Judgment:
Arun Kumar, J.
(1) One Smt. Raj Chawla Sahni made a Will dated 13th May, 1984.She died on 5th June,1984. The Will is with respect to various assets of Smt.Sahni. One of the assets subject matter of the Will is property No.N-258, Greater Kailash, Part-1, New Delhi. The property is constructed on a freehold plot of land measuring 880 sq. yards.
(2) The building consists of a two and half storey . structure. The present suit concerns only the ground floor of the said property. The plaintiff and defendant No.2 in the suit are the brothers of Mrs. Sahni while defendant No.1 is her sister. Under the Will the ground floor has been completely and exclusively bequeathed in favor of defendant No.1. The upper half of the house has been bequeathed in favor of a brother of the deceased. Probate proceedings with respect to the said Will are pending in this Court. There is controversy between the plaintiff and defendant No.2 regarding the bequest of the upper portion of the property under the said Will. The basis of. the controversy is that while Mr.N.P.S.Chawla is a Doctor and resides in New Delhi, he has been referred to as Mr.N.P.S.Chawla residing at New York. The plaintiff in the suit is not a Doctor, but has been referred to as Dr.H.P.S.Chawla resident of New Delhi. It was actually the plaintiff who was at the relevant time resident of New York. Be that as it may, admittedly there is no controversy about execution of the Will and about the bequest of the ground floor of the property No.N-258, Greater Kailash, Part-1, New Delhi in favor of defendant No.1. It is this bequest alone which is relevant for purpose of the present suit.
(3) Defendant No.1 entered into an agreement to sell with respect to her portion of the property No.N-258, Greater Kailash, Part-1, New Delhi with defendant No.3. Defendant No.3 bad filed a suit for specific performance of the said agreement in this Court being Suit No.3556 of 1991. On20thDecember,1991 parties arrived at a compromise in the said suit and in pursuance of the compromise, defendant No.1 has to transfer the property to defendant No.3.
(4) The plaintiff has filed the present suit for permanent injunction and recovery of money on the ground that defendant No.1 had orally agreed with him that on plaintiff incurring various expenses on behalf of the defendant No.1 regarding the bequest in her favor under the Will including payment of estate duty and maintenance of the property in suit, the plaintiff will have a right to occupy the ground floor of the property and in the event of the defendant No.1 selling her share Of the property, the plaintiff will have first option to buy he same at the best price available to defendant No.1 at the relevant time. Plaintiff wants to exercise the option as well as claims the amount spent by him on behalf of defendant No.1 with interest. The plaintiff has also set up a case that the property in suit is a family dwelling house and in view of the provisions of Section 4 of the 4 and Section 44 of the Transfer of Property Act the defendant No.1 is liable to be restrained from selling her portion of the property to anyone. Along with the suit plaintiff filed an application under Order 39 Rules 1 & 2 of the Code of Civil Procedure for an ad interim injunction. ' On the said application (I.A.2931 of 1992) an ex parte ad interim injunction was granted on 26th March,1992 to the following effect: In the meanwhile, defendant No.1 is restrained from transfering, alienating, encumbering or parting with possession of ground floor of the property bearing No.N-258, Greater Kailash, Part-1, New Delhi.
(5) The application is being disposed of by this order. The learned counsel for' the plaintiff has for the purposes of this application confined his case only to the provisions of Section 4 of The Partition Act and proviso to Section of the Transfer of Property Act. These provisions are reproduced as under : Section 44 of the Transfer of Property Act: Transfer By One CO-owner: Where one of two or more co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires, as to such share of interest, and so far as is necessary to give effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting, at the date of the transfer, the share or interest so transferred. Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him of joint possession or other common or part enjoyment of the house. Section 4 of The Partition Act, 1893: 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 share-holder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such share-holder and may give all necessary and proper directions in that behalf. (2) If in any case described in sub-section (1) two or more members of the family being such sharer-holders severally undertake to buy such share, the Court shall follow the procedure prescribed by subsection (2) of the last foregoing section.
(6) The submission of the learned counsel for the plaintiff is that property in suit is a family dwelling house and a stranger, defendant No.3 in the present case, cannot be inducted in the property in view of the aforesaid provisions. The concept of family for purposes of these provisions is not the same as of Hindu Undivided Family in the Hindu Law. Here the word 'family' has to be given widest meaning and even if one member of the family may be staying away from the family for long, he or she as the case may be can be treated as fanning a family. According to the learned counsel the object behind Section 4 of The Partition Act is that ownership of a family dwelling house should not go to strangers. In other words, strangers should not be brought to the family fold and property.
