Noorjahan Akhter Vs. A Motaleb & others

Case No: Civil Revision No. 733 of 1998.

Judge: Md. Joynul Abedin ,

Court: High Court Division,,

Advocate: Mr. Khandaker Mahbuhuddin Ahmed,Mr. Fazlul Karim,,

Citation: 53 DLR (2001) 256

Case Year: 2001

Appellant: Noorjahan Akhter

Respondent: A Motaleb & others

Subject: Property Law, Partition,

Delivery Date: 2000-07-06

Noorjahan Akhter Vs. A Motaleb & others
53 DLR (2001) 256
 
Supreme Court
High Court Division
(Civil Revisional Jurisdiction)
 
Present:
Md. Joynul Abedin J
 
Noorjahan Akhter…………..Petitioner
Vs.
A Motaleb & ors…………………..Opposite Parties

 
Judgment
July 6, 2000.
 
Partition Act (IV of 1893)
Section 4
In order to get benefit of section 4,it is not necessary that a person must live in the family dwelling house. It is not residence or occupation but ownership of the dwelling house that entitles a person to apply under section 4 of the Act.
 
Section 4
The main purpose behind enacting section 4 is to protect and preserve the co-sharer’s sentiment and attachment to their ancestral house and also to preserve pardah and privacy of the members and inmates of the undivided dwelling-house. It is further held in this case that a co-sharer’s prayer to buy up a stranger-purchaser may not be refused on technical ground.
 
Cases Referred To-
AIR (1940) Rangoon 53 & AIR (1953) Patna 344; AIR 1928 Calcutta 539; ILR 1923 (Born) 73; Md. Tazammal Hossain Talukder Vs. Purni Agarwalini, 10 DLR 318 & Sayesta Bibi and ors Vs. Juma Sha and ors, 42 DLR (AD) 53.
 
Lawyers Involved:
Md. Fazlul Karim with Altaf Hossain Khan & Ranjan Chakravorty, Advocates—For the Petitioner.
Kh. Mahbubuddin Ahmed with MA Azim Khair Advocates—For the Opposite Party No. 1.

Civil Revision No. 733 of 1998.
 
Judgment
 
Md. Joynul Abedin J.- This Rule at the instance of the petitioner calls in question the judgment and dated 25-11-1997 passed by learned Subordinate Judge Second Court, Dhaka in Miscellaneous Case No. 29 of 1995 arising out of a partition suit being Title Suit No.3 of 1983 rejecting an application under section 4 of the Partition Act.

2. Plaintiff-opposite party No.1 has filed the aforesaid Title Suit No. 3 of 1983 in the Court of the Subordinate Judge, 2nd Court, Dhaka with a prayer for partition on the allegations, inter alia, that one Akhtaruzzaman owned and possessed 2½ kathas of land fully described in the schedule to the plaint by virtue of registered sale deed dated 28-5-1957 from one Zehadon Khatoon. After the death of Akhtaruzzaman the said schedule property devolved on the defendant-petitioner and the defendant- opposite party No.2 as his legal heirs defendant petitioner being the daughter and defendant-opposite party No.2 being his sister in equal shares according to Mohammadan Law. While defendant-opposite party No. 2 i.e. the sister of Akhtaruzzaman was continuing as owner in possession in respect of her 8 annas share of the schedule property plaintiff opposite party No.1 purchased her share measuring 20 Chhataks of land including a “Chhapra Ghar” standing thereon by two sale deeds dated 30-4-1982 and 3-9-1982 and went into possession thereof. Since the schedule property is a non-partitioned ejmali property the plaintiff opposite party No.1 has filed the present suit for partition for undertaking development work on his portion of the suit property.

3. The defendant-petitioner has been contesting the suit by filing written statement contending amongst others, that the schedule property being a dwelling house belonging to an undivided family, plaintiff-opposite party No.1 is not entitled to any partition of the schedule property.

4. During the pendency of the partition suit the defendant-petitioner filed an application under section 4 of the Partition Act for buying up the portion of the schedule property purchased by the plaintiff-opposite party No. 1 from defendant opposite party No.2 by starting Miscellaneous Case No. 29 of 1995.

5. The learned Subordinate Judge after hearing the parties rejected the said application on the ground that since the tenants of both the plaintiff-opposite party No.1 and the defendant- petitioner are residing on the schedule property, the same ceased to be the “dwelling house belonging to an undivided family” as contemplated under section 4 of the Partition Act.

6. Mr. Fazlul Karim, learned Advocate appearing on behalf of the defendant-petitioner vehemently argues that mere occupation of the schedule property by the tenants will not destroy the character of a dwelling-house belonging to an undivided family.” Because it is the ownership for the dwelling house and not its actual occupation which will count the learned Advocate further argues that the marriage of the defendant-petitioner to a different family will also not have the effect of destroying the character of the schedule property belonging to an undivided family. The learned Advocate in support of his contention refers to the decisions reported in 10 DLR 318, 7 PLR (Dhaka) 945 and 42 DLR (AD) 53.

