Shahana Chowdhury and another Vs. Kamrun Nahar Begum [4 LNJ AD (2015) 167]

Case No: CIVIL APPEAL No. 113 of 2010

Judge: Nazmun Ara Sultana,

Court: Appellate Division ,,

Advocate: Mahbubey Alam,,

Citation: 4 LNJ AD (2015) 167

Case Year: 2015

Appellant: Shahana Chowdhury and another

Respondent: Kamrun Nahar Begum

Subject: Pre-emption,

Delivery Date: 2014-06-11


APPELLATE DIVISION
(CIVIL)
 
Nazmun Ara Sultana, J,
Syed Mahmud Hossain, J,
Muhammad Imman Ali, J.
 
Judgment on
11.06.2014
  Shahana Chowdhury and another ....Appellants
Versus
Kamrun Nahar Begum
....Respondent
 
Partition Act (IV of 1893)
Section 4
It might be that the petitioner-respondent Kamrun Nahar Begum used to reside in the house of Kala Miah with his family but where, admittedly, all the heirs of Kala Miah sold out their entire share in the suit property in question, that is the entire property to the petitioner-respondent and the appellants opposite parties, there remains no question of any undivided family now. . . . (10)
 
Partition Act (IV of 1893)
Section 4
The transferee appellants did not file any suit for partition, rather they, as earlier purchasers, filed pre-emption cases to preempt the land purchased the petitioner-opposite party. So the other element for attracting the operation of section 4 of the Partition Act-that is the transferee should sue for partition-also is absent in this case.         . . .(11)
 
Partition Act (IV of 1893)
Section 4
Both the petitioner-respondent and the appellants were stranger purchasers and admittedly the appellants purchased their share before the purchase of the petitioner-respondent. In the circumstances the prayer of the petitioner-respondent for buying up the share of the appellant opposite parties is not entertainable at all.    . . . (12)
 
Partition Act (IV of 1893)
Section 4
In a case under section 4 of Partition Act the possession of the parties is not at all a necessary factor to be considered. So, the allowance of the prayer for buy off on the ground that the petitioner is in possession of the property in question and the purchaser opposite parties are not in possession-has been most erroneous and illegal. . . . (13)
 
For the Appellants:   Mr. Mahmudul Islam, Senior Advocate, (Mr. Fazlenur Tapash, Advocate with him) instructed by Mr. Taufique Hossain, Advocate-on-Record.
For Respondent: Mr. Mahbubey Alam, Senior Advocate, (Mr. M. A. Quayum, Senior Advocate with him) instructed by Mr. Syed Mahbubar Rahman, Advocate-on-Record.
 
CIVIL APPEAL No. 113 of 2010
 
JUDGMENT
 
Nazmun Ara Sultana, J.
 

This Civil Appeal, by leave, has arisen  out of the judgment and order dated 11.03.2009 passed by the High Court Division in Civil Revision No.4245 of 2008 making the rule absolute, setting aside the judgment and order dated 13.08.2008 passed by the learned Joint District Judge, Dhaka in Civil Revision No.199 of 2008 summarily rejecting the revision thereby affirming the judgment and order dated 07.05.2008 passed by the learned Joint District Judge, 6th Court, Dhaka in Miscellaneous Case No.26 of 2006 under section 4 of the Partition Act dismissing the case.
 
The facts necessary for disposal of this Civil appeal, in short, are that one Kala Miah was the owner of the property in question. Kala Miah died leaving two wives, 8 sons and 10 daughters. From these heirs of Kala Miah the present respondent Kamrun Naher Begum purchased 2 anas 3 godans and 13 till share and the present appellants purchased the rest 13 anans 16 gondas,3 koras, 2 kranties, 7 till share. Kamrun Nahar Begum-the respondent herein-filed Partition Suit No.86 of 1993 for declaration of title and for partition of her share in the suit property and got a decree on 04.06.2003. In that decree the present appellants also were allotted separate shaham for the rest 13 anas 16 gondas, 3 karas, 2 kranties, 7 till share. The said judgment and decree was upheld upto the High Court Division. Thereafter, the plaintiff of that Title Suit No.86 of 1993 (the respondent herein) filed Miscellaneous Case No.26 of 2006 for buying up the share of the opposite parties (the present appellants) under section 4 of the Partition Act contending, inter-alia, that the property in question was her homestead property and she had been possessing the same with her family members since 1978; that the opposite parties are stranger purchasers and they had no possession in this property. That the petitioner had been possessing the entire property on paying rent, municipal taxes, electricity, WASA and gas bills. The opposite parties are strangers and as such the petitioner was entitled to by up the share of the opposite parties and she was ready to pay the compensation money.
 
The opposite party Nos.1 to 3 contested the case by filing written statement contending, inter-alia, that they acquired the major share of about 14 annas in the property in question by three documents dated 30.04.1981 which was earlier then the purchase of the petitioner. That these opposite parties earlier filed Miscell-aneous Case Nos.189 and 190 of 1984 for pre-emption of the land of the petitioner and it went upto Appellate Division and the Appellate Division found that the property fell within Dhanmondi Residential Area and for this reason the pre-emption would not lie.
 
The trial court, on consideration of evidence adduced by both the parties and the facts and circumstances dismissed that miscellaneous case under section 4 of the Partition Act finding that the petitioner was not a member of undivided family and heir of Kala Miah and that she was a stranger purchaser and her purchase was subsequent to the purchase of the contesting opposite parties who were major share holders. The revisional court below affirmed this judgment of the trial court. The High Court Division set aside the concurrent findings and decision of the courts below and allowed the miscellaneous case by its impugned judgment and order.
 
