Disputes between co-sharers

A co-sharer is a person who has share, as per land revenue record, in a particular area of land. A co-sharer is assumed to be in possession of every inch of land although his actual possession may be on a smaller part of land only. For example there are ten co-sharers in hundred killa of land. On such land one person may have actual possession of ten killa or fifty killa. Although exact share of each co-sharer is reflected on land revenue records, the actual area in possession is not mentioned. This becomes reason of co-sharer disputes. Disputes between co-sharers also arise when one co-sharer sells land beyond his share in common land or when one tries to illegally possess the land or when one steals crops of the others. Such disputes drag on for years and generally result in criminal cases of cheating, fraud, hurt and grievous hurt. An example of such criminal case and how it was quashed by High Court is on our quashing of FIR page.

Some important legal points about co-sharers are:-

  • A co-owner has an interest in the whole property and also in every parcel of it.
  • Possession of joint property by one co-owner, is in the eye of law, possession of all even if all but one are actually out of possession.
  • A mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all.
  • The above rule admits of an exception when there is ouster of a co-owner by another. But in order to negative the presumption of joint possession on behalf of all, on the ground of ouster, the possession of a co- owner must not only be exclusive but also hostile to the knowledge of the other as, when a co-owner openly asserts his own title and denies that of the other.
  • Passage of time does not extinguish the right of the co-owner who has been out of possession of the joint property except in the event of ouster or abandonment.
  • Every co-owner has a right to use the joint property in a husband like manner not inconsistent with similar rights of other co-owners.
    Where a co-owner is in possession of separate parcels under an arrangement consented to by the other co-owners, it is not open to any one to disturb the arrangement without the consent of others except by filing a suit for partition.
  • The remedy of a co-owner not in possession, or not in possession of a share of the joint property, is by way of a suit for partition or for actual joint possession, but not for ejectment. Same is the case where a co-owner sets up an exclusive title in himself.
  • Where a portion of the joint property is by common consent of the co-owners reserved for a particular common purpose, it cannot be diverted to an inconsistent user by a co-owner; if he does so, he is liable to be ejected and the particular parcel will be liable to be restored to its original condition. It is not necessary in such a case to show that special damage has been suffered.

Important judgments on co-sharer’s possession and concept of adverse possession are:-

Darshan Singh v. Gujjar Singh (Dead) by Lrs., (SC) 2002(2) PLR 233

Possession of property by one co-sharer is deemed to be in possession of all co-sharers through him unless there is ouster of other co-sharers by denial of their title.

SUPREME COURT OF INDIA

JUDGMENT
S.N. Phukan, J. – This appeal by special leave is directed against the judgment of the High Court of Punjab and Haryana in Letters Patent Appeal No. 551/75.

2. Briefly stated, the facts are as follows :

3. Two brothers, Hira Singh and Jagjit Singh were convicted in a murder case. During their confinement in jail, Jagjit Singh absconded and Hira Singh was granted pardon. After release Hira Singh took possession of the entire land including the share of his brother, Jagjit Singh. Hira Singh died sometime in the year 1920 and on his death, one Smt. Har Kaur, wife of a collateral took possession of the land. Rulia Singh, the adopted son of Hira Singh questioned the mutation as well as possession of Har Kaur and, therefore, she filed a suit for declaration that Rulia Singh was not Validly adopted by Hira Singh and also sought permanent injunction restraining Rulia Singh from interfering with her possession. The suit was dismissed ultimately by the High Court and the land including the share of the Jagjit Singh was mutated in the revenue records in the name of Rulia Singh in 1930 and thereafter he remained in undisturbed possession of the land till his death in 1962. Darshan Singh, Ala Singh and Pritam Singh – defendant Nos. 1-3 (appellants in the appeal) – grandsons of Rulia Singh through his daughter got their names mutated in respect of the land including the share of Jagjit Singh. One Gujjar Singh a sixth-degree collateral of Jagjit Singh challenged the mutation unsuccessfully and thereafter filed the present suit claiming a declaratory decree to the effect that being a collateral of Hira Singh and Jagjit Singh, he was entitled to succeed to the land left behind by them. The suit was dismissed by the trial court. The first appellate court partly allowed the appeal granting a decree in favour of Gujjar Singh only in respect of land of Jagjit Singh, which was affirmed by the High Court in second appeal. In the present Letters Patent Appeal, decree of the appellate court was upheld with modification to the extent that the land of Jagjit Singh was divided between the plaintiff- Gujjar Singh and other collaterals, who were impleaded as respondent Nos. 2-7. Against the said judgment, the parties are before us in this appeal.

4. All the courts below have held that Rulia Singh was adopted by Hira Singh according to the customary law of Punjab and, therefore, he could under the said custom inherit only the properties of Hira Singh and not the properties of Jagjit Singh, collateral of Hira Singh. On this point there is no dispute. The trial court dismissed the suit holding that Rulia Singh and thereafter his successors, the appellants were in adverse possession of the suit land. The first appellate court held that according customary law, Rulia Singh being adopted son of Hira Singh, was entitled to inherit the share of Hira Singh but not of Jagjit Singh and the plea of adverse possession set up by the appellants over the land of Jagjit Singh was rejected. As stated earlier, the judgment of the first appellate court was upheld by the High Court with modification and accordingly appeal was partly allowed,

5. The first question, which needs our consideration, is whether plaintiff, Gujar Singh, a sixth-degree collateral of Jagjit, Singh could prove his right to inherit land of Jagjit Singh. The first appellate court as well as the High Court held that in the eye of law, Jagjit Singh, who was not being heard for more than 7 years, could be considered to be “dead only on the date on which the present suit, was filed.” It was also held that the burden of proof regarding the date of death of Jagjit Singh was on the appellants, which could not be discharged.

6. In Sri Vidya Mandir Education Society (Regd.) v. Malleswaram Sangeetha Sabha and others, 1995 Supp. 1 SCC 26, this court considered provisions of Sections 107 and 108 of the Evidence Act and after noticing the decision of the Privy Council in Lal Chand Marwari v. Mahant Ramrup Gir and another, AIR 1296 Privy Council 9 held that there is no presumption of exact time of death under Section 108 of the Evidence Act and the date of death has to be established on evidence by person who claims a right for establishment of which that fact is essential. The case in hand as plaintiff claimed succession to the estate of Jagjit Singh, and therefore, the burden was on him to prove the date of death. There is neither any pleading nor an averment by the plaintiff-respondent regarding date of death of Jagjit Singh. The view of the High Court that as Jagjit Singh was not heard for more than 7 years and, therefore, the date of filing of the present suit would be considered as date of death of Jagjit Singh is contrary to above provisions of law.

7. In view of the settled position of law, the succession of plaintiff-Gujar Singh to the estate of Jagjit Singh would open only on the death of Jagjit Singh. As plaintiff-Gujjar Singh could not prove the date of death of Jagjit Singh, therefore, his succession to his estate did not open on the date of filing of the suit. We, therefore, hold that the above findings of the appellate courts are not sustainable in law.

8. The next question which requires our decision is whether Rulla Singh and after his death the present appellants, who were in possession of the land since 1930 and also got their names mutated, have perfected their title by adverse possession over the land of Jagjit Singh. It is well settled that if a co-sharer is in possession of the entire property, his possession cannot, be deemed to be adverse for other co-sharers unless there has been an ouster of other co-sharers.

9. Learned counsel appearing for the appellants has placed reliance on the decision of the Lahore High Court in Sardar Amar Singh v. Sardarni Shiv Datt Kaur, AIR 1937 Lahore 890. The learned Judge held that removal of the name of the absentee co-sharer from revenue records at the instance of other co- sharers is an over act amounting to ouster and commences adverse possession of the co-sharers in possession, the reason being that removal of the name was done openly and if the absentee co-sharers would have taken an interest in the land, he would not have failed to notice of it in the ordinary course and hence his knowledge of the adverse claim for other co-sharer may be reasonably presumed. In reply, learned counsel for the respondents has placed reliance on a decision in Bashir Ahmad and others v. Parshottam and others, AIR 1920 Oudh 337. The learned Single Judge held that if a property belongs to several co- sharers and one co-sharer is in possession of the entire property, his possession cannot be deemed to be adverse to other co-sharers and he must be deemed to be in possession on behalf of all other co-sharers and adverse possession cannot be founded on the basis of such exclusive possession, unless there has been ouster of other co-sharers. Regarding mutation in the revenue record learned Judge held that mutation in the name of one co-sharer cannot be any indication of adverse possession until it is shown that it was obtained after a clear declaration to the effect that title of other co-sharer was denied.

10. In our view, the correct legal position is that possession of a property belonging to several co-sharers by one co-sharer shall be deemed that he possess the property on behalf of the other co-sharers unless there has been a clear ouster by denying the title of other co-sharers and mutation in the revenue record in the name of one co-sharer would not amount to ouster unless there is a clear declaration that title of the other co-sharers was denied.

11. After the death of Hira Singh, one collateral – Smt. Har Kaur got her name mutated and took possession, which was questioned by Rulia Singh. Both the parties were litigating and ultimately the court decided in favour of Rulia Singh, who got possession of the land and his name was mutated in the revenue records. After the death of Rulia Singh, his grandsons – the present appellants, also got their names mutated which was challenged unsuccessfully by the plaintiff. Thus, it is proved that present appellants got their names mutated after denying the title of collaterals of Jagjit Singh, including the present appellant. On these facts, we hold that as names of present appellants were mutated in the revenue record after rejecting the claims of plaintiff and other collaterals, there was a clear ouster of other co-sharers of Jagjit Singh.

12. From the judgment of the trial court, we find that Rulia Singh mortgaged a part of the land and sold some part treating himself as the owner.

13. On the facts proved in the case in hand, we are of the view that the appellants have proved that their possession of the land in question is in continuity for more than the statutory period, in publicity and adverse to the Jagjit Singh and his other collaterals and they have perfected their title over the land by adverse possession.

14. We, therefore, find merit in the present appeal and accordingly it is allowed by setting aside the impugned judgment and the judgment of the trial court is restored. Consequently, suit filed by the plaintiff is dismissed. We direct the parties to bear their own costs.

Appeal allowed.

Govindammal v. R. Perumal Chettiar, (SC) 2007 AIR (SC) 204

Adverse possession

SUPREME COURT OF INDIA

JUDGMENT
A.K. Mathur, J. – These appeals are directed against the judgment and order dated 30.12.1998 passed by learned Single Judge of the Madras High Court in Second Appeal No. 2253 of 1986 and Second Appeal Nos. 145 and 146 of 1988.

2. Brief facts giving rise to the present appeals are that the plaintiff filed a suit being O.S. No. 409 of 1981 for partition and separate possession and also claimed for rendition of accounts. The plaintiff is the second wife of Raju Naidu. Raju Naidu married Rajakanthammal as his first wife and she died in or about 1946 leaving behind the defendant Nos. 1 and 2 as their sons and one daughter by name Saraswathi. After the death of his wife, Raju Naidu married second time to the plaintiff as the second wife. There was no issue from the second wife. Raju Naidu died intestate in 1954 and on his death the plaintiff and defendant Nos. 1 and 2 were the legal heirs to inherit the properties of Raju Naidu. ‘B’ schedule properties are the separate and self acquired properties of Raju Naidu. It is alleged that the plaintiff and Defendant Nos. 1 and 2 lived amicably for sometime. Afterwards, the plaintiff started living separately and Defendant Nos. 1 and 2 were giving her share of income from the properties. She demanded partition of the properties. It was promised by both the sons of Raju Naidu and step sons of the plaintiff but without any result. One year before filing of the present suit, Defendant Nos. 1 and 2 started acting against the interest of the plaintiff and they stopped giving the income to the plaintiff. Then they alienated item Nos. 3 to 8 of the scheduled properties to Defendant No. 3 and further to Defendant No. 4 the entire ‘B’ & ‘C’ schedule properties under the pretext of the decree in O.S. No. 101 of 1967 and O.S.No. 247 of 1970 against Defendant Nos. 1 and 2. The plaintiff was not a party to these two suits and therefore that decree was not binding on her. It is alleged that a notice was sent for the first time for partition of the properties sometime in 1979 which was replied by the defendants. It is alleged that a reply was sent by the defendant No. 1 to the plaintiff wherein it was stated that the allegations are false and item No. 2 has been purchased recently by the defendant No. 1 out of the sale proceeds got by him by selling item Nos. 3 to 8 in favour of Defendant No. 3. Item No. 2 also belonged to the joint family. It was also alleged that at the time of marriage, Raju Naidu had already executed a registered settlement deed dated 17.4.1947 and in that 38 cents were given to the plaintiff and the plaintiff remained in peaceful possession of the ‘C’ schedule properties. Thereafter, when the suit was filed the defendant No. 1 filed a written statement and in that it was alleged that the plaintiff does not have any share in the property and ‘C’ schedule property was already settled in her favour. A panchayat was also convened and arrangement was made that ‘C’ scheduled property would remain with her and she would not claim any share in the property. It is also alleged that Defendant No. 1 maintained the defendant No. 2 and their sister and gave her in marriage. After the death of her husband, she and her minor son are still maintained. It is also alleged that sale deed in favour of defendant No. 3 was executed by defendant No.1 to meet the debts to the extent of Rs. 40,000/- by way of promissory notes and simple mortgages. As such, the suit filed by the plaintiff was barred by law. Defendant No. 2 also contested the suit and even challenged the marriage of the plaintiff with Raju Naidu. It is alleged that after the death of Raju Naidu only two sons became the sole owners by way of survivorship. It is alleged that he has sold undivided half of the properties for valid consideration. Defendant No. 3 was a purchaser and he contested the suit and submitted that the suit was not maintainable without the prayer for cancellation of the two sale deeds and he also took the plea of limitation. Defendant No. 4 being another purchaser of the property, took the plea that the plaintiff only lived with the deceased Raju Naidu for few months and she left on her own and went to her parents’ house. It was also alleged that his son Mahendran has purchased Door No. 8-A and 8-B in Kutchery Road for a valid consideration of Rs. 26,000/- from defendant No. 2. It is also alleged that he has also filed a suit being OS No. 416 of 1981 for allotment of share.

