Holding

An application under Section 4 of the Partition Act is not maintainable unless the stranger transferee has sued for partition or is a party to the partition suit.

Summary

The case concerned a dwelling‑house owned by an undivided family in which one co‑owner sold his one‑third share to Babu Lal, a stranger to the family. Respondent No.1, the decree‑holder in a partition suit, sought a decree under Section 4 of the Partition Act, 1893, to buy out Babu Lal's share, even though Babu Lal had never filed a suit for partition nor been a party to the suit. The Trial Court dismissed the application as non‑maintainable, but the Madhya Pradesh High Court reversed that decision, holding the application maintainable. On appeal, the Supreme Court examined the conditions laid down in Ghantesher Ghosh v. Madan Mohan Ghosh, requiring that the stranger transferee must sue for partition or be a party to the suit. Finding that Babu Lal had not satisfied this condition, the Court held the Section 4 application untenable. Consequently, the High Court’s order was set aside and the trial court’s dismissal restored.

Issues considered

Whether an application under Section 4 of the Partition Act, 1893 is maintainable when the stranger transferee has not sued for partition or been a party to the partition suit.
Whether the High Court erred in holding the application maintainable despite the absence of a partition suit by the transferee.

Legislation cited

Subjects

Partition ActSection 4pre‑emption rightundivided familystranger transfereepartition suitmaintainability

Judgment

A BABULAL k '
v.
HABIBNOOR KHAN (DEAD) BY LRS. AND ORS.

APRIL 26, 2000
..
B [S.B. t\1A1MUDAR AND U.C. BANERJEE, JJ.]
\

Pa11ition Act, 1893 :

S. 4-Memberof an undivided family-Share in family property, a dwell-
ing house-One p011ion of house sold to a stranger-Suit for partition by the
c member-Stranger neither filing suit for partition nor was he made a party in
pa11ition suit.filed by one ofthe members-Said member filing application u/s.
4 for purchasing the share transfetTedto stranger-Held, application not main-
tainable-Before s. 4 can be pressed in service by any of the co-owners of the -.il_
dwelling house, it has to be shown that occasion had arisen'tor him to move u/
D s. 4 because of the stranger transferee himself moving for partition and sepa-
rate possession of the share of the other co-owner which he would have pur-
chased-T11e condition is totally lacking in present case as purchaser was nei-
ther plaintiff nor defendant in the suit-Jn a partition suit defendants are as
good as plaintiffs and court has to ascertain their respective shares in the joint
pmperty and subsequently has to separate them by metes and bounds. ~
E
Ghantesher Ghosh v. Madan Mohan Ghosh and Others, [1996] 11 SCC
446, relied on.

AlekhaMant1i v. Jagabandhu Mantri & Ors., Am (1971) Orissa 127,
-'

held, inapplicable.
F
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1549 of
1980.

From the Judgment and Order dated 3.5.80 of the Madhya Pradesh
High Court in C.R. No. 147 of 1977.
G
S.K. Gambhir, Anil K. Sharma, (Awanish Sinha) for T.Y. Singh for
the Appellant. ...
The following Order of the Court was delivered

H The shmt qu~stion posed for our consideration in this appeal on grant
684
----
BABULAL v. H. KHAN 685
of special leave under Article 136 of the Constitution of India is as to A
whether application moved under Section 4 of the Partition Act, 1893 (for
short 'the Act') by respondent No. 1, who was the decree-holder in the
partition suit, was maintainable in law.

A few facts leading to this appeal are required to be noted at the outset
to appreciate this controversy between the parties. B

