This court held that a suit for partition by a co-heir against an outsider transferee is not maintainable if the transferee did not sue for partition and possession, as required by Section 4 of the Partition Act per Supreme Court precedents.
The impugned judgments were set aside, the appeal was allowed, and the suit was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HIGH COURT OF ORISSA: CUTTACK
S.A. No.82 of 2000
From the judgment and decree dated 14.10.99 and 21.12.99 respectively passed by Md. Abdul Majid, learned Additional District Judge, Sonepur in T.A. No.6/24 of 1994-99 reversing the judgment and decree dated 8.11.93 and 25.11.93 respectively passed by Shri S.P. Sarangi, learned Subordinate Judge, Sonepur in T.S. No.10 of 1990.
Smt. Kalyani Mahana ….….…..…… Appellant ---versus— Banshidhar Sahu and another ……..………… Respondents For Appellant : Mr. A.R. Dash, Mr. Ayushman Mahanta, Advocates For Respondents : Mr. Budhiram Das, Advocate
J U D G M E N T
P R E S E N T:
THE HON’BLE DR. JUSTICE A.K. RATH
---------------------------------------------------------------------------Date of Hearing :24.04.2018 │ Date of Judgment:04.05.2018 ---------------------------------------------------------------------------- Dr. A.K. Rath, J. Defendant no.2 is the appellant against a reversing judgment.
02. Plaintiff-respondent no.2 instituted the suit for declaration of title over the suit property, registered sale deed no.5 of 1990 executed by the defendant no.1 in favour of the defendant no.2 is illegal and in the alternative retransfer of the suit land in faovur of the plaintiff and partition. The case of the plaintiff was that
plaintiff and defendant no.1 are sons of Bhimasen Sahu. Their father had no property except the ancestral old house. On 28.5.62 the ancestral house of the family was partitioned. Defendant no.1 was allotted a share. After partition, the plaintiff and his father lived
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together. Thereafter, they had purchased the suit land jointly. They had constructed a house over the same. Defendant no.1 had not contributed any amount towards purchase of the suit land. Defendant no.1 had no semblance of right, title and interest or possession over the same. After death of his father, the plaintiff became the absolute owner of the property. In January, 1990, the defendant no.2 laid a claim over the suit property on the pretext that she had purchased the suit property from defendant no.1 by means of a registered sale deed. Thereafter the plaintiff ascertained that the defendant no.1 had sold the suit house to defendant no.2 by means of a registered sale deed. The defendant no.1 had no title over the property. The sale without his consent is void. Further, the plaintiff being a co-sharer had a preferential right to purchase the suit house. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra.
03. Defendant no.2 entered contest and filed a written statement pleading inter alia that the plaintiff and defendant no.1 were in joint mess and property. The defendant no.1 and his father purchased the suit land, converted it to homestead and constructed a house. All of them were in possession of the same. There was no partition between the plaintiff, defendant no.1 and their father on 28.5.62. It was further pleaded that after death of the father of the plaintiff and defendant no.1, there was partition between them in respect of the suit land on 2.12.86 in presence of the local gentries. The suit land fell to the share of defendant no.1. Thereafter, the defendant no.1 sold the suit land to defendant no.2 on 3.1.90 for a consideration Rs.4,000/- and delivered possession. Defendant no.2 is in possession of the suit land. Defendant no.1 was set exparte.
04. On the interse pleadings of the parties, learned trial court struck five issues. Parties led evidence, oral and documentary,
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to substantiate their cases. Learned trial court held that there was partition between Bhimasen and his two sons, plaintiff and defendant no.1, in the year 1962. The suit land was purchased by Bhimasen by means of a registered sale deed dated 27.4.1967, Ext.1. The same cannot be treated to be the exclusive property of the plaintiff alone. There is no evidence that after partition in the year 1962, the plaintiff and his father had purchased the suit land out of their joint income. The suit land was mutated in the name of Bhimasen in the year 1970. The patta was issued in his favour. The plaintiff is entitled to relief of partition. The defendant no.1 sold a portion of suit homestead which is less than his share. The sale of the suit land by defendant no.1 in favour of defendant no.2 is legal and valid. Held so, it decreed the suit preliminarily. Felt aggrieved, the plaintiff filed T.A. No.6/24 of 1994-99 before the learned Additional District Judge, Sonepur. Learned lower appellate court held that the suit land was the self-acquired property of Bhimasen. After his death his two sons, plaintiff and defendant no.1 succeeded to the suit land as tenants in common. There was no partition between the brothers on 2.12.86 and the suit property never fell to the share of defendant no.1. Plaintiff being a class-I heir can challenge the alienation. The defendant no.1 had transferred his interest in contravention of Sec.22 of Hindu Succession Act. The plaintiff being a co-sharer has preferential claim. The defendant no.1 could not have sold the suit land without the consent of the plaintiff. Defendant no.2 is a stranger to the family. She is liable to be evicted. Held so, it modified the decree and evicted the defendant no.2 from the suit land and directed the defendants to execute the sale deed in respect of half share of the defendant no.1 in favour of the plaintiff.