3. So far as ‘A’ schedule properties are concerned, only partial relief has been given to plaintiff with regard to ‘A’ schedule properties. We are primarily concerned with ‘B’ scheduled properties. The trial court initially framed 10 issues and 7 additional issues were framed in OS 409 of 1981 and 11 issues were framed with regard to OS 416 of 1981. Both the suits were tried together as there was common evidence in both the suits. Large number of documents were filed by both the sides. The trial court after hearing the parties, dismissed OS No. 409 of 1981 and passed a preliminary decree for partition and separate possession of plaintiff’s half share in the suit ‘A’ schedule property in OS No. 416 of 1981. Aggrieved against this order defendant No. 1 preferred an appeal being AS No. 55 of 1984 and the plaintiff also preferred an appeal being AS No. 244 of 1984 on the file of the District Judge. The appeal of the plaintiff with regard to OSNo. 409 of 1981 was allowed and the judgment and decree was set aside and a preliminary decree was passed for partition and separate possession of plaintiff’s ⅓rd share in the properties mentioned in ‘B’ schedule and further directed defendant Nos. 1 to 3 to render accounts in respect of items 3 to 8 of plaint ‘B’ schedule properties and directed defendant Nos. 1 and 2 to render accounts in respect of the income from items 1 and 2 of the plaint ‘B’ schedule properties from the date of the suit and further directed Defendant No. 4 to render accounts in respect of the income from the portion of item 1 of ‘B’ schedule property from the date of purchase. Defendant No. 1’s appeal being AS No. 55 of 1984 was also allowed and the judgement and decree in OS 416 of 1981 was modified to the effect that the plaintiff was entitled to the share of Thambaiyan the 2nd defendant in the plaint ‘A’ schedule property and that the suit for partition was dismissed in view of the suit for general partition in OS No. 409 of 1981 was decreed. Aggrieved against these two orders, three second appeals were preferred before the High Court. In Second Appeal No. 2253 of 1986 the following substantial questions of law was framed.

“Whether the plaintiff’s claim was not barred by limitation by exclusion and ouster and defendants 1 and 2 in the suit had not acquired title to the suit properties by adverse possession ?”
In Second Appeal Nos. 145 and 146 of 1988, the following substantial questions of law were framed.

“(1) Whether the Lower Appellate Court is right in negativing the claim of the defendants that they had acquired title by adverse possession ?

(2) Whether the Lower Appellate Court was right in overlooking that the plaintiff had been exclused even before the coming into force of Act 30 of 1956 and had thereby lost her right by exclusion and ouster ?

(3) Whether the Lower Appellate Court was right in omitting to note the suit instituted 12 years after the issue of notice under Ex.B 3 dated 2.11.1955 admitting ouster and dispossession is barred by limitation and the relief of partition would not be available ?”
4. In fact, the basic question for our consideration in the present appeals is whether the plaintiff is entitled to ⅓rd share in the properties or not ? In this connection, the question with regard to the adverse possession which was specifically argued has to be dealt with and whether the plaintiff lost her right for ⅓rd share in the properties of Raju Naidu because of adverse possession or not ? In case, the plea of the defendants succeeds and that she has lost her right to claim ⅓rd share in the properties of Raju Naidu because of adverse possession then in that case, nothing survives in the present appeals before us.

5. Many pleas were taken like the marriage of the plaintiff with deceased Raju Naidu was not valid and it was rejected outright. The plain case is that the plaintiff filed a suit for separate possession and rendition of accounts of the properties being the wife of deceased Raju Naidu. The plea of the defendants was that they are the only legal heirs of the deceased Raju Naidu and they have dealt with the properties subsequently by mortgaging the same and they have enjoyed the properties to the knowledge of the plaintiff openly for more than the statutory period and whatever right she had stood extinguished. In order to settle the issue, 38 cents of land was settled in her favour way back in 1947 and a panchayat was also convened and she felt satisfied and did not claim any right in ‘B’ schedule properties from 1955. It was also pointed out that on 2.11.1955 through a counsel the plaintiff got a notice issued demanding partition and her share but she did not take any steps. Therefore, they are enjoying the properties hostile to the interest of the plaintiff. Therefore, they took the plea of adverse possession also.

6. So far as ‘B’ schedule properties is concerned, the findings of the courts below are that the suit properties are the self acquired properties of Raju Naidu and it is not ancestral property. Therefore, the plaintiff was entitled to her ⅓rd share in all the properties. The plaintiff in order to substantiate her claim made oral as well as documentary evidence. At the same time, the defendants also led evidence to prove that the plaintiff’s right in the properties stood extinguished on account of adverse possession.

7. The defendants in order to oust the claim of the plaintiff took definite plea of adverse possession hostile to the interest of the plaintiff to her knowledge and led evidence to show that a notice was sent by the plaintiff on 2.11.1955 in which she claimed that she was not given any income from the properties of Raju Naidu. Though the plaintiff appeared in the witness box as P.W.1, she denied to have sent any such notice. It is alleged that the notice was sent through the Advocate but no such advocate was produced by the defendants. However, the defendants sent a reply to that notice. But the original notice alleged to have been sent by the plaintiff was produced as Ex.B 3 but no advocate was produced to prove that notice. P.W.1 has categorically denied to have sent any such notice and she also deposed that after the death of her husband, Raju Naidu, she was thrown out of the house. Though after the death of her husband, for some time she was given income from the properties but thereafter the defendants stopped payment of the income arising out of the properties. She also admitted that some of the properties were usufructuary mortgage. After some time she came to know that certain properties were being sold. Therefore, she woke up in 1979 and filed the present suit. Unfortunately, the plea of the defendants succeeded before the High Court that the notice, Ex.B 3 was given in 1955 and no suit was filed till 1979. Therefore, the High Court took the view that her right in the properties got extinguished because of adverse possession as she gave notice in 1955 and did not take possession of the properties till 1979. Therefore, it was apparent that the possession by Defendant No. 3 was hostile to her interest. We regret to say that this finding arrived at does not appear to be correct one. In fact after filing of the suit the notice, Ex.B 3 which she did not pursue any further, her right cannot be extinguished. Though she has denied issuance of such notice through Advocate but that is not sufficient to defeat the claim of the widow. This was only an infructuous circumstance that when she was thrown out of the house she could not pursue her legal remedy by filing the suit but when she found that the properties were being sold by the step sons, and it came to her knowledge, therefore, she woke up to file the suit for asserting her claim. There is no denial that she was the legally married wife of the deceased. This has been proved, established and accepted by all the three courts despite the fact that the plea of falsity of the marriage was raised by the step sons. Once it is established that she was the legally married wife of Raju Naidu she automatically she claims her share in the property from the estate of Raju Naidu by way of survivorship. Just because a notice was issued and she did not pursue the same that does not extinguish the claim of the plaintiff thereby giving a handle in the hands of the step sons by way of adverse possession. In order to prove adverse possession something more is required. Once it is accepted that she was the legally married wife of Raju Naidu then her right to claim partition and share in the property stands out and that cannot be defeated by the plea of ouster or adverse possession. In order to oust by way of adverse possession, one has to lead definite evidence to show that to the hostile interest of the party that a person is holding possession and how that can be proved will depend on facts of each case. In the present case, it is the widow who has been thrown out and she has been moving from pillar to post. The relief cannot be denied to her just because she sent notice claiming partition of the properties and she did not file any suit thereafter and the steps sons where holding the properties adversely and hostile to her knowledge. It was the joint property of Raju Naidu and it shall devolve by way of survivorship i.e. two sons and his wife as the daughter has already given up her share in the property. Therefore, in order to oust one of the co-sharers only on the basis of the so called notice cannot be deemed to be sufficient to come to a conclusion of adverse possession or extinguishing her rights. In this connection, our attention has been invited to an earliest decision in the case of Hardit Singh & Ors. v. Gurmukh Singh & Ors. [AIR 1918 PC 1] wherein it has been held as under :

“If by exclusive possession of joint estate is meant that one member of the joint family alone occupies it, that by itself affords no evidence of exclusion of other interested members of the family. Uninterrupted sole possession of such property, without more, must be referred to the lawful title possessed by the joint holder to use the joint estate, and cannot be regarded as an assertion of a right to hold it as separate, so as to assert an adverse claim against other interested members. If possession may be either lawful or unlawful, in the absence of evidence, it must be assumed to be the former. The evidence of actual user is not sufficient to establish abandonment or exclusion.”
Similarly, our attention was invited to a decision in the case of Varada Pillai & Anr. v. Jeevarathnammal [ILR Madras (Vol.43) 244]. In that case, their Lordships quoted the earlier decision referring to English rule with regard to possession of several co-parceners, joint tenants or tenants-in- common with the possession of others so as to prevent limitation affecting them. In the case of Cully v. Deo [(1840)11 ad. & E.1008] their Lordships observed as follows :

“Generally speaking, one tenant-in-common cannot maintain an ejectment against another tenant-in-common, because the possession of one tenant-in-common is the possession of the other, and, to enable the party complaining to maintain an ejectment, there must be an ouster of the party complaining. But, where the claimant, tenant-in-common, has not been in the participation of the rents and profits for a considerable length of time, and other circumstances concur, the Judge will direct the jury to take into consideration whether they will presume that there has been an ouster…. And, if the jury find an ouster, then the right of the lessor of the plaintiff to an undivided share will be decided exactly in the same way as if he had brought his ejectment for an entirety.”
In the case of Mohaideen Abdul Kadir & Ors. v. Mohammad Mahaideen Umma & Ors. reported in ILR 1970 2 Madras 636 their Lordships held that no hard and fast rule can be laid down. But the following relevant factors may be taken into consideration : (i) exclusive possession and perception of profits for well over the period prescribed by the law of limitation; (ii) dealings by the party in possession treating the properties as exclusively belonging to him; (iii) the means of the excluded co-sharer of knowing that his title has been denied by the co-owner in possession. There may be cases, where, owing to long lapse of time, it may not be possible for the co-owner in possession to adduce evidence as to when the ouster commenced and how it was brought home to the knowledge of the excluded co-owner. In such a case the law will presume ouster as an explanation of the long peaceful possession of the co-owner in possession. In order to maintain the person in such possession the law presumes a lawful origin of the possession. Therefore, no hard and fast rule can be laid down from which it can be inferred that any co-sharer has ousted his co-sharer. That will depend upon facts of each case. Simply long possession is not a factor to oust a co-sharer but something more positive is required to be done. There must be a hostile open possession denial and repudiation of the rights of other co-owners and this denial or repudiation must brought home to the co-owners. Simply because a co-sharer gave notice claiming partition of the suit properties and possession and did not pursue the matter further, that will not be sufficient to show that the co-sharer has lost his/her right. In the present case, it is only when ‘B’ schedule property was being sold by two brothers then alone the plaintiff woke up to realise that the step sons were not interested to give her share in the property and she rushed to file the suit. Therefore, by no stretch of imagination it can be inferred in the present case that the plaintiff had lost her right to claim partition and share in the property.

8. In the case of Vidya Devi alias Vidya vati (dead) by LRs v. Prem Prakash & Ors., reported in 1995(3) RRR 65 : (1995)4 SCC 496 the question was whether the plea of acquisition of title by adverse possession was available to the co-bhumidhar or not. In that context, their Lordships held that when no period of limitation is fixed for filing a suit for partition by a co-bhumidhar against his other co-bhumidhars in respect of a joint holding, the question of the other co-bhumidhar acquiring his title to such holding by adverse possession for over 12 years can never arise. It was further observed that if that be so, such plea of perfection of title by adverse possession of a holding by a co-bhumidhar against his other co-bhumidhar as defence in the latter’s suit for partition can be of no legal consequence.

9. In the case of Mohammad Baqar & Ors. v. Naim-un-Nisa Bibi & Ors. reported in AIR 1956 Supreme Court 548 it was observed that under the law possession of one co- sharer is possession of all co-sharers, it cannot be adverse to them, unless there is a denial of their right to their knowledge by the person in possession and exclusion and ouster following thereon for the statutory period. There can be no question of ouster, if there is participation in the profits to any degree.

10. In the case of Md. Mohammad Ali (dead) by LRs v. Jagadish Kalita & Ors. reported in (2004)1 SCC 271 this Court examined a series of decisions on the question of adverse possession and after extracting the legal propositions from various decisions, their Lordships concluded that long and continuous possession by itself, it is trite, would not constitute adverse possession. Even non-participation in the rent and profits of the land to a co-sharer does not amount to ouster so as to give title by prescription. A co-sharer, as is well settled, becomes a constructive trustee of other co-sharer and the right of a person or his predecessors-in-interest is deemed to have been protected by the trustees.

11. As against this, our attention was also invited to a decision in the case of T.P.R. Palania Pillai & Ors. v. Amjath Ibrahim Rowther & Anr. reported in AIR 1942 Madras 622, their Lordships observed that in order to constitute adverse possession, the possession must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. Therefore, in cases of adverse possession also their Lordships have said that the possession should be for longer period and it is known to the competitor that it is held adverse to his knowledge. Their Lordships further held that in cases of usufructuary mortgage granted by one of several co-sharers if a person remains in possession of the land and cultivates it for years, the requirement of continuity, publicity and extent for adverse possession are fully complied with. But that is not the case here.

12. In the case of Nirmal Chandra Das and Ors. v. Mohitosh Das & Ors. reported in AIR 1936 Calcutta 106 their Lordships observed that in order to succeed on the ground of ouster, the person setting up ouster is bound to show that he did set up an adverse or independent title during the period which was beyond the statutory period of 12 years. Their Lordships further observed that there can be no adverse possession by one co-sharer as against others until there is an ouster or exclusion; and the possession of a co-sharer becomes adverse to the other co-sharer from the moment there is ouster. Therefore, what is ouster and what is adverse to the interest of the claimant depends upon each case. In this case, a plea was raised that certain properties were usufructuary mortgage. But that was not in a manner to show that these properties are adverse to the interest of the plaintiff. It was only when ‘B’ schedule properties were sought to be sold and it came to the knowledge of the plaintiff that her step sons were not interested in partition of the property and giving her share, she filed the suit in the year 1979. Therefore, for the first time in 1979 she came to know that adverse possession is being sought to be established and her interest in ‘B’ schedule properties is sought to be sold by her step sons. But in any case, just because she gave a notice and she did not pursue the same, on that basis no adverse inference can be drawn and she cannot be ousted on that count by way of adverse possession.

13. As a result of our above discussion, we are opinion that the view taken by the learned Single Judge of the High Court of Madras in dismissing the suit of the plaintiff (O.S. No. 409 of 1981) is not correct and the said order is set aside. Hence, this appeal is allowed. The plaintiff is entitled to her ⅓rd share in the ‘B’ schedule properties being the widow of Raju Naidu and she is also entitled to rendition of accounts. So far as O.S. No. 416 of 1981 is concerned, we need not go into detail on the findings of fact recorded by the courts below. However, we make it clear that Govindammal being the second wife of late Raju Naidu will have her share in the ‘A’ schedule properties also. The appeal is accordingly disposed of. No order as to costs.

