Holding

Section 4 of the Partition Act confers a pre‑emptive right on family co‑sharers only when the outsider transferee sues for partition; absent such a suit, the right cannot be exercised.

Summary

The case concerned a residential dwelling house that had been transferred through several generations and eventually a 1/9 share was sold to Gautam Paul, who was not a member of the undivided family that owned the house. Debi Rani Paul and Radha Rani Paul, members of that family, filed a suit for partition and invoked Section 4 of the Partition Act, 1893 to pre‑empt the sale to Gautam Paul. The High Court held that the appellant was an outsider and allowed the family members to purchase his share, but the Supreme Court examined whether the statutory pre‑emptive right could be exercised when the transferee had not sued for partition. The Court held that Section 4 applies only when the outsider actually sues for partition or seeks possession of his share; mere ownership does not trigger the right. It also clarified that the appellant, though related by a common ancestor, was not a member of the specific undivided family to which the dwelling house belonged. Consequently, the Supreme Court set aside the High Court order, restored the trial court decree, and dismissed the application under Section 4 as premature.

Issues considered

Whether the appellant is a member of the undivided family for the purposes of Section 4 of the Partition Act, 1893.
Whether co‑sharers can invoke the pre‑emptive right under Section 4 when the transferee has not sued for partition or sought possession of his share.

Legislation cited

Partition Act, 1893s. 4
Transfer of Property Act, 1882s. 44

Subjects

Partition Actpre‑emptive rightundivided familydwelling housetransfer of sharestranger transfereepartition suitSection 44Transfer of Property Actliberal interpretation

Judgment

GAUTAM PAUL A
v.
DEBI RANI PAUL AND ORS

OCTOBER 17, 2000

[V.N. KHARE AND S.N. VARIA VA, JJ.] B

Partition Act, 1893-Section 4-Right of pre-emption-Exercise of-
Dwelling house belonging to undivided family-Transfer of share to a
stranger-No suit for partition by stranger transferee-Effect of-Held, co- C
sharer family members do not acquire right of pre-emption.

Interpretation of statutes

Liberal interpretation-Grant of-Held, while giving liberal
interpretation the legislative intent and clear wordings of the section should
not be ignored D
Words & Phrases

"Dwelling-house belonging to an undivided family", "such family"-
Meaning of in the context of Section 4 of the Partition Act, 1893.
E
A residential Property was sold by its original owner to a third party.
After the death of the said third party, his heirs gifted the residential property
in favour of three persons two of them being sons and the third being the
grandson of the original owner. The said property was subsequently inherited
by their legal heirs. Appellant, who was one of the legal heirs and continued F
to stay in one room of the suit premises after the death of his father, purchased
l/9th share of another legal heir in the dwelling house. Respondents 1 and 2
who were closely related to the appellant, filed a suit for partition of the
property and for a declaration that sale in favour of appellant was illegal, void
and not binding on them. They also file an application under S.4 of the Partition
Act, 1893 claiming pre-emptive right to purchase the share sold to the G
appellant stranger. Trial Court while passing preliminary decree for partition,
kept the application under S.4 of the Act pending for decision after recording
' evidence. However on appeal, High Court held that appellant was not a member
of the family and responde~ts 1 and 2 were entitled under S.4 of the Act to
pre-empt the sale made in favour of appellant. Hence the present appeal.
733 H
734 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A On behalf of appellant-transferee it was contended that appellant was a
member of the family as he was closely related to respondents through a
common ancestor and therefore S.4 of the Act contemplating sale to an
absolute outsider cannot be invoked; that the appellant had not sued for
partition and therefore sale in his favour cannot be pre-empted under S.4 of
B theAct.

On behalf of respondents 1 and 2 it was contended that share in the
dwelling house belonging to an undivided family of the grand son of the original
owner, was sold to appellant who was not a member of the said undivided family
and therefore S.4 was rightly invoked; that it was not necessary that the
C stranger/outsider should actually file a suit for partition; that in any suit for
partition filed by an outsider or member of family, the position of all parties
was inter changeable and irrespective of whether the stranger/outsider asked
for a separate allotment or not, any co-sharer can claim a right for pr~mption
under S.4 of the Act.