(7) This concept is sought to be applied to the facts of the case by highlighting that the land on which the dwelling house is constructed is one. There is no partition of the land nor does the Will says anything about the land. From this, the learned counsel submits that when the land is undivided there could be no partition. Further, it is submitted that the building is constructed in a manner that it is one unit. The foundations of the building starting from the land underneath support the entire building including the ground floor, first floor and the second floor. The walls arc common. thereforee, nothing can be done in the property without participation of both the legatees. Both the portions are thus stated to be dependent on each other. From this the learned counsel for the plaintiff draws the conclusion that the commonality remains. It has never gone. In any case, it is submitted that this required consideration and unless ex-parte interim order is confirmed, third party interests will come into play and the ultimate decision will be rendered academic. Learned counsel for the plaintiff contends that the plaintiff should be given a fair chance to establish his case and till then status-quo regarding the ownership of the property be maintained.
(8) In support of his case, the learned counsel for the plaintiff has relied on various judgments. First judgment cited by him is Chaudhry Mohammed Sulaiman Khan Vs . Mt.AmirJan, : AIR1941All281 . In this judgment, it was observed that the words 'undivided family' in Section 4 of The Partition Act is used in a very wide and general sense and has to be given a liberal meaning. It is not necessary that members of the family should actually be residing in the house nor is it necessary that they should be undivided with regard to the rest of their property. So long as property in question was undivided it was enough to attract the provisions of Section 4 of the Partition Act. Actual residence of all the co-sharers in the house in question was not necessary. So long there is no intention to permanently abandon the right of residence in the property. This case involved two Mahomedan married daughters, one of whom was permanently occupying the house and the other mostly lived with her husband but had not permanently abandoned the intention of occupying the house. There was no partition of the dwelling house.
(9) The second case cited on behalf of the plaintiff is Boto Krishna Ghose Vs . Akhoy Kumar Ghose, : AIR1950Cal111 . In this case also it was held that the essence of the matter is that the house may be undivided. The 'undivided family' means simply a family not divided qua dwelling house, in other words, a family which owns a dwelling house and has not divided it. It does not mean Hindu joint family or even joint family. The members need not be joint in mess. Essence of the matter is that the house itself should be undivided amongst the members of the family who were its owners. The emphasis is really on the undivided character of the house and it is this attribute of the house which imparts to the family its character of an undivided family. For the members of the family may have partitioned all their other joint properties and may have separated in mess and worship, they would still be an. undivided family in relation to the dwelling house so long as they have not divided it amongst themselves.
(10) In Krishna Pillai Vs . Thekke Valia, : AIR1952Mad33 , the relevant observation is that the concept of joint Hindu family as known to Mitakshra Law of the Hindus is not the same as that of undivided family dwelling house in Section 4 of the Partition Act. Here the concept is much wider.
(11) This brings me to yet another judgment cited on he half of the plaintiff i.e. Satyendu Kundu Vs . Amar Nath, : AIR1964Cal52 . In this case also, the Court adverted to the meaning of expression 'dwelling house and undivided family', It was held that Section 4 of The Partition Act should be interpreted liberally. This case contains quotations from various other judgments. An observation of Mr.Justice Ashutosh Mookerjee from a Bench decision in Kshirode Chunder Ghosal v. Saroda Prosad Mitra. 12 Cr.LJ 525 has been quitted which is as under :- 'In our opinion there is no solid foundation for this argument. It was pointed out by a Full Bench of the Allahabad High Court in the case of Sultan Begam v. Ravi Prasad, lLR 30 All 324, that , the word 'undivided family' must be taken to mean 'undivided qua dwelling house in question, and to be a family which owns the house but has not divided it'. Further'....it is sufficient if the members of the. family are undivided 'qua'the dwelling house which they own, that it is the ownership of the dwelling house and not its actual occupation which brings the operation of the section into play, and that the object of the Section is to prevent a transferer of a member of the family who is an outsider from forcing his way into a dwelling house in which other members of his transferer's family have a right to live'.
(12) Then learned counsel for the plaintiff cited Alekha Mantri v. Jagabandhu Mantri, Air 1971 Ori 127 and Bhagirathi Jena Vs . Parsuram Jena, : AIR1985Ori137 . These cases upheld the same concept that the family should be undivided qua the dwelling house in question and for the purpose of Section 4 liberal meaning should be given to the word 'undivided family'.
(13) An important feature of all the aforesaid cases cited on behalf of the plaintiff is that the family was undivided qua the family dwelling house involved in all the cases. This important fact permeates through all these judgments and distinguishes these judgments from the case in hand. As will be seen later, the house in question never enjoyed the status of an undivided house nor could the house be called a family dwelling house in the facts and circumstances of the case.
(14) In reply the learned counsel appearing for the defendants have raised certain preliminary objections, besides submitting that the provisions of Section 4 of The Partition Act or Section 44 of the Transfer of Property Act are not attracted in the facts and circumstances of the case.
