Holding

Section 4 of the Partition Act is applicable from the commencement of a partition suit until the final decree is fully executed and satisfied, and therefore can be invoked during execution proceedings but not after full satisfaction.

Summary

The case concerned a residential dwelling house owned by an undivided family. After a partition suit, the widow of a deceased co‑owner obtained a final decree for her one‑third share and later gifted that share to her brother, a stranger to the family, who filed an execution petition. During execution, the legal heir of another co‑owner applied under Section 4 of the Partition Act, 1893 seeking pre‑emption of the stranger’s share. The trial court dismissed the application, but the Calcutta High Court allowed it, holding that Section 4 remains applicable until the partition decree is fully executed. The Supreme Court affirmed that the provision operates at all stages of a partition suit—including execution proceedings—so long as the decree has not been completely satisfied, and ordered the application to be processed, effectively dismissing the appellant’s appeal.

Issues considered

Whether Section 4 of the Partition Act, 1893 can be invoked in execution proceedings of a final partition decree.
Whether the phrase “transferee sues for partition” includes a stranger who initiates execution of a decree rather than filing a fresh suit.

Legislation cited

Code of Civil Procedure, 1908s. 11, s. Explanation VII to Section 11, s. Order 22 Rule 10, s. Order 22 Rule 12
Partition Act, 1893s. 4
Transfer of Property Act, 1882s. 44, s. 52

Subjects

Partition ActSection 4pre‑emptiondowelling houseundivided familyexecution of decreestatutory interpretationbeneficial legislation

Judgment

A GHANTESHER GHOSH
v.
MADAN MOHAN GHOSH AND ORS.

SEPTEMBER 18, 1996

B [N.P. SINGH AND S.B. MAJMUDAR, .TJ.)

P01tition Act, J893 : Section 4.

Dwelling house-Belonging to undivided family-Transfer of share to
C stranger-Pursuant to final decree for p01tition--Such strange1~Transferee
filed petition for execution of decree·-Dwing pendency of execution proceed-
ings co-owner family member filed application before executing cowt for
purchase or share of such stranger--transferee by enforcing his claim for
pre-emption under S.4 of the Act-Executing cowt dismissed application on
ground that said application not maintainable after passing of final decree in
D p01tition suit-Howeve1; High Court allowed said application-Applicability
of S.4-Held : Words "such transferee sues for partition" and "Sues for
partition" wider in scope than words "filling suit for p01tition''-Suit for
partition included initiation of proceedings for execution of partition
decree-S.4 operated at all stages of litigation in a partition suit--R.ight from
E its inception till its tennination not only by final decree for partition but also
by its complete satisfaction and discharge in execution proceedings-S.4 could
be invoked by any co-owner family member for purchase of strr;1iger-
transferee's share-But once final decree for p01tition was completely satisfied
and discharge in execution proceedings S.4 could not be invoked-Code of
Civil Procedure, J908, S.11. Expin. VII, 0.22 Rr. JO and J2--Transfer of
F Property Act, J882, Ss. 44 and 52.

Interpretation of Statutes :
)

Benevolent legislation-Interpretation which ftuctified beneficial pur-
G pose of provision should be adopted.

Words and Phrases:

"Sue'~ "~uit" and "Sue for p01titio11''-Meaning of-In the context of
Code of Civil Procedure, J908, S. J J Expln. VII, 0.22 Rr;. JO, J2 and PaTtition
H Act, 1893 S.4.
448
•
G. GHOSH v. M.M. GHOSH [MAJMUDAR J.j 449

A residential house was owned by three brothers, each having 1/3rd A
share. After the death r,f one of the brothers his widow inherited 1/3rd
undivided share of her husband in the said dwelling house and on coming
into ·operation of the Hindu Succession Act, 1956 she became full owner of
the l/3rd share of her deceased husband in the said house. Thereafter, she
filed suit for partition against the other two co-owners claiming separa-
B
tion of her 1/3rd share in the said house. She obtained a final decree in
the suit. Thereafter, she executed and got registered a deed of gift in favour
of her brother, the appellant, in respect of her 1/3rd undivided interest in
the said dwelling house. Armed with that gift-deed, the appellant-donee,
who was a stranger to the joint family, filed an execution petition for
executing the final decree. Pending the execution proceedings one of the C
co-owner judgment-debtors died and the respondent No. 1 was brought on
record as his legal heir in the execution proceedings. The respondent No.
'· 1 filed an application before the executing court under Section 4 of the
Partition Act, 1893 for enforcing his claim of pre-emption against the
appellant stranger transferee of the 1/3rd undivided interest of the original D
title holder. The executing court dismissed the said application of respon-
dent No. 1 on the ground that the said application was not maintainable
after the final decree was passed in the partition suit. But the High Court
took the view that the said partition suit under the Act was maintainable
as still the final decree had not got fully executed and satisfied by actual
division of the property by metes and bounds and delivery of actual E
possession to the stranger transferee who had taken out the execution
proceedings. Being aggrieved the appellant-stranger transferee preferred
the present appeal.