D Disposing of the appeal, the Court

HELD: 1.1. The right to pre-empt purchase by co-sharer under S.4 of
the Partition Act, 1893 cannot be exercised till the stranger/outsider sues
for partition. There is no law which provides that co-sharer must only sell

E
his/her share to another co-sharer. Thus, strangers/outsiders can purchase
shares even in a dwelling house. However, Section 44 of the Transfer of
---
Property Act provides that the transferee of a share of a dwelling house, if
he/she is not a member of that family, gets no right to joint possession or
common enjoyment of the house. The only manner in which an outsider can
get possession is to sue for possession and claim separation of his share.
Thus, before the right of pre-emption, under Section 4, is exercised the
F
condition inter alia laid down therein that the outsider must sue for partition
must be complied with. [744-G, H; 745-A, BJ
1.2. Though S.4 of the Act should be given a liberal interpretation but
giving liberal interpretation does not mean that the wordings of the section
G and the Legislative intent should be ignored. 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." Mere assertion ofa 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. In the instant case, at no stage has the appellant asked
H for partition or demanded possession of his shares. Thus, High Court was
GAUTAM PAUL v. DEBI RANI PAUL [S.N. VARIAVA, J.] 735

-~
not justified in allowing Respondents 1 and 2 to exercise a right of pre-emption A
under S.4 of the Act. [743-F; 745, E, F; 746-C)

2. Appellant-transferee could not be said to be a member of the family

- within the meaning of S.4 of the Partition Act, 1893. The relevant wordings
in the Section are "dwelling house belonging to an undivided family". The
further requirement is that the transfer must be to a person who is not a B
member of"such family". The words "such family" necessarily refers to the

- undivided family to whom the dwelling house belongs. In the instant case, the
undivided family is not the undivided family of the common ancestor but that
.,,. of his grandson. Appellant has not claimed that he is a member of the undivided
family of the latter. Consequently, appellant cannot be said to be a member of c
the undivided family to whom the dwelling house belongs. Merely because he
is related by blood through a common ancestor does not make him a member
of the family within the meaning of the term as used in S.4 of the Act. Thus,
the High Court was justified in holding that the sale was not to a member of
the family. [743-F, G, H; 744-A, BJ
D
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5942 of2000.

From the Judgment and Order dated 11.9.98 of the Calcutta High Court
in F.A. No. 152of1993.

S.B. Sanyal, Atanu Saikia and Avijit Bhattacharjee for the Appellants. E
...... Bhaskar Pd. Gupta, G.S. Chatterjee, Raja Chatterjee, Ms. Aruna Mukherjee
>- and Soumya Ray for the Respondents.

The Judgment of the Court was delivered by
F
S.N. VARIAVA, J. Leave granted.

This Appeal is against an Order dated 11th September, 1998 passed by
the High Court of Calcutta.

Briefly stated the facts are as follows : G
One Dr. Jonoranjan Paul was the owner of premises No. 14-C, Sambhu
Lane, Calcutta-14. This three-storied building is hereinafter referred fo as suit
property. The said Dr. Jonoranjan Paul had six sons, namely, Satish, Kiron,
Biren, Ni\ratan, Nirmal and Bimol. During his life time the said Jonoranjan Paul

- had sold the suit property to one Dr. Trollukya Nath Ghosh. After the death H
736 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A of Dr. Trollukya Nath Ghosh the suit property went to his heirs. The heirs
executed a Gift Deed dated 2nd June, l 94 7. By this they gifted the suit
property to Nilratan Paul, Nitrogen Baran Paul and Bimal Chandra Paul. As
stated above, Nilratan Paul and Bimal Chandra Paul were two sons of Jonoranjan
Paul. Nirode Baran Paul was the son of Kiron Ch;mdra Paul.

B Nilratan Paul's share went to his son Bejoy Ratan Paul. On 25th February,
I 957 Bejoy Ratan Paul sold his share in the property to Nirode Beran Paul.
Even though Bijoy Ratan Paul sold his share to Nirode Baran Paul he continued
to staty in one room in the premises. By a Deed of Partition executed on 25
June, I957 Bimal Chandra Paul took property at I4 S.B. Lane. The suit property
C came to Nirode Baran Paul.

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 l/3 share in the property. The l/3 share of mother Naras Nandini
Paul went to her sons Banwari Lal Paul, Barid Baron .Paul and daughter
D Elbhuti Paul. They each got a I/9th share. It is thus that Bibhuti Paul got a
I/9th share in the suit property. The I/9th share of Banwari Lal Paul went to
his son Sujit Paul and three daughters Gita, Chabi and Rubi, They each got
a l/36th share in the suit property.

The Appellant is the son of Bejoy Ratan Paul. As stated above, even
E 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 I/9th Share
of Bibhurt Paul in the suit property. He then also occupied the room which
had earlier been occupied by Bibhuti Paul.

