Judgment:
P.K. Samanta, J.
1. This is an appeal by the plaintiffs against a judgment and preliminary decree passed in a partition suit. The subject matter of the Instant partition suit is the premises No. 14C, Sambhubabu Lane, Calcutta 14 which is a three storied building comprising a total area more or less 1 cottah 9 chitaks 11 sq. ft. In this appeal respective shares of the parties as declared by the trial court have not been disputed. It has been declared that the plaintiffs are the owners of 7/9th share, the defendant Nos. 3 to 6 have 1/9th share jointly and the defendant No. 2 is the owner of 1/9th share in the suit premises.
2. The facts relevant for the present purpose are as follows :--
The common ancestor of the parties was one Dr. Jono Ranjan Paul. He died leaving behind his six sons namely Satlsh Chandra Paul, Kiron Chandra Paul, Biren Paul, Nilratan Paul, Nirmal Paul and Bimal Chandra Paul. Said Kiron Chandra Paul died leaving behind his three sons namely Banwarilal Paul, Barid Baran Paul and Nirode Baran Paul, one daughter Sm. Bldhabatl Paul and his widow Naresh Nandlni Paul. Said Nllratan Paul died leaving behind his son Bijoy Ratan Paul and the defendant No. 2, Coutam Paul is the son of Bejoy Ratan Paul. The plaintiffs are the heirs and legal representatives of Nirode Baran Paul. Thus, Nllratan Paul and Kiron Chandra Paul are two brothers and the plaintiffs are the lineal descendants of Kiron Chandra Paul whereas the defendant No. 2 is the lineal descendant of Nilratan Paul. It is not disputed that Nllratan Paul had 1/3rd share in the suit premises and on his death his son Bejoy Ratan Paul sold his undivided share in the aforesaid suit premises to Nirode Baran Paul, the predecessor-in-interest of the plaintiff. However, it is the case of the defendant No. 2 that his father though sold his 1/3rd share in the aforesaid premises but retained possession of one room. It was also proved in evidence that by registered deed of partition dated 25.6.58 the aforesaid suit premises came to the share of Nirode Baran Paul, the predecessor-in-interest of the plaintiffs subject to the possession of Bejoy Ratan Paul in one room as above and the right of residence of the deceased defendant No. 1 namely Sm. Blbhabatl Paul, sister of Nirode Baran Paul. Admittedly, Smt. Blbhabatl Paul, since deceased who was a co-sharer along with Nirode Baran Paul sold her share in the aforesaid premises to Gautom Paul the defendant No. 2 who again admitted in his deposition that his claim for 1/9th share in the suit premises is not based upon as an heir to his father Bejoy Ratan Paul but by virtue of his purchase of the share of said Sm. Blbhabatl Paul the deceased defendant No.1.
3. In these facts and circumstances an application under section 4 of the Partition Act was filed by the plaintiffs for purchasing the share of said Goutam Paul who acquired the same by virtue of purchase from the defendant No. 1 namely Smt. Bidhaboti Paul in the suit premises No. 14C, Sambhubabu Lane, Calcutta.
4. The learned trial Judge upon consideration of all facts and circumstances of this case, the materials on records and the evidences of the respective parties decreed the suit in preliminary from by declaring plaintiffs' interests to the extent of 7/9lh share in the suit premises but left the said application under section 4 of the Partition Act to be decided at later stage by recording the evidences of the parties with the finding that it cannot be held that the defendant No. 2 is a stranger purchaser to the plaintiffs Paul family.
5. It has been contended on behalf of the plaintiffs/appellants that 14C, Sambhubabu Lane, Calcutta is the only subject matter of the Instant partition suit which by virtue of previous partition and allotment fell in the exclusive share of Nirode Baran Paul, the predecessor-ni-interest of the plaintiffs and in view of admitted fact that the defendant No. 2 namely Goutam Paul is not a lineal descendant of said Nirode Baran Paul, the plaintiffs are entitled to presempt the purchase made by said Goutam Paul in respect of the share transferred in his favour by one of the co-shares of Nirode Baran Paul Namely Smt. Bidhabatl Paul because the suit premises is an undivided family dwelling house of the plaintiffs.