7. Mr. Kh. Mahbubuddin Ahmed, the learned Advocate appearing for the plaintiff-opposite party in reply submits that the defendant-petitioner as well as the defendant-opposite party being female members have ceased to be members of undivided family of late Akhtaruzzaman i.e. the original owner of the schedule property, because of their marriage to different families. Accordingly, the schedule property has ceased to be a dwelling house belonging to an undivided family and, as such, section 4 has no application in the present case. The learned Advocate also contends that the application under section 4 being pre-mature was rightly rejected.

8. In order to appreciate the contentions raised by the learned Advocates for both the parties it would be necessary to reproduce section 4 of the Partition Act, which reads as under.
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 sub-section (1) two or more members of the family being such share-holders severally undertake to buy such share the Court shall follow the procedure prescribed by sub-section (2) of the last foregoing section.”

9. An application under section 4 to succeed the following three conditions are to be fulfilled-(1) the house belongs to an undivided family, (2) the share thereof has been transferred to a person who is a stranger to the family and (3) the transferee has sued for partition.

10. The important question for consideration is whether the purchaser was a member of the undivided family to which the dwelling house belonged at the time of sale.

11. The object of section 4 is to enable the member of the undivided family to buy out an outsider who is a transferee from one of the co sharers. In order to get the benefit of section 4 it is not necessary that a person must live in the family dwelling house. Because it is not the residence or occupation but the ownership of the dwelling house that entitles a person to apply under section 4 of the Partition Act. The words “dwelling-house” under section 4 means not only the house itself but also the land and appurtenance. These are ordinarily and reasonably necessary for its enjoyment. The word “family” is often used to indicate a body of persons formed by those who are merely connected by blood or affinity. The words “undivided family” means that the members of the family are undivided qua the dwelling house. In other words, a family which owns a dwelling-house and has not divided it. To constitute “undivided family” it is not necessary that the members should constantly reside in the dwelling-house nor they need to be joint in mess. It is the ownership of the dwelling-house and not the actual occupation of the house which counts, vide AIR 1928 Calcutta 539. It has been held in the case reported in ILR 1923 (Born) 73 that in order to decide whether it is a family dwelling-house, it is only necessary to look at the ownership of the dwelling-house and not it’s actual occupation. This view has been supported in the case reported in Md Tazammal Hossain Talukder Vs. Purni Agarwalini, 10 DLR 318.

12. It has been held in the case of Sayesta Bibi and ors Vs. Juma Sha and ors reported in 42 DLR (AD) 53 that the main purpose behind enacting section 4 is to protect and preserve the co-sharer’s sentiment and attachment to their ancestral house and also to preserve pardah and privacy of the members and inmates of the undivided dwelling house. It is further held in this case that a co-sharer’s prayer to buy up a stranger-purchaser may not be refused on technical ground.

13. In view of what is stated above, the contention of the learned Advocate Mr. Kh. Mahbubuddin Ahmed for the plaintiff-opposite party that the dwelling-house in question being under occupation of the tenants had lost its character as ‘dwelling-house belonging to an undivided family’ relying on the decision reported in AIR 941 Rangoon 53 and AIR (1953) Patna 344 is not acceptable. Because in those two cases the element of occupation of the dwelling-house and not the ownership thereof was found important as a necessary ingredient for determining the words “undivided family” occurring in section 4. But the contrary view has been taken in this regard in the decisions already reported and discussed” in 10 DLR 318, 7 PLR (Dhaka) 945 and 42 DLR (AD) 53 and I hold that better view has been expressed in these decisions.

14. With regard to the second contention of Mr. Ahmed that the application under section 4 was premature is also not accepted being without any substance. Because such application invoking section 4 can be made at any stage before the preliminary decree.

15. In the background of what has been held above. I find that the learned Subordinate Judge has committed an error of law in passing the impugned order and as a result there has been a miscarriage of justice. The defendant-petitioner being a co-sharer to the suit land has a right to safeguard her attachment to her ancestral house and to preserve pardah and privacy while enjoying her portion of the dwelling-house as a member of the undivided family within the meaning of section 4 of the Partition Act.

16. In the result, the Rule is made absolute and the impugned judgment and order dated 25-11-1997 passed by the learned Subordinate Judge in Miscellaneous Case No. 29 of 1995 arising out of Title Suit No. 3 of 1983 is hereby reversed. The defendant-petitioner is therefore entitled to get the benefit of section 4 of the Partition Act and purchase the share of the plaintiff in the schedule property.

17. Accordingly the order dated 11-3-1998 passed by this Court staying all further proceedings of Title Suit No.3 of 1983 now pending in the Court of the Subordinate Judge, 2nd Court, Dhaka stands vacated.
I make no order as to costs.
Ed.