Disposing of the appeal, this Court
F
HELD : 1.1. Section 4 of the Partition Act, 1893 can validly be
pressed in service by any of the co-owners of the dwelling house belonging
to undivided family pending the suit for partition till final decree is passed
and thereafter even at \i1e stage of execution of the final decree for
partition so long as the execution proceedings have not effectively ended G
and the decree for partition has not been fully executed and satisfied by
putting the shareholders in actual possession of their respective shares.
Beyond that stage, however, Section 4 of the Act will go out of commission.
[469-E-G]

1.2. Amongst other cor1ditions, Section 4 requires for its applicability H
450 SUPREME COURT REPORTS [1996] SUPP. 6 S.C.R.

A that the stranger transferee must sue for partition and only in that
eventually the right of pre-emption envisaged by Section 4 can be made
available to the other contesting co-owners. This Section does not provide
as a condition for its applicability that such stranger tra;isferee must file
a suit for partition. The words "transferee for partition" are wider than the
B words "transferee filing a suit for partition". The terminology "suing for
partition" would not necessarily mean filing of a suit in the first instance
by the transferee. If a transteree seeks to execute any final decree for
partition in favour of his transferor co-owner, he can be said to have
initiated· a legal action for redressal of his decretal right as a stranger
C transferee. Any legal action ~ken by anyone for get.ting redressal from a
law court and for vindicating his legal right on which such action is based
can be said to have sued in a court of law. It cannot, therefore, be said that
a purchaser of decretal rights flowing from a final decree for partition
•
.I-
while initiating proceedings for execution of that decree against the judg-
D ment- debtors who are co-sharers in the property sought to be partitioned
by metes and bounds, is' not suing for partition by getting the said decree
executed through a court of law. Once the partition decree becomes final,
it is the duty of the court which passes the decree to get it executed when
called upon to do so with a view to seeing that the rights and obligations
flowing from such decree get finally complied with and translated into
E reality. Till that stage is reached the court which passes the decree does
not become totally ftmctus officio and the litigation between parties cannot
be said to have ended finally. Under these circumstances, it cannot be said
that a decree-holder in a partition suit or his transferee who is armed with
the plaintiff's rights pending such suit or even after the passing of the final
F decree as transferee of decretal rights when he seeks execution is not suing
for partition or is not entreating the court for its assistance to get his right
fully vindicated as per the claim in the suit and decree therein. The
legislative intent underlying various provisions of the Code of Civil Proce-
dure, 1908 viz., Explanation VII to Section 11, Order 22, Rules 10 and 12
G also show that in given circumstances the proceedings in the suit can be
treated to include even execution proceedings. Section 52 of the Transfer
of Property Act, 1882 is another illustration on the point dealing with the
principle of Lis pendens. The legislature for different contingencies has
thought it fit to exte.nd the scope and ambit of the terminology "suit" even
H for covering the execution proceedings in connection with decrees passed
G. GHOSH v. M.M. GHOSH [MAJMUDAR, J.] 451

in such suits. Section 4 of the act has also advisedly used the terminology A
"sues for partition" and has not confined it only to suits filed by stranger
transferee for applicability of Section 4 of the Act. [461-E-H, 462-D-E]

- 1.3. The court should lean in favour of that interpretation which
fructifies the beneficial purpose for which the provision is enacted by the B
legislature and should not adopt an interpretation which frustrates or
unnecessarily truncates it. On the express language of Section 4 of the
Partition Act which is a benevolent provision enacted by the legislature for
the welfare and tranquility of the members of a joint family occupying the
dwelling house, the Court must so construe the provision as to make it
available at all the relevant stages of the litigation between the contestingc
co-owners till the litigation reaches its terminus by way of full and final
discharge and satisfaction of the final decree for partition. If a stranger
transferee enters the arena of contest at any stage and seeks to get his
share separated as far as the subject-matter of the litigation, namely, the
dwelling house, is concerned, he can be said to be suing for partition and D
separate possession of his undivided share to which he had become en-
titled because of transfer by one of the co-owners. Such a transferee might
come on the scene prior to the final decree via Order 22 Rule 10 or he may
come on the arena of contest seeking redressal of his right of partition and
separation of his undivided share even in execution proceedings as a
transferee of the decretal right of erstwhile plaintiff under the final decree E
either by himself filing the execution proceedings as per order 21 Rule 16
or may subsequently step in the shoes of the decree-holder who has already
filed the execution proceedings via Order 22 Rule 10 read with Order 22
Rule 12. In either eventuality, such a stranger transferee who emerges on
the scene of litigation between the contesting co-owners which has not still F
reached its terminus and who seeks vindication of his transferee-rights in
the dwelling house can certainly be said to be suing for partition even at
the stage of execution of such final decree for partition. [464-A-D]

\
> Satya Narayan Chakravarty v. Bishwanath Paul & Ors., [1974] Cal. G
WN 871; Boto Krishna Ghose v. Aklwy Kumar Ghose & Ors. AIR 37 Cal
111 and Harendra Nath Mukliarjee v. Shyam Sunder Kuer & Ors. AIR (1973)
Pat 142, approved.