6. The defendant No. 2 supported the judgment and decree of the learned trial court upon contentions that since the lineal descent of the defendant No. 2 could be traced from the common ancestor of the parties namely Dr. Jonoranjan Paul so he is also a family member and as such is not a stranger to the Paul family and the defendant No. 2 having not asked for partition of the suit premises by filing any suit upon his purchase the plaintiffs are not entitled to pre-empt his purchase in view of section 4 of the Partition Act.
7. It was further contended that in a preliminary decree passed in a mortgage suit against the plaintiffs, the aforesaid suit premises was put up for auction sale by the plaintiffs but ultimately the decretal dues having been paid by them the suit premises was not auctioned. Therefore, the plaintiffs are estopped from claiming the suit premises as their undivided family dwelling house as it was allowed to be put up for auction sale, thus making evident that the same was not Intended to be utilised as their family dwelling house.
8. Special Bench of this court in a decision reported in : (1988)1CALLT204(HC) , (Sib Prasad Bhattacherjee v. Bibhuti Bhattacherjee & Anrs) held that right of pre-emption of co-sharers is available to the co-sharers who filed the suit for partition and stranger purchaser is arranged as defendant and for that purpose it is not necessary that the suit for partition must be by the stranger/purchaser. Thus, the contention that the plaintiffs/appellants are not entitled to pre-empt the purchase made by the defendant No. 2 in a suit for partition filled by them has no legs to stand upon.
9. Now coming to the main point as to weather the defendant No. 2 is a family member of the plaintiffs as because his descent could be tracedfrom a common ancestor, reliance could be placed on Division Bench judgment of this court reported in 12 Calcutta Law Journal 525 (Kshirode Chander Chosal & Anrs. v. Saroda Prasad Mitra), Sir Ashutosh Mokherjee presiding over the Division Bench in the said time tested judgment held that the word 'family' as used in the Partition Act ought to be given liberal and comprehensive meaning and it does Include a group of persons related in blood to live in one house and under one head or management. There is nothing in the partition Act to support 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 descent from a common ancestor. It was further held that the words 'undivided family' must be taken to mean 'undivided qua the dwelling house in question and to be a family which owns the house but has not devlded It'. 'The object of the section is to prevent a transferee from a member of a family, who is an outsider, from forcing his way into a dwelling house, in which other members of the family, to which his transfer belongs, have a right to live. In fact, section 4 of the Partition Act of 1893, is logical sequel to section 44 of the Transfer of Property Act, which provides that where the transferee of a share of a dwelling house belonging to an undivided family is not a member of the family, nothing in the section shall be deemed to entitled him to joint possession or other common or part enjoyment of the house'. The principle laid down in the decision reported in AIR 1941 Patna 4 (Shcodhar Prasad Singh and others v. Kishen Prasad Singh & Others) in substance is that section 4 makes a distinction between members of a family undivided qua the property under partition and transferees who are not members of such family. The word 'such family' in section 4 do not mean the family already referred to in the section without the qualification 'undivided'. It is therefore the consistent views that a family may be separated in mess or may have partitioned all other properties and still may be an undivided family qua a dwelling house so long as the dwelling house is not divided among themselves.
10. In the case in hand it cannot be disputed that the plaintiffs are the fifth descendants while the defendant No.2 is the forth from the common ancestor. Dr. Jonoranjan Paul. Again the plaintiffs descended lineally from Kiron Ch. Paul while the defendant No.2 descended lineally from Nllrantan Paul who are two brothers. Regard may be had to the fact they by virtue of partition amongst the co-sharers on 25.2.57 the suit premises which is a dwelling house fell exclusively in the share of Nirode Baran Paul the predecessor-in-interest of the plaintiff wherein one Sm. Bibhabati Paul, sister of said NIrode Bagan Paul had 1/9th share which was transferred in favour of defendant No.2. It is not the case that even after partition as aforesaid the suit premises remained the dwelling house of the plaintiffs and the defendant No.2. On the other hand, the suit premises does not appear to be the dwelling house of the defendant No.2 and the plaintiffs, except that the defendant No.2 claimed a share therein by virtue of purchase as aforesaid. The assertion that his father retained possession in one room in the suit premises even when by virtue of partition as aforesaid the same fell in exclusive share of NIrode Baran, the predecessor of the plaintiffs, does not make the same the dwelling house of the family of the plaintiffs and the family of the defendant No.2 nor all the members of the respectivefamilies of plaintiffs and defendant No.2 form a family qua the suit premises, a dwelling house. This view cannot be avoided, regard being had to the family system prevalent presently in the society. Lineal descendants of two brothers after two or three generations are unlikely to constitute a family qua a dwelling house which again by partition fell exclusively to a group of descendants of one brother. To constitute such an undivided family qua a dwelling house strong and Impeccable evidence is required that the families even after few descents from separate branches used a particular house for dwelling of all their respective family members Irrespective of any factors whatsoever. Such being not the case here the defendant No.2 alone cannot constitute a family with the plaintiff qua the suit premises as the dwelling house.