Janaki Pandyani v. Ganeshwar Panda (dead) by Lrs., (SC) 2001(10) SCC 434

Adverse Possession

SUPREME COURT OF INDIA

ORDER
V.N. Khare, J. – Madhusudan Panda, the husband of the appellant, Dhaneshwar Panda and Trinadha Panda are the real brothers and sons of Sivarama Panda. All three brothers are members of Hindu joint family. The husband of the appellant filed a suit for partition and possession of one-third share in the joint family property. A written statement was filed by the defendants- respondents wherein it was alleged that Madhusudan Panda, by virtue of Ex.B/1, had relinquished his share in the property and, therefore, he is not entitled to any share in the property. Alternatively, it was also pleaded that the defendants have acquired title by adverse possession. The trial Court found Ex. B/1 as not proved and further the defendants and plaintiffs being co- owners of the property, the question of adverse possession does not arise. Consequently, the suit was decreed. First appeal was preferred against he said judgment and was dismissed. However, second appeal was allowed by the High Court and the suit was decreed. The High Court held that Ex. B/1 was not proved. Even after holding so, the High Court held that since the defendants acted upon Ex. B.1, therefore, they acquired title by adverse possession over the joint family property. It is against the said judgment, the plaintiff is in appeal before this Court.

2. After we heard learned counsel for the appellant and perused the record, we are of the view that the judgment of the High Court is not sustainable in law. The High Court found that Ex. B/1 was not signed by Madhusudan Panda and was not proved. Therefore, the High Court cannot make Ex. B/1 as basis for acquisition of title by adverse possession. This approach of High Court in holding that defendants have acquired title to property by adverse possession was erroneous. Further, merely because defendants had converted the thatched house into a tiled house and also dug a well, it does not mean it was an ouster of the plaintiff. Admittedly, the property in dispute is joint family property and the plaintiff and the defendants are the co-sharers of the property. In fact, there is no partition of the property and so long as property is not partitioned, it continues to be a joint Hindu family property. Under such circumstances, one co-sharer cannot claim adverse possession against the other co-sharer. In view of the said legal position, the High Court fell in error in holding that the defendants had acquired title in the property by adverse possession.

3. For the aforesaid reasons, we find that the appeal deserves to be allowed. Consequently, the judgment of the High Court is set aside and the appeal is allowed. There shall be no order as to costs.

Appeal allowed.

Wuntakal Yaloi Chenabasavana Gowd v. Rao Bahadur Y. Mahabaleshwarappa, (SC) 1954 AIR (SC) 337

Adverse possession

SUPREME COURT OF INDIA

JUDGMENT
B.K. Mukherjea, J. – This appeal arises out of a suit, commenced by the plaintiff respondent, in the court of the District Judge of Bellary, being Original Suit No. 17 of 1944, for establishment of his title to one-half share of the land described in the schedule to the plaint and for recover of possession of the same after partition with defendant No. (1) who is the appellant before us. The suit was dismissed by the trial Judge by his judgment dated 23rd of July 1945. On an appeal being taken against that decision by the plaintiff to the High Court of Madras, a Division Bench of the High Court by its judgment dated the 28th of March 1949 allowed the appeal and reversed the judgment of the trial court. The defendant No. 1 has now come up on appeal to this court on the strength of a certificate granted by the High Court under Article 133 of the Constitution read with Sections 109 and 110 of the Civil Procedure Code.

2. To appreciate the contentions that have been raised before us it may be necessary to give a short resume of the material facts. The land in suit, which has an area of a little over 9 acres, was admittedly the property of one Basappa who died some time before 1918, leaving three daughters ‘to wit’ Paramma, Pompamma and Hamgamma. Under a settlement entered into with the immediate reversioner of Basappa which is evidenced by two registered deeds – Exs. P-2 and P-3 – executed respectively in the years 1918 and 1919, the three sisters got about 15 to 16 acres of wet land in absolute right. Hampamma subsequently took away her one-third share in these lands and we are not concerned with her any further in this litigation.

Paramma and Pompamma continued to enjoy the remaining two-thirds share of the property and it is this two-thirds share comprising 9 acres 49 cents of wet land which forms the subject-matter of the present suit. Pompamma married one Nagana Gowd and after giving birth to two sons ‘to wit’ Siddalingana and Chenabasavana, she died in the year 1923. It is not disputed that her share in the lands mentioned above devolved upon these two sons. After Pompamma’s death, Nagana married again and stayed with his second wife in his ancestral village, while these two infant sons of Pompamma remained at village Kampli with Paramma, their mother’s sister, who reared them up as her own sons.

On the 22nd June 1923 Paramma executed a deed of gift in favour of the two sons of her sister by which she conveyed to the later her own share in the suit property. The result was that the two sons of Pompamma got the entitety of 9 acres 49 cents of land which was owned jointly by their mother and their mother’s sister Paramma. Shortly after this gift was made, Siddalingana, the elder son of Pompamma, died in the year 1924 and the plaintiff’s case is that his half-share in the disputed property devolved upon his father Nagana under the Hindu Law of Inheritance. It is admitted however that Paramma continued to possess the entirety of the land on behalf of the younger son Chenabasavana who is defendant No. 1 in the suit.

On the 25th August 1946 there was a lease deed (Ex. D-1) and its counter part (Ex. D-2) executed by and between Paramma on the one hand and Nagana as the father and guardian of the infant Chenabasavana on the other by which the infant represented by his father purported to grant a lease of the entire property to Paramma for a period of 12 years at a rental of Rs. 500 a year. Two rent receipts passed by Nagana to Paramma in token of the receipt of rents, reserved by this lease, on behalf of Chenabasavana have been proved in this case (Exs. D-4 and D4-1) and they are of the years 1927 and 1932 respectively.

3. It appears that in 1934 Nagana instituted a suit as guardian of his infant son Chenabasavana in the Munif’s court at Hospet to recover a sum of Rs. 500 as rent from Paramma on the basis of the lease mentioned above. The suit was decreed ‘ex parte’ and the decree was discharged later on by a document (Ex. D-3) dated the 14th November 1934 executed by Nagana, which contains a recital that as Paramma had borrowed much money to purchase lands for the minor, all future rents payable under the lease were also to be considered as fully paid. It is in evidence and not disputed, that near about this time Nagana became financially involved and on the 27th of August 1935 he executed a deed of mortgage by conditional sale in respect of half share of the disputed land in favour of defendant No. 2 to secure an advance of Rs. 3,000.

The document recites that the half share of the land which was kept as security devolved upon the mortgagor on the death of his son Siddalingana and that he was in possession of the same. On the 16th July 1936 Nagana sold the mortgaged property by a deed of sale (Ex. P-6) to the mortgagee himself for a consideration of Rs. 3000 which was the principal sum due under the mortgage. It is admitted that the purchaser did not and could not obtain possession of the property at any time since then and on the 2nd May 1944 he sold the property to the plaintiff by a conveyance which is Ex. P-1. On the 16th July 1944 the plaintiff brought the present suit against Chenabasavana as defendant No. 1 for recovery of a demarcated half share of the disputed property after partition with the latter on the strength of the purchase mentioned above and his own vendor was impleaded as defendant No. 2 in the suit.

4. The suit was contested by defendant No. 1 and a number of pleas were taken by him in his written statement. The substantial defence put forward was of a two-fold character. It was contended in the first place that under the deed of gift executed by Paramma in favour of defendant No. 1 and his deceased brother Siddalingana, the donees became joint tenants with rights of survivorship. Consequently on the death of Siddalingana his interest devolved upon defendant No. 1 and not on his father. The other and the more material defence raised was that the plaintiff’s suit was barred, as he was never in possession of the property and the defendant No. 1 acquired a good title by adverse possession. Both these points were decided against the plaintiff by the leased District Judge who tried the suit.

It was held that the deed of gift executed by Paramma conferred no right on Nagana as the heir of his son and such rights if any were specifically disclaimed by Nagana by the lease deed and also by the receipts which he granted to Paramma as the guardian of his minor son. It was held further that the plaintiff’s suit was bound to fail as he or his predecessors were never in possession of the property within 12 years from the date of the suit. The plaintiff indeed was an alienee of a co-tenant but it was held that the ordinary rule of one co-owner being presumed to hold on behalf of the other’s could not apply to the present case, as Nagana disclaimed his rights as a co- owner and purported to act only on behalf of his infant son Chenabasavana whose exclusive title to the lands he definitely acknowledged. In view of these findings the trial judge dismissed the plaintiff’s suit.

5. Thereupon the plaintiff took an appeal against this decision to the High Court of Madras and the appeal was heard by a Division Bench consisting of Rajamannar C.J. and Balkrishna Ayyar J. The learned Judges held, differing from the trial court, that the two sons of Pompamma took their shares in their mother’s property which devolved upon them by inheritance, as well as in the property which they obtained under the deed of gift executed in their favour by Paramma, as tenants in common and not as joint tenants and consequently on the death of Siddalingana his interest vested on his father Nagana and not in his brother, the defendant No. 1.

On the other question the High Court held that thought Nagana by his acts and conduct in connection with the execution of the lease deed, did exhibit an animus to hold the property solely on behalf, of Chenabasavana to the exclusion of himself, yet this animus did not last beyond 1935 when he asserted his own right as a co-sharer to half share of the plaint property by executing the mortgage deed in favour of defendant No. 2. In these circumstances it was held that the defendant No. 1 did not acquire title by adverse possession and the plaintiff was entitled to succeed. The defendant No. 1 has now come up in appeal to this court.

6. Mr. Ayyangar appearing in support of the appeal has no pressed before us the contention that was raised on behalf of his client in the courts below, that as the two brothers took the property as joint tenants and not as tenants in common, the interest of Siddalingana passed on his death to his brother, the defendant No. 1 and not Nagana. We must take it therefore that after the death of Siddalingana, Nagana became a co-owner of the disputed property with his minor son Chenabasavana. As the plaintiff purports to derive his title as a co-owner with defendant No. 1 and this being the position, the presumption of law would be that the possession of one co-owner was on behalf of the other also unless actual owner was proved.

To defeat the claims of the plaintiff therefore it is incumbent upon defendant No. 1 to prove that he held the property adversely to his co-owner for the statutory period. The peculiarity of the present case is that here the joint owners of the property were the father and his infant son, of whom the father himself was the guardian and the infant could not act in law except through the guardian.

7. It is conceded on behalf of the appellant that the mere fact that the father did not participate in the profits of the property which was left to the management of Paramma on behalf of the infant could not by itself made the possession of the son adverse to his father. But the acts and conduct of the father in connection with the lease deed of 1926 and the subsequent granting of receipts in terms thereof undoubtedly point to something mere than mere non-participation in the enjoyment or profits of the property or absence of objection to the exclusive enjoyment thereof by Paramma on behalf of the infant. In granting the lease on behalf of the infant the father definitely asserted the exclusive title of his son to the property and by implication denied his own rights as a co-owner thereto.

In law the possession of the lessee in the possession of the lessor and consequently ever since 1926 when Paramma began to possess the property as a lessee in terms of the lease deed her possession in law was the possession of the infant alone to the exclusion of Nagana the father. The fact that Nagana consented to such exclusion is immaterial. There can be in law under certain circumstances, adverse possession with the consent of the true owner. A common illustration of this rule is furnished by the class of ceases where the legal owner of a property transfers the same to another without the requisite legal formalities and though the transferee does not acquire a legal title to it by the transfer, yet if he gets possession of the property though with the consent of the transferor that possession becomes adverse to the owner and if continued for the statutory period creates a title in him.

8. We are not satisfied from the materials in this case that Nagana was ignorant of his rights as heir of his deceased son when he executed the lease in the year 1926. But even if he was as the exclusive possession of the infant was exercised with the full knowledge and consent of the father who openly acknowledged the title of his son, such possession could not but be adverse to the father. The learned Judges of the High Court seem to be of the opinion that the possession of the minor could be regarded as adverse from the date of the execution of the lease, as the father by being a party to the said document, did exhibit an animus to possess the common property on behalf of the minor alone to the exclusion o himself. But according to the learned Judges this affirms ceased as soon as Nagana executed the mortgage deed in 1935, asserting his right as joint owner of the property in dispute and the adverse possession of the son forthwith came to an end. With this view we are unable to agree.

9. Once it is held that the possession of a co-sharer has become adverse to the other co-sharer as a result of the mere assertion of his joint title by the dispossessed co-sharer would not interrupt the running of adverse possession. He must actually and effectively break up the exclusive possession of his co-sharer by re-entry upon the property or by resuming possession in such manner as it was possible to do. It may also check the running of time if the co-sharer who is in exclusive possession acknowledges the title of his co-owner or discontinues his exclusive possession of the property. On the materials on the record, none of these things seems to have been proved in the present case. Resumption of physical possession of re-entry upon the property was absolutely out of the question as the property was in the possession of a lessee.

The lease, it should be noted, was executed in 1926 and we have two rent receipts of the years 1927 and 1932 respectively by which Nagana acknowledged receipt of rents on behalf of his infant son in terms of the lease deed. The rent suit in 1934 was also brought by him in his capacity as guardian of defendant. No. 1 and the document Ex. D-3 by which the decree in that suit was discharged and a receipt was given in advance for all the subsequent rents point definitely to the conclusion that the entire rent for the whole period of 12 years was paid to and was accepted on behalf of Chenabasavana and Nagana either received any portion of it nor laid any claim to the same.

During the whole period of the lease and up to the present day the minor is admittedly in possession of the property and no act or conduct on his part has been proved either within the period of limitation or even after that which might be regarded as an acknowledgment of the title of his father as co-owner. In our opinion the fact that the father who had allowed himself to be dispossessed by his son exhibited later on his animus to treat the property as the joint property of himself and his son cannot arrest the running of adverse possession in favour of the son. A mere mental act on the part of the person dispossessed unaccompanied by any change of possession cannot affect the continuity of adverse possession of the deseizor.

10. The view taken by the High Court probably rests on the supposition that as it was the father, who acting on behalf of his son, asserted the exclusive title of the son to the property in denial of his own rights, it was open to the father again if he so chose to resale from that position and make a fresh declaration that the property was not the sole property of the son but belonged to him as well; and this subsequent act would annul the consequences of his previous act. This reasoning does not appear to us to be sound. The father’s acts in connection with the lease were entirely in his capably as guardian of his son. In the eye of the law they were this acts of the son, but the creation of the mortgage in 1935 was not the act of the father on behalf of his son; it was the personal act of the father himself qua co-proprietor of the son and the interest of one being adverse to the other such acts could not be held to be acts of the so performed through the father. It is extremely doubtful whether ‘qua’ guardian the father could make such declaration at all. Any change of intention on the part of the guardian alone and the minor can react to it again only through the guardian.