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05. The second appeal was admitted on the substantial questions of law enumerated in ground nos.2(b) and (c) of the appeal memo. The same are:
“2(b) Whether the respondent in the lower appellate court if has not filed any regular cross-objection could no longer raise contentions against the findings of the trial court in respect of any of the issues in the suit, at the time of hearing of the appeal ?
(c) Whether in a case of completed sale in favour of an outsider (defendant no.2) by the Class-I heir in the absence of severance of status by partition and especially when the inconvenient effects sometimes resulting from transfer to an outsider by a co-heir of his or her interest in property simultaneously inheriting along with other coheirs is conspicuously absent as evident from the evidence in the suit, the lower appellate court is justified in law in holding that the transfer is voidable at the instance of the non-alienating co-heirs u/s.22 of the Hindu Succession Act, 1956 ?”
06. Heard Mr. A.R. Dash, learned Advocate along with Mr. Ayushman Mahanta, learned Advocate for the appellant and Mr. Budhiram Das, learned Advocate, on behalf of Mr.N.C. Pati, learned Advocate for the respondents.
07. Mr. A.R. Dash, learned Advocate for the appellant, submitted that the courts below failed to consider the import of Sec.4 of the Partition Act. He further contended that there was partition of the suit house between the plaintiff and defendant no.1. The suit property fell to the share of defendant no.1. He alienated the same in favour of the defendant no.2 by means of a registered sale deed for a valid consideration. The defendant no.2 is in possession of the same.
08. Per contra, Mr. Budhiram Das, learned Advocate for the respondents, submitted that there was no partition of the suit property between the plaintiff and defendant no.1. Defendant no.1 transferred his undivided interest in favour of defendant no.2. The
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alienation is illegal. Learned lower appellate court has rightly allowed the appeal.
09. The suit is essentially a suit for declaration that the sale deed is void and partition. There is no prayer for eviction of defendant no.2. The question does arise as to whether the suit at the behest of the co-sharer is maintainable.
09. In Alekha Mantri vs. Jagabandhu Mantri and others , AIR 1971 Ori.-127, this Court held that Sec.4 of the Partition Act would also be applicable where the suit for partition was brought by a member of the undivided family against the stranger transferee and it is not necessary that the latter should have filed the suit.
10. There were divergent views of different High Courts including this Court in the case of Alekha Mantri (supra) with regard to scope and ambit of Sec. 4 of the Partition Act. The same has been set at rest by the apex Court in the case of Ghantesher Ghosh v. Madan Mohan Ghosh and others , AIR 1997 SC 471. The apex Court held thus:
“A mere look at the aforesaid provision shows that for its applicability at any stage of the proceedings between the contesting parties, the following conditions must be satisfied:
(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 concerned co-owner;
(4) As against such a claim of the stranger transferee, any member of the family having undivided share in the
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dwelling house should put forward his claim of preemption by undertaking to buy out the share of such transferee; and
(5) While accepting such a claim for pre-emption 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”.
11. In Babulal v Habibnoor Khan (Dead) by L.Rs. and others , AIR 2000 SC 2684, the apex Court taking a cue from Ghantesher Ghosh (supra) held that one of the basic conditions for applicability of Sec. 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. Before Sec. 4 of the Partition Act can be pressed in service by any of the other co-owners of the dwelling house, it has to be shown that the occasion had arisen for him to move under Sec.4 of the Act because of the stranger transferee himself moving for partition and separate possession of the share of the other coowner which he would have purchased. It was further held that if the ratio of Alekha Mantri (supra) is held to take the view that a stranger purchaser who does not move for partition of joint property against the remaining co-owners either as a plaintiff or even as a defendant in the partition suit claiming to be as good as the plaintiff nor even as a successor of the decree holder seeks execution of
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partition decree, can still be subjected to Sec.4 of the Partition Act proceedings, then the said view would directly conflict with the decision of this Court in Ghantesher Ghosh’s case (supra) and to that extent it must be treated to be overruled.
12. In view of the authoritative pronouncement of the apex Court in the decisions cited supra, the irresistible conclusion is that the suit is not maintainable. The substantial questions of law are answered accordingly.
13. A priori, the impugned judgments are set aside. The appeal is allowed. Consequently, the suit is dismissed.
Dr. A.K. Rath,J.
Orissa High Court, Cuttack
The 4th May, 2018/Basanta
2 issues framed by the court
Whether the suit for declaration of title and partition by a co-sharer is maintainable against a stranger transferee who did not sue for partition?
Whether Section 4 of the Partition Act applies when the outsider transferee has not filed a suit for partition and separate possession?
Colour shows how this judgement treated each authority
Alekha Mantri vs. Jagabandhu Mantri and othersDoubted¶27
AIR 1971 Ori.-127 · Who else cites this
Ghantesher Ghosh v. Madan Mohan Ghosh and othersApplied¶28
AIR 1997 SC 471 · Who else cites this
Babulal v Habibnoor Khan (Dead) by L.Rs. and othersApplied¶37
AIR 2000 SC 2684 · Who else cites this
Kalyani Mahana
Banshidhar Sahu
NC Pati
Dr. A.K. Rath
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