11. The decision reported in 54 CWN 660 (Boto Krishna Ghosh v. Akshoy Kr. Ghosh) cited by Mr. Sallendra Bhoshan Bakshl. learned senior Advocate on behalf of the defendant No.2 did not lay down any different proposition. It merely reiterated that 'undivided family' as used in section 4 of the Partition Act means a family not divided qua the dwelling house; the emphasis is 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. This decision therefore does not stand in aid for the defendant No.2.
12. Lastly the contention of the defendant No.2 that since the suit premises was once put up for auction sale in a mortgage suit so the character of the family dwelling house was not intended to be retained by the plaintiffs themselves and accordingly Uiey are estopped from repurchasing cannot also be accepted. There may be various circumstances which may piompt an undivided family to abandone their dwelling house but so long the same is used as dwelling house it retains its character. No amount of Intention will change the position of the dwelling house unless it is not utilised as such. In the case in hand the defendant/respondent failed to establish by any strength of material that the plaintiffs/appellants discontinued to utilise the suit premises as their dwelling house. On the contrary. It is evident that the suit premises was once put up for auction sale pursuant to the decree passed in a mortgage suit but the plaintiffs avoided auction sale of the suit premises by making payment of all decretal dues, which further belles the contention that the plaintiffs Intended not to use the suit premises as their family dwelling house.
13. The decision of the Supreme Court reported in : AIR1991SC1055 (Indira Bai v. Nand Kishore relied upon by Mr. Bakshl in this regard, again lays down different propositions in different set of circumstances.
14. Right of premption was held to be a weak right and it held that estoppel could be a good defence to put where the right of premption is the right of the party alone which is capable of abnegated either in writing or by conduct but it may be difficult to put estoppel as defence where the right of pre-emption Involves as Interest in community or public welfare. The said case arose out of the provisions of Rajasthan Pre-emption Act. In the said case though notice of sale was not given by the seller but the pre-emptor not only came to know of the sale Immediately but he assisted the purchaser in raising construction which went on for five months. The pre-emptor having thus acquiesced in the ownership of the purchaser, somersaultedto grab the property with construction by staking hl3 own claim and attempting to unsettle the legal effect of his own conduct by taking recourse to law. In such a situation the court extended the broad and paramount considerations of equity to avoid injustice. Such is not the case in hand. The defence of estoppel in the facts of the present case is upon pure misconception as the plaintiffs did never give up their right of pre-emption in respect of their dwelling house in favour of any-private party and/or the defendant No.2 at any point of time even when it could have exercised by the plaintiffs against them. Thus, the said decision also does not render any assistance to the defendant/respondent.
15. The learned trial Judge though decreed the suit in a preliminary form but the proceeding arising out of the application under section 4 of the Partition Act as above was deferred for adjudication at a later stage. Since it is held as above, the plaintiffs are entitled to buy the share of the defendant No.2 under section 4 of the Partition Act.
16. Accordingly, the appeal is allowed in part. The judgment and preliminary decree for partition passed by the court of appeal below is upheld with the modification that the plaintiffs are entitled to pre-empt the purchase made by the defendant No.2 of the share in the said family dwelling house from the defendant No. 1 upon determination of the valuation of such share by the learned trial court as per the provisions of section 4 of the said Act. The suit is remanded to the trial court for limited purpose as above and for passing decree therefore. The trial court were dispose of the proceeding as above expeditiously.
The appeal is thus allowed as above and there will be no order as to costs.
S. B. Sinha, J.
17. I agree.
18. Appeal allowed