It may be proper in such cases for the father to renounce his guardianship before he could assert any right of his own against his ward; but it is not necessary for us to go into that question, as the mortgage in this case was made by the father not as guardian of the minor at all. It was no more than a declaration, by a person who dispossessed by his co-sharer, of his joint title to the property and as has been already pointed out, as it did not involve any change of possession it did not affect the adverse possession of the deseizor. In our opinion, therefore the view taken by the learned Judges of the High Court is not proper and cannot be sustained. The result is that the appeal is allowed; the judgment and decree of the High Court are set aside and those of the district Judge restored. The appellant will have his costs in all the courts.

Appeal allowed.

Des Raj v. Bhagat Ram (Dead) by LRs., (SC) 2007(9) SCC 641

Co-sharers and law of adverse possession

SUPREME COURT OF INDIA

JUDGMENT
S.B. Sinha, J. – The defendants are the appellants. The parties were co- owners. The suit properties are situate in two villages; 232 bighas and 10 biswas in village Samleu and 76 bighas in village Punjoh.

2. It is not in dispute that whereas the plaintiffs-respondents had all along been in possession of the property situate in village Samleu, the appellants are in possession of village Punjoh. Allegedly, in the revenue settlement record of rights prepared in the year 1953, joint ownership of lands situate in village Samleu was recorded. However, it was observed therein that if the predecessors of the appellants “do not give share” to the plaintiff-respondent in the land in village Punjoh, the plaintiff-respondent may ask for the review of the order.

3. On the plea that the land situate in village Punjoh was jointly recorded, it was urged that the entry in the said record of rights attained finality.

4. Indisputably, however, the appellants had filed two suits; one in the year 1968 and another in 1978. In the aforementioned suits, a prayer for partition and separate possession was claimed by the appellants herein in respect of ⅔rd share in the entire land situate in village Samleu. Admittedly, the 1968 suit was dismissed in 1977 and the 1978 suit was dismissed in 1984.

5. Plaintiff-respondent continued to possess the properties situate at village Samleu.

Plaintiff-respondent filed a suit in the year 1986 for declaration of his title as also permanent injunction.

6. In paragraph 8 of the plaint, the plea of adverse possession was raised, which reads as under :

“The plaintiff has been in possession as owner in adverse possession on the land of the defendant No. 1 to 12, area 155 Bigha – 0 Biswa of the land for 12 years. Hence it is appropriate to declare the possession and ownership by way of adverse possession of the plaintiff on the land in disputed land and the defendant Nos. 1 to 22 are intending to alienate the land on the basis of mere entry in the papers. Therefore, it is proper to restrain the defendant Nos. 1 to 22 from selling, leasing out and transferring the land by any means.”
7. The Trial Court in view of the pleadings of the parties framed the following issues :

“1. Whether the plaintiff has become owner of the suit property by adverse possession as alleged ?

2. Whether the defendants are in joint possession of the suit property as co- sharers ?

3. Relief.”
8. By reason of a judgment and decree dated 9.10.1987, the learned Trial Judge opined that the plaintiff had been in exclusive continuous peaceful possession of the suit land to the exclusion of the other co-owners prior to settlement which took place in the year 1953.

9. Analysing the evidences brought on records, the learned Trial Judge opined :

“As per statements PW-1 Bhagat Ram plaintiff and Hishiara and others during settlement in the year 1953, as per copies of Tankih No. 4 Ex. P-4, No. 10 Ex. P-16 and No. 11 Ex. P-15, it is evident that present plaintiff Bhagat Ram had asserted his hostile possession and ousters of other co-owners even during settlement in the year 1953 and as per the copy of plaint Ex. P-1 in civil suit No. 42/74 instituted by Hushiara and others, Bhagat Ram had denied the title of other co-owners on which suit for joint possession against present plaintiff Bhagat Ram was filed on 2-3-1968 for joint possession. Bhagat Ram has denied the title of other co-owners during May, 1967 which led other co- owner to file suits for joint possession against present plaintiff Bhagat Ram which were admittedly dismissed as abatted on 24-12-1977 Ex. P-11 and 11-01- 1984 Ex. P-12. It is thus evident that Bhagat Ram had been making open assertion of his hostile title coupled with exclusive possession and enjoyment to the knowledge of other co-owners which is essential for adverse possession against co-owners was held in Krishan and others, Appellants v. Krishanoo and others Respondents AIR 1985 Himachal Pradesh 103…”
10. It had been categorically held that assertion of exclusive possession by the plaintiff was clear and explicit and the defendants-appellants had actual knowledge thereof.

11. The First Appellate Court dismissed the appeal preferred by the appellants herein affirming the said view holding that ‘no arrangement was arrived at between the co-sharers’ to the effect that the respondents would be cultivating the land on behalf of other co-sharers stating :

“…Be it noticed that no such arrangement was shown to have been ever agreed by the parties nor the contesting defendants have pleaded any such arrangement in the written statement. The arrangement contemplated in Tankih [Ex. P-2] with regard to denial of share of Bhagat Ram in the joint land of village Panjoh, was a reason for Bhagat Ram to claim an exclusive title in the disputed land situate at village Samleu and the offer itself was not a part of any mutual arrangement. Since the contesting defendants did not allow Bhagat Ram to have a share in the joint land of Panjoh, Bhagat Ram staked his claim of exclusive ownership in the disputed land situated at Samleu Pargna Chuhan and did not allow the contesting defendants to have any share in the disputed land of Samleu for that reason. This was a clear and open denial of the title of the contesting defendants in the disputed land, may be for the reason that the contesting defendants had not allowed the plaintiff to have a share in the joint land of village Panjoh. So, it is not correct that the plaintiff was in possession of the disputed land under some mutual arrangement.”
12. It was further held that repudiation of title of the defendant by the plaintiff was open and hostile.

13. In the Second Appeal preferred by the appellants, the High Court while determining the same, opined :

“In the present case, the plaintiff has specifically pleaded that he is in continuous possession of the land in dispute in open and unequivocal denial of title of defendants No. 1 to 22-A, since prior to 1952-53. As stated above, the longstanding revenue entries since 1952-53 record the plaintiff to be in exclusive possession of the land in dispute.

Ex. P.1 is the copy of the plaint of the suit instituted by some of the defendants in the year 1968, against the present plaintiff. This plaint is dated 29.2.1968. By virtue of this suit, the plaintiffs therein, who are the defendants in the present case, had prayed for joint possession of the land, which is the subject matter of this suit. In para 3 of this plaint, it has been averred that the plaintiff in the present case, was in exclusive possession of the land in dispute and that he was asserting and claiming himself to be the sole owner thereof.”
14. Referring to the two suits filed by the appellants herein, the High Court held :

“Therefore, on the basis of the material coming on the record, especially in the form of Ex. P-1, Ex. DW 2/A, Ex. P-11 and Ex. P-12, it is established that the plaintiff is coming in adverse possession of the land in dispute in complete denial of the title of the defendants No. 1 to 22- A and to their knowledge at least since 1968. The suit out of which the present appeal has arisen was filed on 20.8.1986, that is, after about 18 years from the date of denial of title of defendants 1 to 22-A by the plaintiff. The adverse possession as on the date of suit having continued for more than the statutory period of twelve years has, thus, ripened into ownership.”
15. Mr. R.K. Dash, learned senior counsel appearing on behalf of the appellants, would submit that the parties hereto being co-sharers, it was obligatory on the part of the plaintiff to plead and prove ouster. According to the learned counsel, the learned Trial Judge as also the Appellate Courts committed a manifest error in arriving at the conclusion that the plaintiff perfected his title by adverse possession.

16. Mr. E.C. Agrawala, learned counsel appearing on behalf of the respondents, on the other hand, supported the impugned judgments.

17. We have noticed hereinbefore the factual aspects of the matter which are neither denied nor disputed. Admittedly, the plaintiff-respondent had remained in possession for a long time i.e. since 1953.

18. It may be true that in his plaint, the plaintiff did not specifically plead ouster but muffosil pleadings, as is well known, must be construed liberally. Pleadings must be construed as a whole.

19. In Devasahayam (D) by LRs. v. P. Savithramma and Ors., 2005(4) RCR(Civil) 306 : 2005(2) RCR(Rent) 369 (SC) : [(2005) 7 SCC 653], this Court opined :

“The pleadings as are well-known must be construed reasonably. The contention of the parties in their pleadings must be culled out from reading the same as a whole. Different considerations on construction of pleadings may arise between pleadings in the mofussil court and pleadings in the Original Side of the High Court.”
20. Only because the parties did not use the terminology which they should have, ipso facto, would not mean that the ingredients for satisfying the requirements of statute are absent. There cannot be any doubt whatsoever that having regard to the changes brought about by Articles 64 and 65 of the Limitation Act, 1963 vis-a-vis Articles 142 and 144 of the Limitation Act, 1908, the onus to prove adverse possession would be on the person who raises such a plea. It is also furthermore not in dispute that the possession of a co-sharer is presumed to be possession of the other co-sharers unless contrary is proved.

21. A plea of adverse possession or a plea of ouster would indisputably be governed by Articles 64 and 65 of the Limitation Act.

22. In a case of this nature, where long and continuous possession of the plaintiff-respondent stands admitted, the only question which arose for consideration by the courts below was as to whether the plaintiff had been in possession of the properties in hostile declaration of his title vis-‘-vis his co- owners and they were in know thereof.

23. Mere assertion of title by itself may not be sufficient unless the plaintiff proves animus possidendi. But the intention on the part of the plaintiff to possess the properties in suit exclusively and not for and on behalf of other co-owners also is evident from the fact that the defendants- appellants themselves had earlier filed two suits. Such suits were filed for partition. In those suits the defendants-appellants claimed themselves to be co-owners of the plaintiff. A bare perusal of the judgments of the courts below clearly demonstrates that the plaintiff had even therein asserted hostile title claiming ownership in himself. The claim of hostile title by the plaintiff over the suit land, therefore, was, thus, known to the appellants. They allowed the first suit to be dismissed in the year 1977. Another suit was filed in the year 1978 which again was dismissed in the year 1984. It may be true, as has been contended on behalf of the appellants before the courts below, that a co-owner can bring about successive suits for partition as the cause of action therefor would be continuous one. But, it is equally well- settled that pendency of a suit does not stop running of ‘limitation’. The very fact that the defendants despite the purported entry made in the revenue settlement record of rights in the year 1953 allowed the plaintiff to possess the same exclusively and had not succeeded in their attempt to possess the properties in Village Samleu and/or otherwise enjoy the usufruct thereof, clearly go to show that even prior to institution of the said suit the plaintiff-respondent had been in hostile possession thereof.

24. Express denial of title was made by the plaintiff-respondent in the said suit in his written statements. The courts, therefore, in the suits filed by the defendants-appellants, were required to determine the issue as to whether the plaintiff-respondent had successfully ousted the defendants-appellants so as to claim title himself by ouster of his co-owners.

25. In any event the plaintiff made his hostile declaration claiming title for the property at least in his written statement in the suit filed in the year 1968. Thus, at least from 1968 onwards, the plaintiff continued to exclusively possess the suit land with knowledge of the defendants-appellants.

26. The parties went to trial fully knowing their respective cases. The fact that they had been co-owners was not an issue. The parties proceeded to adduce evidences in support of their respective cases. Defendants-Appellants, keeping in view of the fact that they have unsuccessfully been filing suit for partition, were also not prejudiced by reason of purported wrong framing of issue. They knew that their plea for joint possession had been denied. They were, therefore, not misled. They were not prevented from adducing evidence in support of their plea.

27. Article 65 of the Limitation Act, 1963, therefore, would in a case of this nature have its role to play, if not from 1953, but at least from 1968. If that be so, the finding of the High Court that the respondent perfected his title by adverse possession and ouster cannot be said to be vitiated in law.

28. Mr. Das has relied upon a decision of this Court in Saroop Singh v. Banto and Others, 2005(4) RCR(Civil) 599 (SC) : [(2005) 8 SCC 330], in which one of us was a member. There is no dispute in regard to the proposition of law laid down therein that it was for the plaintiff to prove acquisition of title by adverse possession.

29. We are also not oblivious of a recent decision of this Court in Govindammal v. R. Perumal Chettiar & Ors., 2007(3) R.C.R.(Civil) 569 : 2007(4) R.A.J. 102 : [2006(11) SCALE 452] wherein it was held :

“…In order to oust by way of adverse possession, one has to lead definite evidence to show that to the hostile interest of the party that a person is holding possession and how that can be proved will depend on facts of each case…”
30. Yet again in T. Anjanappa and Others v. Somalingappa and Another, 2007(1) RCR(Civil) 19 : 2006(2) RCR(Rent) 593 : 2007(1) R.A.J. 257 (SC) : [(2006) 7 SCC 570], it was held :

“12. The concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial of the title of the true owner.

Possession to be adverse must be possession by a person who does not acknowledge the other’s rights but denies them. The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of the owner’s right excluded him from the enjoyment of his property.”
31. In this case, however, a finding of fact has been arrived at by all the three courts. They have analysed the evidences on record. They have taken into consideration the correct legal position operating in the field as also conduct of the parties. They, in our opinion, applied the correct principles of law as regards ‘burden of proof’.

32. We, having regard to the peculiar fact obtaining in the case, are of the opinion that the plaintiff-respondent had established that he acquired title by ousting the defendants-appellants by declaring hostile title in himself which was to the knowledge of his co-sharers.

We, therefore, find no infirmity in the impugned judgment. The appeal is dismissed. In the facts and circumstances of the case, there shall, however, be no order as to costs.

Appeal dismissed.

Important judgments on co-sharer’s right of pre-emption  are:-

Bhikha Ram v. Ram Sarup, (SC) 1992 AIR (SC) 207

Right of pre-emption

SUPREME COURT OF INDIA

JUDGMENT
Ahmadi, J. – Delay condoned. Special leave granted.

