 1952 Mad 33 9. Narashimaha Murthy v Susheelabai AIR1996SC1826 10. Sri Lekha Ghosh v Partha Sarthi GhoshAIR2002SC2500

REPORTS REFERRED
1. 86th Law Commission Report,

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