Respondent No. 1 had brought a suit for partition and separate posses-
sion of his I/4th share in a dwelling house situated at Indore in the State of
Madhya Pradesh. The said dwelling house consisted of two portions belong-
ing to an undivided family. One portion out of the two portions of the house c
had been sold to non-applicant No. 3 before the High Court Babu Lal who
was a stranger to the family and the rest portion of it had been bought in
a court auction in execution of a mortgage decree by one Kundanbai, whose
legal representative is the present appellant Babu Lal. The suit filed by
respodnent No. 1 was dismissed by the Trial Court, but, in appeal a prelimi-
nary decree was passed for partition and separate possession of plaintiff-
D
respondent No. l's share in the suit property. Pursuant to the said preliminary
decree a Commissioner was appointed to effect partition by metes and bounds
and to apportion mesne profits among the claimants. One Afzalnoor Khan,
the younger brother of respondent No. 1, who was one of the defendants, did
not raise any objection, with the result that a final decree in terms of the E
preliminaiy decree came to be passed on 5th September, 1967. On 5th May,
1968 respondent No. I-original plaintiff initiated execution proceedings for
effecting the partition by metes and bounds on spot. Certain objections were
raised by the appellant. They were overruled and it was found by the Trial
Judge on 7th November, 1973 that a supplementary final decree was yet F
required to be passed. In the meantime, the Commissioner submitted his
rep01t along with the site plans recommending the partition of the dwelling

-
house.

It is pertinent to note that respondent No. 1 raised no objections to
the said report of the Commissioner or the plans submitted by him. It was G 1

at the stage when the Court was about to close the proceedings by passing
appropriate final orders that respondent No. 1 on 18th June, 1976 moved
an application under Section 4 of the Act undertaking to buy the share of
the appellant stranger transferee of the interest of other defendant Afzalnoor
Khan. The said applications was contested by the appellant by submitting H
686 SUPREME COURT REPORTS [2000] 3 S.C.R.
A that it was not maintainable. The learned Trial Judge accepted th~ said
objection by dismissing the application as not maintainable. The Trial Court
took the view that the application under Section 4 of the Act was not
maintainable as the appellant-transferee had not sued for partition. In a
revision application moved under Section 115, Code of Civil Procedure,
B 1908 a learned Single Judge of the High Court took a contrary view and
held that the application was maintainable as the object of the enactment
was to enable member of a family to buy out a stranger transferee from one
of the members. The Court further observed that as regards the transferee
having not sued for partition, it was not necessary that the transferee as such
should have filed a suit. For coming to that conduction the learned Judge
c of the High Cou1t relied on a decision of the Orissa High Court in the case
of Alekha Mantri v. Jagabandhu Mantri & Ors., AIR (1971) Orissa 127.
Accordingly the application was held to be maintainable and the order of
the Trial Court was set aside with a direction that the record may be sent
to the Trial Judge for making a valuation of the transferee's share in such
D manner as he may think fit and proceed to deal with the matter as laid down
in Section 4 of the Act.

It is this decision of the High Court which has been challenged in the
present appeal on grant of special leave, as not~d earlier.

E Learned senior counsel for the appellant vehemently contended that
on the express language of Section 4 of the Act, t11e application moved by
the decree-holder respondent No. 1 was not maintainable. Section 4 of the
Act reads as under : ..
"4 Paitition suit by transferee of share in dwelling-house (1) Where
F 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 traµsferee sues for partition, the court shall, if any member
of the family being a shareholder shall undertake to by the share of
such transferee, make a valuation of such share in such manner as
G it thinks fit and direct the sale of such share of such shareholder, and
may give all necessary and proper directions in that behalf.

(2) If in any case described in sub-section (1) two or more members
·of the family being such shareholders severally undertake to buy such
share, the court shall follow the procedure prescribed by sub-section
H (2) of the last, foregoing section."
BABULAL v. H. KHAN 687
It was submitted by Shri Gambhif, learned senior counsel for the A
appellant that one of the requirements of the Section is that such an
application under Section 4 can be moved by one of the co-sharers of a
dwelling-house provided a stranger/outsider/purchaser being one of the co-
sharers moved for partition. That in the present case it has not so happened.
The appellant had never moved for separating his share by metes and bounds B
..
even at the stage of execution of the final decree. He submitted the as the -
property has already stood partitioned from 1974 onwards and the Commis-
sioner's report was not objected to by respondent No. 1, his application was
not maintainable even on that ground.