2. The constitutional validity of Section 15(1)(a) of the Punjab Pre-emption Act, 1913 was challenged on the ground that it offended the fundamental right guaranteed by Article 19(1)(f) in Ram Sarup v. Munshi, 1963(3) SCR 858. A Constitution Bench of this Court upheld the validity holding that there was no infringement of Article -19(1)(f) of the Constitution. Thereafter, a host of writ petitions were filed in this Court under Article 32 of the Constitution challenging the constitutional validity of Section 15 on the ground that it infringed Articles 14 and 15 of the Constitution. It may be mentioned that the mother State, the State of Punjab, had repealed the Act in 1973 but it continued to be in force in the State of Haryana which prior to 1966 was a part of the State of Punjab. Section 15 of the 1913 Act, as it originally stood, underwent substantial changes in 1960 and as amended read as under :

“15. Persons in whom right of pre-emption vests in respect of sales of agricultural land and village immovable property-

(1) The right of pre-emption in respect of agricultural land and village immovable property shall vest-

(a) where the sale is by a sole owner-

First, in the son or daughter or son’s son or daughter’s son of the vendor;

Secondly, in the brother or brother’s son of the vendor;

Thirdly, in the father’s brother or father’s brother’s son of the vendor;

Fourthly, in the tenant who holds under tenancy of the vendor the land or property sold or a part thereof;

(b) where the sale is of a share out of joint land or property and is not made by all the co-sharers jointly-

First, in the sons or daughters or sons’ or daughters’ sons of the vendor or vendors;

Secondly, in the brothers or brother’s sons of the vendor or vendors;

Thirdly, in the father’s brother or father’s brother’s sons of the vendor or vendors;

Fourthly, in the other co-sharers;

Fifthly, the tenants who hold under tenancy of the vendor or vendors the land or property sold or a part thereof;

(c) where the sale is of land or property owned jointly and is made by all the cosharers jointly-

First, in the sons or daughters or sons’sons or daughters’ sons of the vendors;

Secondly, in the brothers or brother’s sons of the vendors;

Thirdly, in the father’s brothers or father’s brother’s sons of the vendors;

Fourthly, in the tenants, who hold under tenancy of the vendors or any one of them the land or property sold or a part thereof.

(2) Not with standing anything contained in sub-section (1) :(a) where the sale is by a female of land or property to which she has succeeded through her father or brother or the sale in respect of such land or property is by the son or daughter of such female after inheritance, the right of pre-emption shall vest :

(i) if the sale is by such female, in her brother or brother’s son;

(ii) if the sale is by the son or daughter of such female, in the mother’s brothers or the mother’s brother’s sons of the vendor or vendors;

(b) where the sale is by a female of land or property to which she has succeeded through her husband, or through her son in case the son has inherited the land or property sold from his father, the right of pre-emption shall vest-

First, in the son or daughter of such husband of the female;

Secondly, in the husband’s brother or husband’s brother’s son of such female.”
This Court in Atam Prakash v. State of Haryana, 1987 RRR 116 : 1986(2) SCC 249, held that the right of pre-emption given to co-sharers as well as to a tenant can be justified as they constitute a class by themselves. This Court, therefore, upheld the constitutional validity of clause ‘fourthly’ of Section 15(1)(a). Clauses ‘fourthly’ and ‘fifthly’ of Section 15(1)(b) and clause ‘fourthly’ of Section 15(1)(c) as valid and not infringing Article 14 or 15 of the Constitution. This Court, however, did not find any justification for the classification contained in Section 15 which conferred a right of pre-emption on the kinsfolk. The right of pre-emption based on consanguinity was held to be a relic of the feudal past totally inconsistent with the constitutional philosophy and scheme. It also found the list of kinsfolk entitled to preemption as intrinsically defective and self contradictory. Finding no reasonable classification it struck down clauses ‘first’, ‘secondly’ and ‘thirdly’ of Section 15(1)(a).Clauses ‘first’, ‘secondly’ and ‘thirdly’ of Section 15(1)(b) and clauses ‘first’, ‘secondly’ and ‘thirdly’of Section 15(1)(c) and the entire Section 15(2) as ultra vires the Constitution. The right of pre-emption in regard to a cosharer was upheld on the consideration that if an outsider is introduced as a co-sharer in a property it will make common management extremely difficult and destroy the benefits of ownership in common. The right of preemption vested in a tenant was sustained on the ground that land reform legislations in regard to the tiller of the soil to obtain proprietary right in the soil with a view to ensuring his continuance in possession of the land and consequently of his livelihood without threat or disturbance from the superior proprietor. The right of pre-emption granted to a tenant was taken as another instance of a legislation aimed at protecting the tenant’s interest in the land. Holding that the co-sharers and the tenants constituted a distinct class by themselves, the right of preemption conferred on them was upheld as reasonable and in public interest. In taking this view strong reliance was placed on the ratio of the decision of this Court in Bhau Ram v. B. Baijnath Singh, 1962 Suppl SCR 724, wherein the vires of a provision of the Rewa State Pre-emption Act which conferred a right of pre-emption based on vicinage and the right of pre-emption conferred on co-sharers and the Punjab Pre-emption Act, 1913 were challenged on the ground of infraction of Article 19(1)(f) of the Constitution. In that case it was held that a right of pre-emption by vicinage offended Article 19(1)(f) of the Constitution but a similar right conferred on co-sharers was intra vires Article 19(1)(f) of the Constitution. In that case also this Court held that the right of pre-emption vested in co-sharers was a reasonable restriction on the right to hold, acquire or dispose of property conferred by Article 19(1)(f) of the Constitution. In Atam Prakash’s case, this Court, therefore, held that what was said about the right of preemption granted to co-sharers in relation to Article 19(1)(f) of the Constitution applied with equal force to justify the classification in relation to Articles 14 and 15 of the Constitution.

3. After the surgery, Section 15 underwent at the hands of this Court removing the offending parts in Atam Prakash’s case (AIR 1986 Supreme Court 859) what survives of Section 15 is that in the case of sale of agricultural land and village immovable property by a sole owner, the tenant alone can exercise the right of preemption. Where the sale is of a share out of joint land or property, and is not made by all the co-sharers jointly, only the other co-sharers and the tenants can exercise the right of pre-emption. Where the sale is of a land or property owned jointly and is made by all the cosharers jointly, the right to pre-empt survives to the tenants only. Since in the present case, we are concerned with sale by a single co-sharer and not by all the co-sharers jointly, the remaining part of Section 15(1)(b), with which we are concerned, reads as under :

“15(b). Persons in whom right of pre-emption vests in respect of sales of agricultural land and village immovable property-

(1) The right of pre-emption in respect of agricultural land and village immovable property shall vest-

(b) where the sale is of a share out of joint land or property and is not made by all the co-sharers jointly

Fourthly, in the other co-sharers;

Fifthly, in the tenants who hold under tenancy of the vendor or vendors the land or property sold or a part thereof.”
Counsel for the appellant submitted that since the suit land belonged to more than one cosharer and had not been sold jointly by all the co-sharers, he, as a co-sharer, was entitled to claim the right of pre-emption under clause ‘fourthly’ of Section 15(1)(b). A similar question came up before this Court in Jagdish v. Nathi Mal Kejriwal, 1987 RRR 65 (SC) : 1986(4) SCC 510, wherein a two-Judge Bench of this Court negatived the contention in the following words (para 3) :

“In order to understand the meaning of the words ‘other co-sharers’ in Section 1 5 (1)(b) we have to read the Act as it stood before the decision in Atam Prakash’s case, AIR 1986 Supreme Court 859 (supra). It is seen that the expression ‘other co-sharers’ in clause ‘Fourthly’ of Section 15(1)(b) of the Act refers to only those co-sharers who do not fall under clause ‘First’ or ‘Secondly’ or ‘Thirdly’ of Section 15(1)(b) of the Act. Since the petitioners admittedly fall either under clause ‘First’ or under clause ‘Secondly’ of Section 15(1) (b) of the Act they are clearly outside the scope of clause ‘Fourthly’. Therefore, the petitioners cannot claim the right of pre-emption under clause ‘Fourthly’. We do not, therefore, find any substance in this contention…..”
In the present case also the appellant seeks to exercise the right of pre-emption as a co-sharer i.e. father’s brother’s son of the vendors. His contention is that he falls within the expression ‘other co-sharers’ in clause ‘Fourthly’ of Section 15(1)(b) and is, therefore, entitled to exercise the right of pre-emption conferrred on him by that provision. The Courts below have negatived this contention solely on the ground that it cannot stand after the pronouncement of this Court in the case of Jagdish (supra). Counsel for the appellant, however, contended that the interpretation placed by the two-Judge Bench on the expression ‘other co-sharers’ in Section 15(1)(b) requires reconsideration as it leads to certain anomalous situation e.g. a sister who is a co-sharer can claim preemption while her brother, cannot or a daughter’s daughter of the vendor can claim pre-emption but not the son.

4. The history of the Punjab Pre-emption law may be kept in mind to understand the purport of clause ‘Fourthly’ of Seetion 15(1)(b) of the Act. Under the Punjab Pre-emption Act, 1905, the corresponding provision, Section 12, conferred a right of pre-emption, in the case of a sale of a share of such land or property held, jointly, firstly, in the lineal descendents of the vendor in male line in order of succession., secondly, co-sharers, if any, who are agnates, in order of succession; thirdly, in the persons described in sub-clause (a) i.e. in persons who but for such sale would be entitled to inherit the property in the event of his or their decease, in order of succession and fourthly, in the co-sharers jointly or severally. It will be noticed that priority for the exercise of the right was statutorily fixed and even in the case of those falling within the same class, the exercise of right was regulated by the use of the expression’in order of succession’. The 1905 Act was repealed and replaced by the 1913 Act, According to Section 15 of this Act before its amendment in 1960, in the case of sale of a share out of joint land or property, the right of pre-emption was conferred firstly on the lineal descendants of the vendor in order of succession; secondly, in the co-sharers, if any, who are agnates, in order of succession; thirdly in persons not included under firstly or secondly above, in order of succession, who but for such sale would be entitled, on death of the vendor, to inherit the land or property sold and fourthly, in the co-sharers. Section 15 after its amendment in 1960 provided that where the sale is of a share out of the joint land or property and is not by all the co-sharers jointly, the right of pre-emption was vested, First, in the sons or daughters or son’s son or daughter’s sons of the vendor or vendors; Secondly, in the brothers or brother’s sons of the vendor or vendors; Thirdly, in the father’s brother or father’s brother’s sons of the vendor or vendors; Fourthly, in the other cosharers and Fifthly in the tenants. Read in the context, it becomes clear that the legislature desired to confer the right of pre-emption on specified family members of the vendor or vendors in the first three clauses of Section 15(1)(b) and with a view to covering all the remaining co-sharers not specifically mentioned in the preceding clauses it used the expression ‘other co-sharers’ in the fourth clause which was meant to serve as a residuary clause to ensure that no co-sharer is left out. Since this Court found certain intrinsic contradictions in the list of relatives covered by the first three clauses, it saw no justification for the classification contained in the said provision conferring a right based on consanguinity and, therefore, struck down those clauses as discriminatory and violative of Articles 14 and 15 of the Constitution. At the same time it upheld the right conferred on co-sharers for reasons stated earlier. Thus the purport of Atam Prakash’s case, (supra) was that while co-sharers were entitled to pre-empt, the conferment of that right on certain kinsfolk based on the rule of consanguinity being a relic of the feudal past could not be tolerated. This Court never intended to exclude any specified co-owners from the scope of clause fourthly of Section 15(1)(b) of the Act. Once conferment of the right of pre-emption in favour of co-sharers was considered to be a reasonable restriction on the right to hold, acquire and dispose of roperty under Article 19(1)(0, the same restriction was held to be valid when tested on the touchstone of Article 14 or 15 of the Constitution. We find it difficult to hold that the purport of this Court’s decision in Atam Prakash’s case was to deny the right of preemption to those relative or relatives of the vendor or vendors who were specified in the erstwhile first three clauses of Section 15(1)(b) even if they happen to be co-sharers. The expression’other co-sharers’was used in the fourth clause of the said provision to ensure that no co-sharer was left out or omitted and not to deny the right to kinsfolk-co-sharers covered by the preceding clauses. If the preceding clauses were not erased from the statute book as unconstitutional the kinsfolk would have exercised the right in the order of preference, for which no justification was found. The relations in the first three clauses of Section 15(1)(b) may or may not be co-sharers. The use of the expression ‘other’ in clause fourthly conveys the possibility of their being cosharer also. What this Court disapproved as offensive to Articles 14 and 15 is the classification based on consanguinity and not on co-ownership. The right of pre-emption to co-sharers is held to be intra vires the Constitution. Therefore, it is difficult to hold that this Court intended to deny the right of pre-emption of those kinsfolk even if they happened to be co-sharers. That would clearly be discriminatory. With respect, therefore, we find it difficult to approve of the interpretation placed on clause ‘fourthly’ of Section 15(1)(b) of the Act by this Court in Jagdish’s case (AIR 1987 Supreme Court 68). We think on a proper construction of that clause after the preceding clauses were held to be unconstitutional the word ‘other’ preceding the word ‘co-sharer’ is rendered redundant. We, therefore, do not approve the ratio of Jagdish’s case and overrule the same.

5. In the result the appeal succeeds. The decision of all the three Courts below dismissing the appellant’s suit is set aside and the suit is decreed. We direct that on the appellant plaintiff depositing the entire amount of sale price together with the amount needed for the stamp duty for the execution of the conveyance in his favour within three months from today, the purchaser-respondent No. 1 shall within one month of such deposit execute a conveyance of the land, i.e. his share therein derived from his vendors, in favour of the appellant and shall deliver possession thereof to the appellant. If the respondent No. 1 fails to do so, the Court shall appoint a Commissioner who shall execute the conveyance on behalf of the respondent No. 1 and the Court shall put the appellant in possession of the suit land. There will be no order as to costs throughout.

Appeal allowed.

Pirthi v. Mohan Singh (SC) 2011 AIR (SC) 3070

Right of pre-emption

SUPREME COURT OF INDIA

JUDGMENT
P. Sathasivam, J. – This appeal is directed against the final judgment and order dated 07.03.2002 passed by the High Court of Punjab and Haryana at Chandigarh in RSA No. 136 of 2001 whereby the High Court dismissed the appeal filed by the appellant herein.

2. Brief facts :

(a) The appellant-plaintiff and respondent No. 5 – whose name has been deleted from the array of parties by this Court’s order dated 08.08.2003, filed a suit for possession by way of pre-emption being Civil Suit No. 107/92/93 against respondent Nos. 1-4 herein (Defendants) before the Civil Judge (Jr. Division), Bahadurgarh, Haryana claiming themselves to be co- sharers with the vendor – Shiv Lal-defendant No. 3 (respondent No. 3 herein- since deceased, his legal representatives are on record), who sold away his half share of the suit land comprised in Khewat No. 22 (min.), Khasra Nos. 47 and 48, Khasra No. 1043 measuring 3 bighas, 3 biswas pukhta 1058 (2-11) and Khewat No. 28 (min.), Khasra Nos. 54-55. Khasra No. 5496/1693 (2-16) 5497/1693(1-5) total measuring 10 Bighas 8 Biswas to defendant Nos. 1 and 2 (respondent Nos. 1 and 2 herein) by sale deed dated 08.06.1992 for a consideration of Rs. 1,40,000/- and for declaring the lease deed No. 326 dated 07.05.1992 illegal, null and void and unwarranted by law. Defandant Nos. 1 and 2 are brothers and defendant No. 4 (respondent No. 4 herein) is their mother.