(15) First preliminary objection is that the application is malafide because the plaintiff in the present suit had applied for similar injunction against the defendant No. 1 (in the present suit), in the Probate proceedings. The application was dismissed by the learned Single Judge on 24th January,1992. The plaintiff filed an appeal against the said order being FAO(OS)24/92. The said appeal was dismissed on 10th March,1992 and the ex parte interim injunction passed in favor of the plaintiff/appellant in the appeal was vacated. Soon thereafter the present suit was filed on 26th March,1992 and an ex parte interim order was obtained. According to the learned counsel for the defendants, this is an abuse of the process of the Court and the present application is, thereforee, malafide. When the plaintiff failed in the Probate proceedings the present litigation was started.
(16) The second preliminary objection is that the plaint is liable to be rejected for failure of the plaintiff to plead material facts to make out a case under Section 4 of The Partition Act and Section 44 of Transfer of Property Act. It is further submitted that a reference to the plaint rather negates the concept of an undivided family as enunciated by the plaintiff in support of his. case.
(17) On merits it is submitted on behalf of the defendants that the property which is subject matter of the suit; never had the character of undivided family house. Under the grant itself there is a division since separate and independent portions have been bequeathed exclusively to the respective legatees. There was never any jointness because none of the parties previously owned the property. Both of them get the same under a Will. Defendant No.1 is admittedly a resident of U.S.A. and has never resided in the property. Secondly it is submitted that admittedly there is lot of litigation between the parties about the Will itself under which they inherit the same. Apart from this, there are criminal proceedings in which parties arc involved. Holding the property as an undivided family house in these circumstances will be doing injustice to the very object of the provisions involved.
(18) Regarding the first preliminary objection counsel for the plaintiff submitted that in the Probate proceedings his client never sought any relief on the basis of Section 4 of the Partition Act and Section 44 of the Transfer of Property Act. This is a new plea which the plaintiff claims that he is entitled to take in present proceedings. In reply to this, learned counsel appearing on behalf of the defendants has submitted that the principles of 'ought and might' apply and even if this plea was not taken in the earlier proceedings, same will be deemed to have been given up and the plaintiff is barred from taking these pleas now. Since, I have examined the question on merits, I do not consider it necessary to deal with the preliminary objections.
(19) Coming to the merits of the case, the learned counsel for the defendants have argued that in the facts and circumstances of the case, it can not be said that undivided family house ever came into existence and such concept is not at all attracted. On behalf of the defendants, it has been highlighted that the plaint itself shows that the plaintiff and defendant No.1 i.e. the brother and the sister are at arms length and have been in constant litigation with each other - both civil and criminal. The very Will under which they got their respect grants is subject matter of litigation between them. thereforee, according the learned counsel it cannot be said that there ever was any undivided family house. Moreover, it is pointed out that the grants in favor of the respective parties under the Will are of specific and separate portions. thereforee, at the very inception of the right of the parties to the property there is an independent and separate portion falling to their respective shares and the 'jointness' of the family or the concept of undivided family never came into existence.
(20) In this Connection, the learned counsel for the defendants have placed reliance on Sundri Bewa Vs . Ranka Behara and others, : AIR1968Ori134 , Ram Bilas Tewari Vs . Shiv Rani and others, : AIR1977All437 , Bharat Singh v. Rishi Kumar and others, Air 1977 Madhya Pradesh 14 and Dorab Cawasji Warden Vs . Coomi Sorab Warden and ors., : [1990]1SCR332 . Besides citing these judgments the learned counsel has in fact relied on the judgments cited on behalf of the plaintiff to show that all those cases are cases where there, was no division/portion of the dwelling house and, thereforee, it was held that the provisions of Section 4 of The Partition Act and Section 44 of the Transfer of Property Act were attracted. In the present case, since there is partition and those cases rather support the argument that in this situation the provisions of Section 4 of The Partition Act and Section 44 of Transfer of Property Act are not attracted.