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

On 27th August I 992 the Trial Court passed a preliminary decree for
partition. It was declared that the Plaintiffs had 7/9th share in this Property.
H It also held that Goutam Paul had I/9th share in the property. The Trial Court
GAUTAM PAUL v. DEBI RANI PAUL [S.N. VARIAVA, J.] 737

~, kept the proceeding under Section 4 of the Partition Act pending, to be A
decided later on after recording evidence.

Being aggrieved, by their application under Section 4 of the Partition
:.. Act not having been decided, the Plaintiffs (i.e. Respondents I and 2 herein)
filed a First Appeal, which was ultimately numbered as 152 of 1993. This B
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 fr:e family, Respondent Nos. 1 and 2 were entitled to purchase C
over the share which had been sold to the Appellant.

Mr. S.B. Sanyal submitted that KiroP 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 D
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.
E
Mr. Sanyal relied upon the case of Ghantesher Ghosh v. Madan Mohan
Ghosh and Others, reported in [1996] 11 SCC 446. In this case it has been held
that before Section 4 can be invoked the following conditions must be
fulfilled viz.

(I) A co-owner having undivided share in the family dwelling house F
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 G
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 H
738 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A 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-
B 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
c 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
D 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
E 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 entr; of such outsider in the joint family dwelling
house is likely to create i.mnecessary disturbances not germane to the peace
and tranquillity not only of the occupants of the dwelling house but also of
neighbours residing in the locality. It is helJ that keeping these object in view
F the right flowing from Section 4 cannot be restricted in its operation only up
to the final decree for partition. It is held that crystallization 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
G 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 ge~ his share
H separated he can be said to be suing for partition and separate possession
GAUTAM PAUL v. DEBI RANI PAUL [S.N. VARIAVA, J.] 739

with in the meaning of Section 4. It has been held that such a transferee may A
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.

Mr. Sanyal also relied upon the case of Kshirode Chunder Ghosal v. B
Saroda Prasad 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 C
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, (1953) l Drewry 646 (651), 61 E.R. 598, the word
"family" is, in itself, a word of a most loose and flexible description.
It is, in fact, as Wickens V.C. said in Burt v. Hellyar, (1872) L.R. 14
Eq. 160, a popular and not a technical expression, and its meaning is D
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 E
by blood or affinity; it is sometimes used to include even a body of
persons who live in the house or under on head. In the case of Wilson
v. Cochran, (1869) 31Texas677, 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 F
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 acceptation G
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,
ought 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 H
740 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A 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
person who can trace their descent from a common ancestor."

Mr. Sanyal also relied upon the case of Pa/uni Del v. Rathi Mallick and
Ors., reported in AIR 1965 Orissa 111. In this case the question was whether
B 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
C in Partition Act to support the suggestion that the terms "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
D 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.

Relying on the above authorities Mr. Sanyal submitted that the common
ancestor was Jonoranjan Paul. He submitted that from the beginning the
E 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. l & 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
F 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.

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
G 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.

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
H transferred to a person who is not a member of such family. He submitted that
...
GAUTAM PAUL v. DEBI RANI PAUL (S.N. VARIAVA, J.] 741

admittedly this dwelling house belonged to members of the family of Nirode A
Baron Paul. He submitted that it was admitted tha\ Bejoy Ratan Paul had sold
his share to Nirode Baron Paul. He submitted that a' sale to a person who was
not a member of the family ofNirode Baron Paul would be a sale to a person
who was not a members of such family. He submitted that Section 4 would
thus become applicable. He submitted that the High Court had correctly held B
that the Appellant could not be considered a member of such family.

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 C
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 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 D
separate allotment or not, any co-sharer can claim a right for pre-emption
under Section 4 to the· Partition Act.

In support of his submission he relied upon the authority of Special
Bench of the Calcutta High Court in Siba Prosad Bahttacharyya and Others
v. Bibhuti Bhusan Bhattacharjee and another, reported in AIR 1989 Calcutta E
35. 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. F
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: G
"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 H
742 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A stranger either sues for partition as a plaintiff or asks for separate
allotments as defendant (sic) be accepted then the W,pole object. of
Section 4 would be frustrated. In a suit for partitiop 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-share as soon as a preliminary decree
B 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 u/s 4 is rejected on the ground that the defendant
has not asked for separate allotment, the defendant could ask for
-
c separate allotment. In this way if the view of Netai Dass's case be
I
accepted great injustice will be caused to the co-share of an undivided
family dwelling house."
It must be mentioned that in the above mention"d case it was noted that a
similar view was also taken in the case reported in AIR (1937) Nag. 4, AIR
D (1950) Pat 317 & AIR (1971) Orissa 127. It was also noted that a contrary view
has been taken in the cases reported in AIR (1957) All 356, AIR (1922) Born
121 andAIR(1950)Mad214.