Abdul Sathar v. A. Nawab, AIR (1980) Mad. 235, overruled. H
452 SUPREME COURT REPORTS. [1996) SUPP. 6 S.C.R.

A Sheodhar Pra:jad Singh & Ors. v. Kishun Prasad Singh & Ors., AIR
(1941) Pat 4 and Brindera Nath Ba1te1jee v. Smt. Sneha,{ata Devi and Anr.
AIR (1958) Cal 380, held inapplicable. . ·.

Waman Vishnu Gokhale v. Vasudeo Morbhat Kale, lLR 23 Born. 73, ....
cited.
B
Maxwell : "The Inte1pretation of Statutes'~ 12th Edn. Chapter 4, p96;
Black's law Dictionary, 6th Edn, p 1432; Collins English Dictionary, (1979)
Edn. p. 1452; Aiyar's Judicial Dictionary, 10th Edn. (1988), p. 980; Concise
Oxford, Dictionary, 7th Edn. p. 1066 and Stroud's Judicial Dictionary, 5th
C Edn. p. 2540, referred to.

2. Section 4 in its applicability will cover all stages of litigation in a
partition suit from its inception till its termination not only by the final .J
decree for partition but also by its complete satisfaction and discharge
through the assistance of the executing court; once that happens the court
D itself becomes ftmctus officio and the Litigation will come to an end and
the concerned parties thereafter will occupy the respective portions of the •.
erstwhile dwelling house as full owners of their portions. The separated
part of the dwelling house in possession of such stranger transferee cannot
then be treated as a part and parcel of the dwelling house belonging to an
E undivided family and at that stage the dwelling house qua such a stranger
would cease to belong to any joint family and it would belong to different
owners occupying their respective portions in a composite building. The
moment the integrity of common dwelling house belonging to undivided
family is broken by the execution of the final partition decree through the
F intervention of the court and the proceedings are ended, there would
remain no scope for play of Section 4 of the Act as there would be no
subject-matter of a common dwelling house belonging to an undivided
family on which it could operate. [469-A-E]

G CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3732 of
1991.

From the Judgment and Order dated 17.12.90 of the Calcutta High
Court in Civil Rule No. 2250 of 1987.

H Dr. Shankar Ghosh and Somnath Mukherjee for the Appellant.
G.GHOSHv. M.M.GHOSH[MATMUDAR,J.] 453

Haradhan . Banarjee, Bijab Ghosh and R.P. Gupta for the Respon- A
dents.

The Judgment of the Court was delivered by

MAJMUDAR, J. A short question falls for determination of this Court B
.. in this appeal by special leave against the decision of the Division Bench of the
High Court of Calcutta in Civil Revision Appiication No. 2250of1987. The
question is whether Section 4 of the Partition Act, 1893 (hereinafter referred
to as 'the Act') can be pressed in service in execution proceedings arising out
of a final decree for _Partition, by one of the co-owners of a dwelling house
belonging to an undivided family against a stranger transferee of a share C
therein belonging to another erstwhile co-owner of the said dwelling house.
The learned Secon.d Assistant District Judge, Howrah, before whom the said
application y.7as nio~ed took the view that Section 4 of the Partition Act could
not be .pressed in service against the stranger purchaser of such share. The
said view was not accepted by the Division Bench of the High Court of Cal- D
cut.ta by the
.
impugned
.
judgment.

In order to appreciate the correct contours of the controversy in
respect of the aforesaid question, it is necessary to glance through a few
background facts leading to the proceedings. The premises in question are
a residep.tial house situated at No. 6/1 Ghoshal Bagan Lane, Howrah. It E
was originally owned by one Kalipada Ghosh and on his death his three
surviving sotis, namely; Pran Krishna, Gour Mohan and Kamal Krishna·
became owners of 1/3rd share each. On 7.9.1948, Kamal Krishna died
leaving behind him his widow Smt. Radha Rani. Thus, she inherited 1/3rd
m
undiVi.ded share of h~r husband the said dwelling house. On the c~ining F
·. into _operatio~ ". of the :1-Iindu Succession Act, 1956, Smt. . Radha Rani
became full owner of 1/3rd share of her deceased h11sbarid in the said
house. She filed a suit for partition on 5.9.1960 -claimip.g sep.aration of her
1/3rd share in the said house aniongst other. proper~ies. In the present
proceedings, we are concerned o~ly with the aforesaid family dwelling
house. The suit was filed against the other two co-owners, namely, Pran G
Krishn and Gaur Mohan. Ultimately, after the preliminary decree a final
decree came to be passed in favour of Smt. Ra~ R,ani on 31.8.1971 ..
Accordingly, she became entitled to partition and separation of her 1/3rd
share in the said dwelling house. She made an abortive attempt to get the
final decree executed but therein she did not get any relief of actu.al H
454 SUPREME COURT REPORTS [1996) SUPP. 6 S.C.R.