(21) In the Dorab Cawasji Warden (Supra), the Supreme Court observed that 'some motion of co-passer property of a Hindu joint family which cannot be quite accurate in considering Section 44; but what is relevant for the purpose of these proceedings was where the dwelling house belonged to an undivided family. Even if the family is divided in status in the sence that they were holding the property in common but undivided qua property i.e. the property had not been divided by metes and bonds it would be within the provisions of Section 44 of the Act. In the absence of a document evidencing partition of the suit house by metes and bounds and on the documentary evidence showing that the property was held by the appellant and his membership in equal undivided shares, it could be said by the plaintiff and appellant has shown a prima-facie case that the dwelling house belonged to an undivided family consisting of himself and his mother. Prima-facie, thereforee, a transfer by the vendee would come within the mischief of the Section 44.' It follows from this that where there is partition of the family dwelling house, the family cannot be said to be undivided family with respect to that house and, thereforee, the provisions of Section 4 of The Partion Act and Section 44 of the Transfer of Property Act are not attracted. Bharat singh (Supra) decided by the Madhya Pradesh High Court takes the same view i.e. the expression 'undivided family' house in Section 4 of the Partition Act means a family not divided qua the dwelling house. It is further observed that the essence of the matter is that the house itself should be undivided among the members of the family who are its owners. The emphasis being on the undivided character of the house. The expression means a family, members of which have not effected a partition of dwelling house belonging to it. Where the members of a family are in joint occupation of a dwelling house and there has been no partion by metes and bounds between the family members, the family would be an undivided family with respect to such house within the meaning of Section 4 of the Partition Act. The other two judgments cited on behalf of the defendants are on the same lines and need no further mention.
(22) The question to which we have to address ourselves is: 1.1s it a family dwelling house and the family is undivided? In other words: Docs it retain the character of an undivided family dwelling house?
(23) Land is common. House is built in a manner that it is one bunglow. The ground floor foundation and walls support the first floor and likewise the First floor supports the second floor. Thus from the construction point of view the building may be one unit. But the bequests in favor of defendant No. I of the ground floor confers exclusive and independent right on the legatee. Similarly, the upper portion goes exclusively and independently to the other legatee. The nature of construction of the building as one unit and the land underneath remaining undivided, cannot lead to the conclusion that it is an undivided family dwelling house. If this is accepted for purpose of attracting Section 4 of the Partition Act, there will be hardly any case where this provision will not apply. What is to be seen is that the house never became an undivided family house.From day one, it was a divided house. thereforee, these things cannot confer the status of a family dwelling house on the property. So far as the land is concerned, the Will does not speak anything about it. Whatever may became interpretation of the Will in this behalf is yet to be seen.
(24) The most important feature of the case is that the property devolved on the two legatees in pursuance of a Will. The Will gave exclusively and independently the respective portions of the property to the respective legatees. thereforee, this property never had the status of any undivided family dwelling house. It further follows from this that we need not consider the question of partition at all. The property was never joint. The Will itself gave separate independent portions to the legatees. There was never any occasion to effect partition nor partition is necessary. The much needed jointness, commonality or family never came about. The point may be examined from another angle. If the bequest was in favor of two strangers, could this argument be pressed in service. Merely because the bequest is in favor of brother and sister this argument has been advanced. In case of bequests being in favor of strangers what will happen to the argument regarding common walls and land underneath being undivided? This common land and wall argument will not stand in such a case. It is just a chance that the grant is in favor of brother and sister. Was the house in question ever a family dwelling house? The answer is no. The bequest cannot convert it into one.
(25) We have to see the object of the provision. The object of the provision is laudable. The idea is to advance the social desire of maintaining family unity. In a house in which members of a family are residing, one co-sharer may not introduce a stranger who may make the life of other members of the family who may be continuing to reside in the house, miserable so as to drive them out of the house. The concept of purdah was very much in vogue at the time these statutory provisions were encted. Now after a hundred years have passed since the Partition Act, 1893, the concept of purdah has become almost extinct. People have started living in flats in multi-storeyed buildings having common walls, ceilings and sharing various common facilities. Such restrictions cannot be applied on transfer of such flats. The whole concept has undergone a sea-change. In the present day social set up this concept ought to be confined to cases where there has been no partition of the family dwelling house. From a strictly legal point of view till there is partition of a property each co-sharer has interest in the entire property which ought to be protected. So where parties have specific shares in a I family dwelling house which is yet to be partitioned, these provisions can be pressed into service.
(26) In view of the above discussion, I am prima-facie of the view that the plaintiff has no case on the basis of Section. 4 of the Partition Act and Section of the Transfer of Property Act. Counsel for the plaintiff totally rested his case for the purpose of the present application on the said provisions. The application is, thereforee, liable to be dismissed. The argument on behalf of the plaintiff that the plaintiff should have a chance to prove his case by leading evidence and he should be protected for a possible event of his success in the litigation, cannot be sustained. On the basis of the facts pleaded in the plaint, it has been prima-facie found that no case for invocation of provisions of Section 4 of the Partition Act and 44 44 of the Transfer of Property Act is made out. thereforee, there is no question of any interim relief being granted to the plaintiff. The plaintiff's application under Order 39 Rules I and 2 of the Code of Civil. Procedure is hereby dismissed. In the circumstances of the case, parties are left to bear their own costs.
(27) I may make it clear that the above is an expression of opinion for purposes of finding a prima-facie case. The same will be subject to final decision of the suit.