Mr. Gupta submitted that the Calcutta High Court has consistently
taken this view. He points out that the impugned jm;lgment is by the Calcutta
E High Court. He submits that it thus could not be said that there was any error
in the judgment.
T..,-
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
F 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
G 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 partition
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-
H empt and purchase over the share of the stranger, so Jong as the stranger is
:..
GAUTAM PAUL v. DEBI RANI PAUL [S.N. VARIAVA, J.] 743

J , a party to the suit for partition. A
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
(b) Whether in the absence of the transferee suing for partition a
....... shareholder can invoke Section 4 and buy over such share?

For 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: C
"4. Partition suit by transferee of share in dwelling-house, -(-1)
a
Where 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 D
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 (I) two or more members E
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."

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. F
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 G
"dwelling-house belonging to an undivided family". Thus it must be dwelling
house belonging to an undivided family. The further requ~rement is that the
transfer must be to a person who is not a member of"such family". The words
"such family" necessarily refers to the undividell family to whom the dwelling
house belongs. In this case the undivided family is not the undivided family H
744 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

. A of Jonoranjan Paul. Admittedly the undivided family which owns the dwelling , ~
house is the undivided family ofNirode Baron Paul. It is not Appellant's case
that he is a member of the undivided family ofNirode Baron Paul. In the case
relied upon by Mr. Sanyal the persons concerned were members of the family
to whom the dwelling house belonged. In the case the Appellant, not being
a member of the family of Nirode Baron Paul cannot be said to be a member
B of the undivided family to whom the dwelling house belongs. Merely because
he is related by blood. through a common ancestor i.e. Jonaranjan 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.
c 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) Nag. 4, AIR
(1950) Pat 37 and AIR (1971) Orissa 127, support the interpretation sought to
be placed on Section 4 by Mr. Gupta however, as noted above there is conflict
D of opinion between the various High Court on this point. The cases reported
in AIR (1957) All 356, AIR (1922) Born, 121 and AIR (1950) Mad 214 take a
contrary view. In our view for reason set out hereinafter the opinion held by
the Calcutta, Patna and Orissa High Court is not correct and cannot be
sustained. It must be mentioned that this Court has in the case of Babu Lal
E v. Hablnoor Khan, reported In AIR [2000] 5 SCC 662 already considered the
correctness of the view taken in AIR 1971 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
p a stranger-purchaser who does not move for partition of the joint
property against the remaining co-owners either as a plaintiff or even
as successor of the decree-holder seeks execution of the partition
decree .can still be subjected to Section 4 to 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
G treated to be overruled."

We are in agreement with this opinion.

There is no law which provides that co-sharer must only sell his/her share
to another co-share. Thus stranger/outsiders can purchase shares even in a
H dwelling house. Section 44 of the Transfer of Property Act provides that the
,ti!f....
\
'
GAUTAM PAUL v. DEBI RANI PAUL [S.N. VARIAVA,J.] 745
transferee of share of a dwelling how~e, if he/she is not a member of that A
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 B
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 C
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, interpretation cannot be one
which gives a right which the Legislatures clearly did not intend to confer.
The Legislature was aware that in Suit for Partition the stranger/outsider, who
has purchased a share would have to be made a party. The Legislature was D
aware that in a Suit for Partition the parties are inter-changeable. The Legis!ature
was aware that a Partition Suit would result in a decree for Partition arid 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 E
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/o'-;!tsider.
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 F
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 execution proceedings, it cannot be said G
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 than in all cases, where there has
been a sale of 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 H
746 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A 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 Partitio.n. This was not the
intent or purpose of Sect-ion 4. Thus the view taken by Calcutta, Patna,
B Nagpur and Orissa High Courts, In the aforementioned cases, cannot be said
to be good law.

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
C or demanded pos/ession 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 ciredfnstances, the High Court was wrong in allowing the Respondents
l and 2 to exercise a right ofpre-emption under Section 4 of the Partition Act.
In this case, the condition of a transferee suing for partition had not been
fulfilled.
D
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 l 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
E if at any stage the Appellant applies for partition and for separation and
possession of his share Respondents I and 2 and/or any other co-sharer will
still entitled to move under Section 4 of the Partition Act.

The Appeal stands disposed off accordingly. There wi1J be no order as
F to costs.

S.V.KI. Appeal disposed of.