(b) When the case was fixed for service of the remaining defendants, defendant Nos. 1 and 4 filed an application for dismissing the suit of the plaintiffs being not maintainable on the ground that after passing of the Punjab Pre-emption (Haryana Amendment) Act, 10 of 1995, (hereinafter referered to as “the Act”) the right of pre-emption on the basis of co-sharership is not available to them. The Civil Judge (Jr. Division), by judgment dated 09.02.1996, accepting the application filed by the defendants dismissed the suit filed by the plaintiffs.

(c) Aggrieved by the said judgment, the plaintiffs filed an appeal being Civil Appeal No. 23 of 1996 before the Additional District Judge, Jhajjar. By order dated 18.07.2000, the Additional District Judge dismissed the appeal filed by the plaintiffs.

(d) Challenging the order passed by the Additional District Judge, Pirthi-plaintiff No. 1 (appellant herein) filed regular second appeal being RSA No. 136 of 2001 before the High Court of Punjab & Haryana at Chandigarh. The High Court, by impugned judgment dated 07.03.2002, holding that the plaintiff/appellant had lost the character of a co-owner during the pendency of the suit, dismissed the appeal. Against the said judgment, the appellant- plaintiff has filed this appeal by way of special leave petition before this Court.
3. Heard Mr. Mahabir Singh, learned senior counsel for the appellant and Mr. Pramod Dayal, learned counsel for respondent Nos. 2 and 4. Despite service of notice, respondent Nos.1 and 3 have not chosen to appear in-person or through counsel.

Discussion :

4. It is the case of the respondents/defendants that superior right of pre- emption on the basis of co-sharership is not available to plaintiffs now. After passing of the Act, this right has been restricted only to the tenants and the plaintiffs have no locus standi to file and pursue their suit as they are not claiming the right as tenants. It is the claim of the appellant/plaintiff that the suit in question was instituted prior to the amendment in the Punjab Pre-emption Act, 1913 hence the amendment in the Act is not applicable to the present case. The trial Court accepted the objection of the defendants as to the maintainability of the suit and dismissed the same as not maintainable which was affirmed by the lower appellate Court. The same view has been reiterated by the High Court by dismissing the second appeal.

5. It is true that the suit, in the present case, was filed prior to the amendment in the Punjab Pre-emption Act, 1913. Section 15 of the Pre-emption law has been amended and notified vide Gazette Notification dated 17.05.1995 which reads as under :

“15. Right of Pre-emption to vest in tenant – The right of pre- emption in respect of sale of agricultural land and village immovable property shall vest in the tenant who holds under tenancy of the vendor/vendors the land or property sold or a part thereof.”
This change in the law affects all pre-emption cases based upon the co- sharership. In view of this change in the law, a co-sharer has no right to bring a suit for possession by way of pre-emption, hence the application filed by the defendants for dismissing the suit of the plaintiffs being not maintainable had been accepted by the trial Court and suit of the plaintiff came to be dismissed. This was affirmed by the lower appellate Court and finally by the High Court which order is under challenge in this appeal.

6. While ordering notice on the special leave petition, even as early as on 02.09.2002, it was specifically mentioned that as to why the case be not decided in the light of a Constitution Bench judgment in Shyam Sunder and Others v. Ram Kumar and Another, 2001(3) R.C.R.(Civil) 754 : (2001)8 SCC 24.

7. In Bhagwan Das (dead) by LRS. and Others v. Chet Ram, 1971(1) SCC 12, a three-Judge Bench of this Court, while considering right of pre-emption has held that pre-emptor’s right should subsist till institution of suit for pre- emption and passing of decree. It was further held that the rule that a pre- emptor must maintain his qualification to pre-empt up to the date of decree was recognised as well settled.

8. In Rikhi Ram and Another v. Ram Kumar and Others, (1975)2 SCC 318, again, a three-Judge Bench of this Court, while considering right of pre-emption under the Punjab Pre-emption Act, 1913, after adverting to the principles laid down in Bhagwan Das (supra) and considering Section 15(1) of the Punjab Pre-emption Act held that under the general law of pre-emption, it is firmly established that the decisive date as regards the right of pre-emptor to pre-empt the sale was the date of the decree. In other words, the pre-emptor who claims the right to pre-empt the sale on the date of the sale must continue to possess that right till the date of the decree. If he loses that right before the passing of the decree, decree for pre-emption cannot be granted even though he may have had such right on the date of the suit.

9. Now, let us consider the decision of the Constitution Bench i.e. Shyam Sunder (supra) and its applicability to the case on hand. Both the above decisions being Bhagwan Das (supra) and Rikhi Ram (supra) were relied on by the Constitution Bench.

10. The very same Haryana Amendment Act, 10 of 1995, which introduced Section 15, was considered by a Constitution Bench in Shyam Sunder (supra). The question posed before the Constitution Bench was :

“What is the effect of substituted Section 15 introduced by the Haryana Amendment Act, 1995 (hereinafter referred to as ‘the amending Act, 1995’) in the parent Act i.e. the Punjab Pre-emption Act (hereinafter referred to as ‘the parent Act’) as applicable to the State of Haryana whereby the right of a co-sharer to pre-empt a sale has been taken away during the pendency of an appeal filed against a judgment of the High Court affirming the decree passed by the trial Court in a pre-emption suit?”
11. When in the case of Shyam Sunder (supra), the main appeal, i.e., Civil Appeal No. 4680 of 1993 came up for hearing before a Bench of this Court, the Bench, on the question of the effect of the amendment made in 1995 in the parent Act, found that there is conflict in the view taken in the decisions of two three-Judge Benches of this Court, which are Didar Singh v. Ishar Singh, (2001)8 SCC 52 wherein it was held that in a suit for pre-emption, the pre- emptor must prove his right to pre-empt up to the date of decree of the first court and any loss of right or subsequent change in law after the date of adjudication of the suit and during pendency of appeal would not affect the decree of the first court and Ramjilal v. Ghisa Ram, 1996(2) R.R.R. 456 : (1996)7 SCC 507 wherein it was laid down that appeal being continuation of the suit, the right to claim pre-emption must be available on the date when the decree is made and is finally to be affirmed or needs to be modified at the time of disposal of the appeal therefrom, and since the amending Act came into force during pendency of appeal, the right and remedy of the plaintiff stood extinguished and as a result the suit must fail. In order to resolve the conflict between the aforesaid two decisions rendered by two different Benches, the Bench referred the appeal for decision by a Bench of five Judges. It is in this way, the matter was heard by the Constitution Bench.

12. The Constitution Bench noted the facts which have given rise to Civil Appeal No. 4680 of 1993. The defendant-appellants herein purchased land measuring 54 kanals, situated in Village Rithal Phogat, being ½ share of the land of Khewat Nos. 204, 205 and 206, measuring 108 kanals for a sum of Rs. 84,000/- from vendors viz. Bharpai, Chhoto and Pyari – daughters of Bhagwana vide sale deed dated 17-07-1985. The plaintiff-respondents herein claimed preferential right to pre-empt the sale in favour of the defendant-appellants on the ground that they are co-sharers by means of a civil suit laid before the Sub-Judge, Ist Class, Gohana. In the said suit, issues were framed and the trial court decided all the issues in favour of the plaintiff-respondents and consequently on 30-5-1990 the suit was decreed. The respondents after passing of the decree by the court of first instance deposited the purchase money as required under Order 20 Rule 14 CPC. The appeal preferred by the appellants before the first appellate court and the second appeal before the High Court were dismissed and the decree of the trial court was affirmed. The appellants thereafter preferred this appeal by way of special leave petition. During pendency of the appeal, Section 15(1)(b) of the parent Act, on the basis of which the suit was filed by the plaintiff- respondents, was amended and was substituted by new Section 15 whereby the right of a co-sharer to pre-empt a sale was taken away. The substituted Section 15 of the Act has been quoted earlier.

13. Since several decisions have been cited, the Constitution Bench categorized those decisions and referred them as first, second and third categories of decisions. The first category of decisions are those wherein the view of law expressed is that in a suit for pre-emption, the pre-emptor must possess his right to pre-empt right from the date of sale till the date of decree of the first court, and loss of that right after the date of decree either by own act, or an act beyond his control or by any subsequent change in legislation which is prospective in operation during pendency of the appeal filed against the decree of the court of first instance would not affect the right of the pre-emptor. The second category of decisions deals with the cases where right of a pre-emptor was taken away after the date of decree of the first court and during pendency of the appeal by statutory enactment which had retroactive operation. In such cases, it was held that the appellate court is competent to take into account legislative changes which are retrospective and accordingly affect the rights of the parties to the litigation. The decisions in the third category of cases are those where it has been held that appeal being a continuation of the suit, the right to pre-empt a sale must be available on the date when the decree is made and is finally to be affirmed or needs to be modified at the time of disposal of appeal and in case of loss of right by legislative changes during pendency of appeal, the suit for pre- emption must fail. After analyzing various decisions referred to in the first category, the Constitution Bench formulated the following legal principles :

“1. The pre-emptor must have the right to pre-empt on the date of sale, on the date of filing of the suit and on the date of passing of the decree by the court of the first instance only.

2. The pre-emptor who claims the right to pre-empt the sale on the date of the sale must prove that such right continued to subsist till the passing of the decree of the first court. If the claimant loses that right or a vendee improves his right equal or above the right of the claimant before the adjudication of suit, the suit for pre-emption must fail.

3. A pre-emptor who has a right to pre-empt a sale on the date of institution of the suit and on the date of passing of decree, the loss of such right subsequent to the decree of the first court would not affect his right or maintainability of the suit for pre-emption.

4. A pre-emptor who after proving his right on the date of sale, on the date of filing the suit and on the date of passing of the decree by the first court, has obtained a decree for pre-emption by the court of first instance, such right cannot be taken away by subsequent legislation during pendency of the appeal filed against the decree unless such legislation has retrospective operation.”
14. The legal position that emerges on review of the second category of decisions is that the appeal being a continuation of the suit, the appellate court is required to give effect to any change in law which has retrospective effect. In para 15, the Constitution Bench has held that the legal principle that emerges out of the aforesaid decisions is that an appeal being a continuation of the suit, the right to pre-empt must be available on the date when the decree is made and is finally to be affirmed or needs to be modified at the time of disposal of the appeal and where right and remedy of the plaintiff has been taken away statutorily during pendency of appeal, the suit must fail.

15. The following discussion and conclusion in para 28 are relevant :

“… ….. In Shanti Devi v. Hukum Chand, (1996)5 SCC 768, this Court had occasion to interpret the substituted Section 15 with which we are concerned and held that on a plain reading of Section 15, it is clear that it has been introduced prospectively and there is no question of such section affecting in any manner the judgment and decree passed in the suit for pre- emption affirmed by the High Court in the second appeal. We are respectfully in agreement with the view expressed in the said decision and hold that the substituted Section 15 in the absence of anything in it to show that it is retrospective, does not affect the right of the parties which accrued to them on the date of the suit or on the date of passing of the decree by the court of first instance. We are also of the view that the present appeals are unaffected by change in law insofar it related to determination of the substantive rights of the parties and the same are required to be decided in the light of the law of pre-emption as it existed on the date of passing of the decree.”
16. After analyzing all the decisions cited therein, the Constitution Bench has concluded thus :

“44. From the aforesaid decisions, the legal principle that emerges is that the function of a declaratory or explanatory Act is to supply an obvious omission or to clear up doubts as to meaning of the previous Act and such an Act comes into effect from the date of passing of the previous Act. Learned counsel for the appellants strongly relied upon a decision of a two- Judge Bench of this Court in Mithilesh Kumari v. Prem Behari Khare in support of his argument. In the said decision, it was held by this Court that the Benami Transactions (Prohibition) Act, 1988 being a declaratory Act, the provisions of Section 4 of the Act have retroactive operation. The reliance on this decision by the appellants’ counsel is totally misplaced as this decision was overruled in R. Rajagopal Reddy v. Padmini Chandrasekharan wherein it was held that the Act was not passed to clear any doubt that existed as to the common law or the meaning of effect of any statute and it was, therefore, not a declaratory Act.

45. We have already quoted substituted Section 15 of the amending Act but do not find that the amending Act either expressly or by necessary implication intended to supply an omission or to clear up a doubt as to the meaning of the previous Section 15 of the parent Act. The previous Section 15 of the parent Act was precise, plain and simple. There was no ambiguity in it. The meaning of the words used in Section 15 of the parent Act was never in doubt and there was no omission in its phraseology which was required to be supplied by the amending Act. Moreover, the amending Act either expressly or by implication was not intended to be retroactive and for that reason we hold that amending Act 10 of 1995 is not a declaratory Act and, therefore, it has no retrospective operation.

46. For the aforestated reasons, we approve the view of law taken in Didar Singh v. Ishar Singh and further hold that the decision in the case of Ramjilal v. Ghisa Ram does not lay down the correct view of law.

47. The result of the aforesaid discussion is that the amending Act being prospective in operation does not affect the rights of the parties to the litigation on the date of adjudication of the pre-emption suit and the appellate court is not required to take into account or give effect to the substituted Section 15 introduced by the amending Act.

48. In view of what has been stated above, these appeals fail and accordingly are dismissed, but there shall be no order as to costs.”
17. From the above discussion, particularly, in para 45, the Constitution Bench observed that the Amending Act 10/1995 is not a declaratory Act and, therefore, it has no retrospective operation. In para 46, the Constitution Bench has approved the view of law taken in Didar Singh (supra) and further held that the decision in the case of Ramjilal (supra) does not lay down the correct view of law. No doubt, in the penultimate para 47, the Constitution Bench has concluded that the amending Act being prospective in operation does not affect the rights of the parties to the litigation on the date of adjudication of the pre-emption suit and the appellate court is not required to take into account or give effect to the substituted Section 15 introduced by the amending Act. It is clear that the appellate court is not required to take into account or give effect to the substituted Section 15 introduced by the amending Act. On the other hand, as discussed and concluded in para 46, the dictum laid down in Didar Singh (supra) has been approved. In Didar Singh (supra), it was held that in a suit for pre-emption, pre-emptor must prove his right to pre-empt up to the date of the decree of the first court and any loss of right or subsequent change in law after the date of adjudication of the suit and pre-tendency of appeal would not affect the decree of the first court. The said view has been approved by the Constitution Bench. In other words, in a suit for pre-emption, the pre-emptor must prove his right to pre- empt up to the date of decree of the first court. To put it clear, the pre- emptor must have the right to pre-empt on the date of sale on the date of filing of the suit and on the date of passing of the decree by the court of the first instance [Emphasis supplied]. In the case on hand, the amendment Act came into force with effect from 17.05.1995 and suit had been laid on 31.10.1992. In other words, on the date of institution of the suit, the plaintiff/pre-emptor had a right to claim “right of pre-emption”. However, during the pendency of the suit, since the amendment Act came into force, deleting the right of pre-emption and in the absence of such right on the date of passing of the decree by the court of first instance, we are of the view that both the courts below have correctly appreciated the effect of the amendment and the High Court also rightly dismissed the second appeal holding that the plaintiff had lost the character of a co-owner during the pendency of the suit by virtue of the amendment Act.