The aforesaid contention of Shri Gambhif is well sustained in view c
of a decisions of this Court in the case of Glzantesher Ghosh v. Madan
Mohan Ghosh and Others, (1996] ll SCC 446. In the said case this Court
has taken the view, speaking through one of us (S.B. Majmudar, J.) that
before Section 4 can apply five conditions have to be satisfied as under :
D
"(l) A co-owner having undivided share in the family dwelling
house should effect u·ansfer of his undivided interest therein;

(2) The transferee of such undivided interest of the co-owner should
be an outsider or stranger to the family; E

(3) Such transferee must sue for partition and separate possession of
the undivided share transfeITed 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
F
put forward his claim of pre-emption 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 transfer share belonging to the
G

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 transfeITed share of the
stranger transferee in the dwelling house belonging to the undivided H
688 SUPREME COURT REPORTS [2000) 3 S.C.R.
A 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."

B In para 5 of the Report it was observed that the real controversy
between the parties is whether the appellant who was a stranger transferee
of 1/3rd undivided interest of Smt. Radha Rani in the suit property can
be said to have sued for partition so as to satisfy the remaining condition
of the said provision even though the other conditions were found to be
satisfied.
c
Therefore, one of 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 h!m by the co-owner con-
D cerned. It is, of course, true that in the said decision it was observed that even
though the stranger transferee of such undivided interest moves 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,
E however, before Section 4 of the 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 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. This condition is
totally lacking in the present case. To recapitulate, respondent No. I-decree
F
holder himself, after getting final decree, had moved an application under
Section 4 of the Act. Appellant, who was a stranger purchaser, had not filed

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any application for separating his share from the dwelling house, either at the
stage of preliminary decree or fmal decree or even thereafter in execution
proceedings.
G
Only on this short ground, therefore, the application under Section 4
of the Partition Act has to be treated as not maintainable as held by the Trial
Court. The decision of the Orissa High Court in Alekha M antri 's case (supra)
relied upon by the learned Single Judge also cannot be of any avail in view
H of the settled legal position discernible from the aforesaid decision of this
BABULAL v. H. KHAN 689
Court in the case of Ghantesher Ghosh (supra). A

It has also to be noted that in Alekha Mantri's case (supra) the alienee
of undivided share of a co-owner in a joint family house was already
defendant No. 1 in the suit filed by the plaintiff for partition and separate
pos~ssion of his undivided share. The question before the Orissa High Court
B
was ..yhether alienee from the co-owner who was already defendant No. 1
could be subject to proceedings under Section 4 of the Partition Act by the
plaintiff. The Court had to examine the question whether the person who bad
brought the suit for partition ~as himself not the stranger purcliaser but one
who was a member of the family and when he is seeking to purchase the
share of the vendee from the co-owner alienating his share in favour of a c
stranger purchaser and when such a vendee was himself a party to the suit
as defendant No. 1 could make such a vendee defendant answerable under
Section 4 of the Act or not. In the background of this fact situation, the Court
observed in para 13 of the report that Section 4 of the Partition Act would
also be applicable where the suit for partition was brought by a member of D
the undivided family against the stranger transferee, and that it is not
necessary that the latter should have filed the suit. He being a defendant
could have specifically claimed a share in the residential house. Now, it must
be noted that in a pru.tition suit even defendants are as good as plaintiffs and
the Court has to ascertain their respective shares in the joint property and
E
subsequently has to separate them by metes and bounds. This decision
obviously cannot apply to the facts of the present case where t11e alienating
stranger purchaser of undivided interest of a co-owner in tl1e suit house was
neither plaintiff nor defendant in the suit. The Trial Court in the present case
has clearly noted tliat the transferee- Kundanbai or Babu Lal were not parties
to the suit. Consequently, it could not be said that the transferee stranger
F
purchaser of co-owner interest in the joint property was suing for partition
either as a plaintiff or even as a defendant in the suit for partition. If the
ratio of the aforesaid decision 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 t11e G
partition suit claiming to be as good as the plaintiff nor even as a successor
of the decree holder seeks execution of partition decree, can still be subjected
to Section 4 of the Petition 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. H
690 SUPREME COURT REPORTS (2000] 3 S.C.R.
A The Civil Appeal is, therefore, allowed. The impugned judgment and
order of the High Court are set aside and the judgment of the Trial Court
is restored. With the result, the application moved by respondent No. I-decree
holder under Section 4 of the Act will stand dismissed. In the facts and
circumstances of this case there will be no order as to costs.

B R.P. Appeal allowed.