Mr. Mahmudul Islam, the learned senior Counsel appearing for the appellants has made submissions to the effect that admittedly the petitioner-respondent was not heirs of Kala Miah nor was a member of the family of Kala Miah, but she, admittedly became co-share by virtue of purchase from the heirs of Kala Miah. The learned Counsel has argued that both the courts of facts, on proper appreciation of these facts and circumstances rightly dismissed the case under section 4 of the Partition Act, but the High Court Division without adverting to or reversing the concurrent findings and decision of the courts below most unjustly allowed the case under section 4 of the Partition Act ignoring the fact that none of the elements for attracting operation of section 4 of the Partition Act was present in this case. The learned Counsel has argued that in this case it is an admitted fact that all the members of Kala Miah-the original owner have transferred their entire interest in favour of the petitioner and the respondents and now there is no question of undivided family and that the petitioner, admittedly, being brother’s daughter of one of the wives of Kala Miah-is not a member of Kala Miah’s family and that there is no evidence at all to prove that the petitioner was a member of Kala Miah’s family. The learned Counsel has contended that the High Court Division most unreasonably and unjustly allowed this miscellaneous case under section 4 of the Partition Act by the impugned judgment and order and as such the impugned judgment and order is liable to be set aside.
 
Mr. Mahbubey Alam and Mr. M. A. Quayum, the learned Senior Advocates for the respondent has made submissions supporting the impugned judgment and order of the High Court Division. They have made submissions to the effect that the petitioner being brother’s daughter of one of the wives of Kala Miah used to reside in the property in question with the family of Kala Miah and as such her claim under section 4 of the Partition Act cannot be brushed aside.
 
We have considered the submissions of the learned Advocates of both the sides and gone through the impugned judgment and order of the High Court Division, those of the revisional court below and the trail court and also the evidence on record.   
 
Section 4 of the Partition Act provides:
 
”Where a share of a dwelling house belonging to an undivided family has been transferred to a persons 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 directions in that behalf.”
 
From the above quoted section 4 it is evident, that the elements which must co-exists in order to attract the operation of section 4 of the Partition Act are:
  1. that the dwelling house should belong to an undivided family,
  2. that the share thereof should have been transferred to a person who is not a member of such family,
  3. that the transferee should sue for partition.
Here, in the present case, the main element for attracting section 4 of the Partition Act is absent. There is no existence of any undivided family now,  Admittedly, Kala Miah was the original owner  and possessor of the property in question and he died leaving 2 wives, 8 sons and 10 daughters. Admittedly, all of these heirs of Kala Miah have transferred their entire share in the property in question. It is also an admitted fact that the present appellants purchased about 14 annas share of the property in question from the heirs of Kala Miah before the purchase of 2 annas, 3 gondas and 13 till share by the petitioner respondent Kamrun Nahar Begum. So, admittedly the appellants and opposite party are now owners of the entire property in question and none of these appellants and the opposite party is heir of Kala Miah. So, the question of undivided family now does not arise at all.
 
From the side of the petitioner-respondent though some arguments has been advanced to the effect that the petitioner being the brother’s daughter of one of the wives of Kala Miah used to reside in the property in question with the family of Kala Miah and as such she should be treated as the member of family of Kala Miah, but this argument also is not acceptable at all. It might be that the petitioner-respondent Kamrun Nahar Begum used to reside in the house of Kala Miah with his family but where, admittedly, all the heirs of Kala Miah sold out their entire share in the suit property in question, that is the entire property to the petitioner-respondent and the appellants opposite parties, there remains no question of any undivided family now.
 
In this case, admittedly, the transferee appellants did not file any suit for partition, rather they, as earlier purchasers, filed pre-emption cases to preempt the land purchased the petitioner-opposite party. So the other element for attracting the operation of section 4 of the Partition Act-that is the transferee should sue for partition-also is absent in this case. 
Both the petitioner-respondent and the appellants were stranger purchasers and admittedly the appellants purchased their share before the purchase of the petitioner-respondent. In the circumstances the prayer of the petitioner-respondent for buying up the share of the appellant opposite parties is not entertainable at all.
 
It appears that the trail court, on proper appreciation of all the facts and law rightly rejected the case under section 4 of the Partition Act. The revisional court below also, on proper appreciation of the facts and law rightly affirmed this judgment and order of the trial. But it appears that the High Court Division set aside these concurrent findings and decision of the courts below and allowed the case under section 4 of the Partition Act, on making findings to the effect that “the opposite parties are strangers of the suit premises and the petitioner is residing in the suit land.”  Evidently, the High Court Division committed serious wrong and illegality in allowing the case under section 4 of the Partition Act on the above findings. In a case under section 4 of Partition Act the possession of the parties is not at all a necessary factor to be considered. So, the allowance of the prayer for buy off on the ground that the petitioner is in possession of the property in question and the purchaser opposite parties are not in possession-has been most erroneous and illegal. It appears that the learned Judge of the High Court Division, in its impugned judgment, though has quoted section 4 of the Partition Act, but could not appreciate the true purport of this very section.
 
However, from the above discussion, it is evident, that the impugned judgment and order of the High Court Division cannot be sustained in law.
 
In the circumstances this appeal is allowed on contest without any order as to cost. The impugned  judgment and order of the High Court Division is set aside and those of the courts below are hereby affirmed.
 
Ed.