18. In view of the above discussion and the interpretation of the Constitution Bench in respect of substituted Section 15 introduced by the Haryana Amendment Act, 1995 in the Parent Act i.e. the Punjab Pre-emption Act, we concur with the view expressed by all the three courts including the High Court. Consequently, the appeal fails and the same is dismissed. No order as to costs.

Appeal dismissed.

Gautam Paul v. Debi Rani Paul, (SC) 2001 AIR (SC) 61

Right to pre-emption

SUPREME COURT OF INDIA

JUDGMENT
S.N. Variava, J. – Leave granted.

2. This appeal is against in order dated 11th September, 1998 passed by the High Court of Calcutta.

3. Briefly stated the facts are as follows :

One Dr. Jonoranjan Paul was the owner of premises No. 14-C, Sambhu Lane, Calcutta-14. This three-storied building is hereafter referred to as suit property. The said Dr. Jonoranjan Paul had six sons, namely, Satish, Kiron, Biren, Nilratan, Nirmal and Bimol. During his life time the said Jonoranjan Paul had sold the suit property to one Dr. Troilukya Nath Ghosh. After the death of Dr. Troilukya Nath Ghosh the suit property went to his heirs. The heirs executed a Gift Deed dated 2nd June, 1947. By this they gifted the suit property to Nilratan Paul, Nirode Baran Paul and Bimol Chandra Paul. As stated above, Nilratan Paul and Bimol Chandra Paul were two sons of Jonoranjan Paul. Nirode Baran Paul was the son of Kiron Chandra Paull.
4. Nilratan Paul’s share went to his son Bejoy Ratan Paul. On 25th February, 1957 Bejoy Ratan Paul sold his share in the property to Nirode Baran Paul. Even though Bijoy Ratan Paul sold his share to Nirode Baran Paul he continued to stay in one room in the premises. By a Deed of Petition executed on 25th June, 1957 Bimol Chandra Paul took property at 14 S.B. Lane. The suit property came to Nirode Baran Paul.

5. Nirode Baran Paul died on 7th February, 1965. On his death his mother Naras Nandini Paul, his wife Debi Rani Paul and his daughter Radha Rani Paul each got a ⅓rd share in the property. The ⅓rd share of mother Naras Nandini Paul went to her sons Banwari Lal Paul, Barld Barin Paul and daughter Bibhuti Paul. They each got a 1/9th share. It is thus that Bibhuti Paul got a 1/9th share in the suit property. The 1/9th share of Banwari Lal Paul went to his son Sujit Paul and three daughters Gita, Chabi and Rubi. They each got a 1/36th share in the suit property.

6. The appellant is the son of Bijoy Ratan Paul. As sated above, even though Bejoy had sold his share to Nirode, he continued to occupy one room in the suit property. After the death of his father Appellant continued to stay in that room. On 3rd December, 1988 appellant purchased the 1/9th share of Bibhuti Paul in the suit property. He then also occupied the room which had earlier been occupied by Bibhuti Paul.

7. Debi Rani Paul and Radha Rani Paul (wife and daughter of Nirode) filed suit No. 4 of 1989 against Bibhuti Paul (defendant No. 1), Gautam Paul (defendant No. 2), Sujit, Gita, Chabi and Rubi (defendants No. 3 to 6 respectively). The suit was for partition of the suit property. In this suit a declaration was also sought that the sale by Bibhabati (Bibhutti ?) Paul in favour of Goutam Pal was illegal and void and not binding on the plaintiffs. In this suit an application was made under Section 4 of the Partition Act. The plaintiffs sought to buy over the share of Bibhuti Paul, which had been sold to Goutam Paul.

8. On 27th August, 1992 the trial Court passed a preliminary decree for partition. It was declared that the plaintiffs had 7/9th share in this property. It also held that Goutam Paul had 1/9th share in the property. The trial Court kept the proceedings under Section 4 of the Partition Act pending, to be decided later on after recording evidence.

9. Being aggrieved, by their application under Section 4 of the Partition Act not having been decided, the plaintiffs (i.e. respondents 1 and 2 herein) filed a First Appeal, which was ultimately numbered as 152 of 1993. This appeal was allowed by the impugned judgment dated 11th September, 1998. By this judgment the preliminary decree for partition has been upheld. It has also been held that respondents 1 and 2 are entitled to pre-empt under Section 4 of the Partition Act. It is held that the appellant (herein) is not a member of the family. It is held that, as the sale is to a person who was not a member of the family, respondent Nos. 1 and 2 were entitled to purchase over the share which had been sold to the appellant.

10. Mr. S.B. Sanyal submitted that Kiron Chandra Paul and Nilratan Paul were two sons of Jonoranjan Paul. He submitted that they belonged to one family. He pointed out that respondents (1 and 2) were the wife and daughter of Nirode Baran Paul (who was the son of Kiron Chandra Paul) whereas the appellant was the grand son of Nilratan Paul. He submitted that Section 4 contemplates a sale to an absolute outsider, who has no connection with the family. He submitted that a sale to a member of the family cannot be pre- empted under Section 4.

11. Mr. Sanyal relied upon the case of Ghantesher Ghosh v. Madan Mohan Ghosh and others reported in 1996(11) S.C.C. 446 : 1997(1) RRR 89 (SC). In this case it has been held that before Section 4 can be invoked the following conditions must be fulfilled viz. :

(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 co-owner 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-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 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 transfer 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.
It is also 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. It is held that the scheme seeks to protect the family members from the onslaught on their peaceful joint family life by stranger-outsider to the family who may be having different outlook and mode of life including food habits and other social and religious customs. It is held that entry of such outsider in the joint family dwelling house is likely to create unnecessary disturbances not germane to the peace and tranquility not only of the occupants of the dwelling house but also of neighbours residing in the locality. It is held that keeping these objects in view the right flowing from Section 4 cannot be restricted in its operation only up to the final decree for partition. It is held that crystallisation of share may take place but separation and partition take place only by actual division by metes and bounds and delivery of possession of respective shares to the respective shareholders. It is held that this can be achieved only at the stage of execution of the final decree. It is held that only after execution, separation and partition the court would become functus officio. It is held that the provisions of Section 4 would, therefore, be available at all stages of the litigation till the litigation reaches its terminus by means of full and final discharge and satisfaction of the final decree for partition. It is held that if a stranger transferee enters the arena of contest at any stage and seeks to get his share separated he can be said to be suing for partition and separate possession within the meaning of Section 4. It has been held that such a transferee may come on the scene prior to the final decree or he may come on the arena of contest even in execution proceedings as a transferee of the decretal right. It is held that in either eventuality it would be said that such a stranger is suing for partition.

12. Mr. Sanyal also relied upon the case of Kshirode Chunder Ghosal v. Saroda Prosad Mitra, reported in XII Calcutta Law Journal 526. In this case it is held :-

“The term “family” is not defined in the partition Act, and we do not think that it would be possible or desirable to frame a comprehensive formula or exhaustive definition to indicate all that is easily understood by the term “family”. As was well observed by Kindersley. V.C. In Green v. Marsden, 1950(1) Drewry 646 : 651(61) E.R. 598, the word “family” is, in itself, a word of a most lose and flexible description. It is, in fact, as Wickens V.C. aid in Burt v. Hellyar, 1872 L.R. 14 Eq. 160, a popular and not a technical expression, and its meeting it often controlled by the context. As is pointed out in the Oxford Dictionary, Vol. IV, page 55, although the term “family” is sometimes used to include those descended or claiming descent from a common ancestor, it has, very often, a much wider import; it is often used to indicate a body of persons formed by those who are merely connected by blood or affinity; it is sometimes used to include even a body of persons who live in the house or under one head. In the case of Wilson v. Cochran, 1869(31) Taxas 677 : 98 Am. Dec. 553, the matter was put clearly and concisely as follows : “The term family embraces a collective body of persons living together in one house or within the curtilage. In legal phrase, this is the generic description of a ‘family’. It embraces a house-hold comprised of parents or children or other relatives or domestic servants, in short, every collective body of persons living together within the same curtilage, 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 acceptance of the word.” The description herein suggested may, perhaps, be deemed, in some respects, too wide. But one thing is, in our opinion, beyond dispute. The word “family”, as used in the Partition Act, both 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 can trace their descent from a common ancestor.”
Mr. Sanyal also relied upon the case of Paluni Dei v. Rathi Mallick and others, reported in AIR 1965 Orissa 111. In this case the question was whether a married daughter, who was residing with her husband at some other place, could be said to be a member of the family. It was held that the word “family” as used in the Partition Act must be given a liberal and comprehensive meaning and should include a group of persons related in blood, who live in one house or under one head or management. It is held that there is nothing in 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. It was held that it is not necessary that the terms “dwelling house” belonging to an undivided family should include a house where a group of persons related by blood live and that it was not necessary that they should descend from a common ancestor or should constantly reside in the dwelling house or that they should be joint in mess so long as the members of the family have not abandoned their intention to reside in it.

13. Relying on the above authorities Mr. Sanyal submitted that the common ancestor was Jonoranjan Paul. He submitted that from the beginning the appellant has been residing in the suit property alongwith his father Bejoy Ratan Paul. He submitted that the appellant was residing in the suit property as a member of the family. He submitted that respondent Nos. 1 and 2 were also members of the same family. He submitted that under these circumstances it could not be said that the appellant was a stranger or outsider. He submitted that, therefore, the High Court was wrong in holding that the appellant was not a member of the family. He submitted that the impugned judgment was required to be set aside on this ground.

14. Mr. Sanyal further submitted that in any event appellant had at no stage “sued for partition”. He submitted that as the appellant had not sued for partition Section 4 could not be invoked. He submitted that, even on this count, the High Court was wrong in allowing the plaintiff to pre-empt by purchasing the share of the appellant.

15. As against this Mr. Gupta submitted that Section 4 can be invoked if a share in the dwelling house belonging to an undivided family has been transferred to a person who is not a member of such family. He submitted that admittedly this dwelling house belonged to members of the family of Nirode Baran Paul. He submitted that it was admitted that Bejoy Ratan Paul had sold his share to Nirode Baran Paul. He submitted that a sale to a person who was not a member of the family of Nirode Baran Paul would be a sale to a person who was not a member of such family. He submitted that Section 4 would thus become applicable. He submitted that the High Court had correctly held that the appellant could not be considered a member of such family.

16. Mr. Gupta admitted that the appellant had not filed any suit for partition. He submitted that it was not necessary that the outsider or a stranger should actually file a suit for partition. He submitted that in any suit for partition, whether filed by the outsider or by a member of the family, there would be partition and then a division by metes and bounds. He submitted that each sharer would become entitled to receive possession of his share. He submitted that in a suit for partition, the position of all parties is inter-changeable. He submitted that a separate allotment can be claimed by any party irrespective of whether he was plaintiff or defendant. He submitted that if a stranger is a defendant, in a suit for partition, then irrespective of whether he asks for a separate allotment or not, any co-sharer can claim a right for pre-emption under Section 4 of the Partition Act.

17. In support of his submission he relied upon the authority of Special Bench of the Calcutta High Court in Siba Parsad Bhattacharyya and others v. Bibhuti Bhusan Bhattacharjee and another, reported in AIR 1989 Calcutta 35 : 1989(1) RRR 269 (Calcutta)(Special Bench). He points out that this authority has upheld the consistent view of the Calcutta High Court. In this case it has been held that Section 4 must be liberally construed in favour of the co-sharers of an undivided family dwelling house. It has been held that the co-sharer has a right to buy the share of the stranger irrespective of the fact that the stranger is a plaintiff or a defendant. It has been held that in a partition suit the parties are interchangeable. It is held that in a suit for partition it makes no difference whether a party is plaintiff or defendant. It is held that a party, whether a plaintiff or defendant, can claim a share in the dwelling house. It has been held that the expression “to sue” would include not only “to prosecute” but also “to defend”. It is also held as follows :

“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 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 pre- emption under Section 4 is rejected on the ground that the defendant has not asked for separate allotment, the defendant could ask for separate allotment. In this way if the view of Netai Dass’s case be accepted great injustice will be caused to the co-sharer of an undivided family dwelling house.”
It must be mentioned that in the above mentioned case it was noted that a similar view was also taken in the cases reported in AIR 1937 Nagpur 4, Abinash Chandra Chakraverty v. Kamla Devi, AIR 1950 Patna 317 and Alekha Mantri v. Jagabandhu Mantri, AIR 1971 Orissa 127(supra). It was also noted that a contrary view has been taken in the cases Sakhawat Ali v. Ali Husain, reported in AIR 1957 Allahabad 356, AIR 1922 Bombay 121 and Sri Muthangi Butchi Ramayya v. Gurrala Venkata Subbarao, AIR 1950 Madras 214.

18. Mr. Gupta submitted that the Calcutta High Court has consistently taken this view. He points out that the impugned judgment is by the Calcutta High Court. He submitted that it thus could not be said that there was any error in the judgment.

19. Mr. Gupta also relied upon the Ghantesher Ghosh case (supra). He submitted that this case also lays down that Section 4 operates at all stages of the litigation even up to the execution proceedings. He submitted that in Ghantesher Ghosh’s case a decree had already been passed. Thereafter a stranger purchaser applied for execution of that decree. He points out that this Court held that even though it was in execution the provisions of Section 4 would apply. He submitted that in every partition suit there is bound to be a division of the property by metes and bounds and a separation of the shares. He submitted that the object of Section 4 is to ensure that no outsider comes to a dwelling house even though the outsider is merely a defendant in the suit. He submitted that if a contrary view is taken then on a parition the outsider is bound to get a share and take possession of that share. He submitted that that would defeat the laudable object of Section 4. He submitted that object would be achieved only if the other co-sharers are entitled to pre-empt and purchase over the share of the stranger, so long as the stranger is a party to the suit for partition.

20. We have heard the parties and considered the rival submissions. In this appeal the main questions which arise for consideration are :

(a) Whether the appellant could be said to be a member of the family within the meaning of Section 4 of the Partition Act ? and

(b) Whether in the absence of the transferee suing for partition a shareholder can invoke Section 4 and buy over such share ?
Fro a consideration of these questions it would be appropriate to set out, at this stage, Section 4 of the Partition Act. Section 4 reads as follows :

“4. Partition suit by transfer of share in dwelling house. – (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 shareholder 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 shareholder, and may give all necessary and proper directions in that behalf.

(Emphasis supplied)

(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 (2) of the last foreging section.”
A mere perusal of this Section shows that for its applicability the conditions as set out in Ghantesher Ghosh case (supra) have to be fulfilled.

21. Let us now consider whether the sale to the appellant by Bibhuti Paul can be said to be a sale to an outsider or a stranger to the family. Undoubtedly, Section 4 should be given a liberal interpretation. However giving a liberal interpretation does not mean that the wordings of the Section and the clear interpretation thereof be ignored. The relevant wordings are “dwelling-house belonging to an undivided family”. The further requirement is that the transfer must be to a person who is not a member of “such family”. The word “such family” necessarily refers to the undivided family to whom the dwelling house belongs. In this case the undivided family is not the undivided family of Jonoranjan Paul. Admittedly the undivided family which owns the dwellings house is the undivided family of Nirode Baran Paul. It is not appellant’s case that he is a member of the undivided family of Nirode Baran Paul. In the cases relied upon by Mr. Sanyal the persons concerned were members of the family to whom the dwelling house belonged. In this case the appellant, not being a member of the family of Nirode Baran Paul cannot be said to be a member of the undivided family to whom the dwelling house belongs. Merely because he is related by blood through a common ancestor i.e. Jonoranjan Paul does not make him a member of the family within the meaning of the term as used in Section 4. To that extent the High Court was right in coming to the conclusion that the sale was not to a member of the family.

22. The next question is whether it can be said that the appellant had sued for partition. Undoubtedly the decisions of the Calcutta High Court in Bhattacharyya case (supra) and the cases reported in AIR 1937 Nagpur 4, AIR 1950 Patna 37 and AIR 1971 Orissa 127(supra), support the interpretation sought to be placed on Section 4 by Mr. Gupta. However, as noted above there is a conflict of opinion between the various High Courts on this point. The cases reported in AIR 1957 Allahabad 356, AIR 1922 Bombay 121 and AIR 1950 Madras 214 take a contrary view. In our view for reasons set out hereinafter the opinion held by the Calcutta, Patna and Orissa High Courts is not correct and cannot be sustained. It must be mentioned that this Court has in the case of Babu Lal v. Habinoor Khan, reported in 2000(5) SCC 662 already considered the correctness of the view taken in Alekha Mantri v. Jagabandhu Mantri, AIR 1971 Orissa 127. As set out above the Orissa High Court took the same view as the Calcutta High Court. This court held as follows in respect of the view taken by the Orissa High Court :

“If the ratio of the aforesaid decision is held to take the view that a stranger-purchaser who does not move for partition of the joint property against the remaining co-owners either as a plaintiff nor even as successor of the decree-holder seeks execution of the partition decree can still be subjected to Section 4 of the Partition Act proceedings, then the said view would directly conflict with the decision of this Court in Ghantesher Ghosh case and to that extent it must be treated to be overruled.”
23. We are in agreement with this petition.

There is no law which provides that co-sharer must only sell his/her share to another co-sharer. Thus strangers/outsiders can purchase shares even in a dwelling house. Section 44 of the Transfer of Property Act provides that the transferee of a share of 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 against intrusion by an outsider into the dwelling house. The only manner in which an outsider can get possession is to sue for possession and claim separation of his share. In that case Section 4 of the Partition Act comes into play. Except for Section 4 of the Partition Act there is no other law which provides a right to a co-sharer to purchase the share sold to an outsider. Thus before the right of pre-emption, under Section 4, is exercised the conditions laid down therein have to be complied with. As seen above 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 co-sharer to pre-empt 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 Legislature 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 inter- changeable. 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. This could be by way of initiating a proceeding for partition or even claiming partition in execution. However, a mere assertion of a claim to a share without demanding separation and possession (by the outsider) is not enough to give to the other co-sharers a right of pre-emption. There is a difference between a mere assertion that he has a share and a claiming for possession of that share. So long as the stranger/purchaser does not seek actual division and possession, either in the suit or in exception proceedings, it cannot be said that he has sued for partition. The interpretation given by the Calcutta, Patna, Nagpur and Orissa High Courts would result in nullifying the express provisions of Section 4, which only gives a right when the transferee sues for partition. If that interpretation were to be accepted then in all cases, where there has been a sale of a share to an outsider, a co-sharer could simply file a suit for partition and then claim a right to purchase over that share. Thus even though the outsider may have, at no stage, asked for partition and for the delivery of the share to him, he would be forced to sell his share. It would give to a co-sharer a right to pre-empt and purchase whenever he/she so desired by the simple expedient of filing a Suit for Partition. This was not the intent or purpose of Section 4. Thus the view taken by Calcutta, Patna, Nagpur and Orissa High Courts, in the aforementioned cases, cannot be said to be good law.

24. In this case we have seen the written statement and the additional written statement filed by the appellants. We have also seen the evidence given by the appellants. At no stage has the appellant asked for partition or demanded possession of his share. All that he has claimed, which he was bound to and entitled to, is that he has a 1/9th share in the property. Under these circumstances, the High Court was wrong in allowing the respondents to 1 and 2 to exercise a right of pre-emption under Section 4 of the Partition Act. In this case, the condition of a transferee suing for partition had not been fulfilled.

25. In this view of the matter the impugned judgment requires to be and is set aside. The decree of the trial Court dated 27th August, 1992 is restored except that the application under Section 4 shall now stand dismissed as being premature. Respondents No. 1 and 2 are at liberty to apply to the trial Court, if they so desire, for a final decree of partition. We however clarify that if at any stage the appellant applies for partition and for separation and possession of his share respondents No. 1 and 2 and/or any other co-sharer will still be entitled to move under Section 4 of the Partition Act.

The appeal stands disposed of accordingly. There will be no order as to costs.

Order accordingly.

Jinda Ram v. Ram Prakash, (SC) 1995 AIR (SCW) 4505

Punjab Pre-emption Act

SUPREME COURT OF INDIA

JUDGEMENT
Venkataswamy, J. – Leave granted.

2. Heard counsel on both sides.

3. This appeal by special leave is directed against the judgment and order dated 18-3-1992 of the High Court of Punjab and Haryana in RSA No. 2342 of 1981. The question that arises for consideration in this appeal is whether a partition effected during the pendency of the appeal affects the right of a person who admittedly a co-sharer at the time of sale of preemption.

4. Brief facts are the following :

5. The appellants are the legal representatives of one Jinda Ram who was the plaintiff and filed a suit for pre-emption for agricultural land measuring 20 kanals 4 marlas as described in the Plaint Schedule. This right of pre-emption was claimed under Section 15(b) fourthly and fifthly of the Punjab Pre-emption Act, 1913 as a co-sharer and also as a tenant. The suit was contested and the trial Court framed as many as 10 issues and found that the plaintiff was a co-sharerinthe joint khewat of the suit land and his preferential right of pre-emption. The claim of the plaintiff that he was a tenant was also found in favour of the plaintiff. Though the plaintiff claimed that the value of the property was only Rs. 6,000/- as against the sale price shown in the document as Rs. 10,500/-, the trial Court did not agree with this contention of the plaintiff. Notwithstanding the finding in favour of the plaintiff with regard to his right of, preemption, the trial Court granted a partial relief only on the ground that out of 8 vendors, six were females and the right of pre-emption was available to the plaintiff only to the extent of 2 male vendors shares and on that finding granted a decree in favour of the plaintiff.

6. Aggrieved by the decree of the trial Court in not granting full relief, the plaintiff preferred an appeal. The learned Additional District Judge, Karnal reversed the conclusion of the trial Court that the plaintiff was not entitled to the right of pre-emption so far as Shares of female vandors were concerned. However, the lower appellate Court dismissed the suit taking away even the partial relief granted by the trial Court by holding that vendees- defendants after the purchase of the suit land became co-sharers and as such there could be no right of pre-emption against them. Consequently the first appellate Court while dismissing the appeal dismissed the suit as well.

7. Still aggrieved, the plaintiff preferred a second appeal to the High Court. The learned single Judge while setting aside the reasoning of the lower appellate Court as mentioned above observed as follows :

“That finding of the lower appellate Court that vendees have become co-sharers by the impugned sale and so the plaintiff has no statutory right of pre-emption is palpably wrong and legally unsustainable.
Having held so, the learned Judge gave another reasoning for dismissing the second appeal. It was contended before the learned single Judge that the pre-emptor has to maintain his qualification at all the three stages, namely, (a) at the time of sale, (b) at the time of institution of suit and (c) at the time of decree. It was further pointed out before the learned single Judge that during the pendency of the appeal, the suit lands were partitioned and in view of the changed position, the claim of the plaintiff that he continues to be co-sharer in the joint holding was without any merit. This contention was accepted by the High Court and consequently, the appeal was dismissed. Hence, the present appeal by special leave.

8. The learned counsel appearing for the appellants (legal representatives of plaintiff) submitted that the view taken by the learned single Judge that notwithstanding the admitted position that plaintiff was a co-sharer at the time of sale, at the time of filing of the suit for pre-emption and also at the time of passing of the decree by the trial Court, the plaintiff would lose his right of pre-emption if there is a partition during the pendency of the appeal cannot at all be sustained. He submitted that if such a contention is accepted, no decree for pre-emption can successfully be obtained. He also invited our attention to Section 21 (A) of the Punjab Pre-Emption Act, 1913. His further contention was that in any event that the plaintiff’t;s claim for the right of pre-emption in his status as a tenant could not be defeated.

9. We find substance in the argument of the learned counsel for the appellant and we are of the view that the learned Judge was not right in holding that the plaintiff would lose his right of pre-emption on account of a partition that had taken place pending appeal even though the right of the plaintiff as a co-sharer to preempt was established in the trial Court and not challenged by the Vendees-defendants. The relevant period to exercise the right of pre-emption is the period when the sale was effected and when the suit was filed claiming that right. In this view of the matter, the judgment and order of the learned single Judge cannot be sustained and accordingly, it is set aside. The appellants are entitled to a decree as prayed for regarding their right of pre-emption.

10. So far as the valuation of the land is concerned, though the trial Court fixed it as Rs. 11,667.50, the lower appellate Court at the instance of the plaintiff on appeal has fixed the sale of consideration at Rs. 7,200/- plus stamp, registration and execution charges as fixed in the decree of the trial Court. The appellants will deposit the amount as determined by the first appellate Court in the trial Court within two months from this date.

11. The appeal is allowed accordingly. No costs.

Appeal allowed.

Babulal v. Habibnoor Khan (dead) by LRs., (SC) 2000(5) SCC 662

Right of Pre-emption

SUPREME COURT OF INDIA

ORDER
S.B. Majmudar, J. – The short question posed for our consideration in this appeal on grant of special leave under Article 136 of the Constitution of India is as to 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 petition suit, was maintainable in law.

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

3. Respondent No. 1 had brought a suit for partition and separate possession of his ¼th share in a dwelling house situated at Indore in the State of Madhya Pradesh. The said dwelling house consisted of two portions belonging to an undivided family. One portion out of the two portions of the house had been sold to non-applicant No. 3 before the High Court Babu Rao 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 respondent No. 1 was dismissed by the Trial Court, but, in appeal a preliminary decree was passed for partition and separate possession of plaintiff-respondent No. 1’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 preliminary decree came to be passed on 5th September, 1967. On 6th May, 1968 respondent No. 1-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 required to be passed. In the meantime, the Commissioner submitted his report along with the site plans recommending the partition of the dwelling house.

4. 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 at that 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 the other defendant Afzalnoor Khan. The said application was contested by the appellant by submitting that it was not maintainable. The learned Trial Judge accepted the 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, Civil Procedure Code, 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 conclusion the learned Judge of the High Court relied on a decision of the Orissa High Court in the case of Alekha Mantri v. Jagabandhu Mantri & others, 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 manner as he may think fit and proceed to deal with the matter as laid down in Section 4 of the Act.

5. It is this decision of the High Court which has been challenged in the present appeal on grant of special leave, as noted earlier.

6. Learned senior counsel for the appellant vehemently contended that on the express language of Section 4 of the Act, the application moved by the decree-holder respondent No. 1 was not maintainable. Section 4 of the Act reads as under :

“4. Partition suit by transferee of share in dwelling-house. – (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 shareholder 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 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 (2) of the last foregoing section.”
7. It was submitted by Shri Gambhir, learned senior counsel for the 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 moves 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 even at the stage of execution of the final decree. He submitted that as the property has already stood partitioned from 1974 onwards and the Commissioner’s report was not objected to by respondent No. 1, his application was not maintainable even on that ground.

8. The aforesaid contention of Shri Gambhir is well sustained in view of a decision of this Court in the case of Ghantesher Ghosh v. Madan Mohan Ghosh and others, 1996(11) SCC 446 : 1997(1) RCR (Civil) 89 (SC). 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 :

“(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 co-owner 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-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 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.”
9. 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 ⅓rd 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.

10. 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 him by the co-owner concerned. 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, 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. 1- decree 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 any application for separating his share from the dwelling house, either at the stage of preliminary decree or final decree or even thereafter in execution proceedings.

11. Only on this short ground, therefore, the application under Section 4 of the Partition Act has to be treated as to maintainable as held by the Trial Court. The decision of the Orissa High Court in Alekha Mantri’s case (supra) relied upon by the learned Single Judge also cannot be of any avail in view of the settled legal position discernible from the aforesaid decision of this Court in the case of Ghantesher Ghosh (supra).

12. 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 possession of his undivided share. The question before the Orissa High Court was whether alienee from the co-owner who was already defendant No. 1 could be subjected to proceedings under Section 4 of the Partition Act by the plaintiff. The Court had to examine the question whether the person who had brought the suit for partition was himself not the stranger purchaser 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 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 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 partition suit even defendants are as good as plaintiffs and the Court has to ascertain their respective shares in the joint property and subsequently has to separate them by metes and bounds. This decision obviously cannot apply to the facts of the present case where the alienating stranger purchaser of undivided interest of a co-owner in the suit house was neither plaintiff nor defendant in the suit. The Trial Court in the present case has clearly noted that the transferee Kundanbai or Babu Lal were not parties to the suit. Consequently, it could not be said that the transferee stranger purchaser of co-owner’s 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 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 partition decree, can still be subjected to Section 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.

13. 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. 1-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.

Appeal allowed.