A possession for number of years. In the meanwhile, on 8.10.1979 she ex-
ecuted and got registered a deed of gift in favour of her brother, the
present appellant, gifting her 1/3rd undivided interest in the said dwelling
house as decreed to her pursuant to the final decree for partition. Armed
with that gift deed, the appellant donee who obviously was a stranger to
the joint family, filed execution petition on 14.12.1981 for executing the
B
final decree obtained by his predecessor in interest, namely, the donor Smt.
Radha Rani. Pending the execution proceedings taken out by the appellant
do nee, one of the judgment-debtors Pran Krishna, original first defendant,
died in July 1983. In his place, his son present Respondent No. 1, Madan
Mohan Ghosh was brought on record as his legal heir in the execution
C proceedings. The executing court by its order dated 17.1.1985 issued a writ
of possession by appointing a Pleader Commissioner to undertake the task
of suggesting partition of the suit house by metes and bounds. Then in
September 1985, pending the execution proceedings · original judgment
debtor Defendant No. 2 Gaur Mohan also died. It appears that thereafter
D the real contest remained between the appellant on the one hand and
Respondent No. 1 on the other. Respondent No. 1 filed an application on
12.12.1986 before the executing court under Section 4 of the Act for
enforcing his claim of pre-emption against the appellant stranger transferee
of l/3rd undivided interest of the original title-holder Smt. Radh Rani. The
executing court by its order dated 13.8.1987 dismissed the said application
E of respondent No. 1 on the ground that the said application was not
maintainable after the final decree was passed in the partition suit. As
stated earlier; the said view of the executing court was· not approved by the
Division Bench of the Calcutta High court in the revision application. It
took the view the view that said petition under the Act was maintainable
F and still the final decree had not got fully exe,cuted and satisfied by actual
division of the property by metes and bounds and delivery of actual
possession to the stranger transferee who had taken out the execution
proceedings. By its order dated 17.12.1990, the High Court directed the
executing court to dispose of the application of Respondent No. 1 under
Section 4 of the Act on merits with a further direction to complete the said
G proceedings within six months. It is the aforesaid order of the High Court
which is challenged in the present appeal by special leave, as noted earlier.

RIVAL CONTENTIONS:

H Dr. Ghosh, learned senior counsel for the appellant, vehemently
G. GHOSHv. M.M. GHOSH [MAJMUDAR,J.] 455

- contended that on the express language of section 4 of the Act, the
application moved by Respondent No.1 was not maintainable. Dr. Ghosh
relied upon a number of decisions which had taken the view canvassed by
him. His submission in short was that Section 4 of the Act can be availed
A

of any of the parties to the litigation in the partition suit till its culmination
into a final decree for partition. That even during the appeal against the
B
final decree section 4 can be pressed in service. That once the final decree
comes to be passed and gets finally confirmed by the ultimate court of
appeal the suit comes to an end. Thereafter,. when execution proceedings
are taken out for execution such final decree, Section 4 of the Act would
be out of picture and cannot be pressed in service against the stranger
transferee of the decretal rights of one of the co-owners in the family C
dwelling house. Dr. Ghosh also vehemently tried to submit that the finding
reached by both the courts below that the suit property consisted of a
family dwelling house and was not an open land, was also not sustainable.
On the other hand, learned counsel for the respondents submitted that
Section 4 is a beneficial provision which seeks to avoid the interference by D
the stranger transferee of co-owners' right in a joint family dwelling house
and it such strangers are permitted to come into possession of any part of
such dwelling house, the peace and tranquility of the rest of the occupant
members of the joint family would be affected and in order to avoid such
a contingency and possible social strife the legislature in its wisdom and
enacted this provision which has stood the test of time spread over more E
than a century and there was no reason to restrict the application of such
a benevolent section only upto the stage of final decree and not during
further proceedings in execution of such final decree. It was submitted that
beneficial provision of Section 4 can rightly be made applicable during
execution proceedings tili the final decree gets fully satisfied by division of F
property by metes and bounds and by actual delivery of possession of
respective portions of the joint family dwelling house to the concerned
shares. It is only at that stage that the executing court would become
ftmctus officio. That till that stage is reached Section 4 of the Act can be
legitimately pressed in service by any of the remaining co-owners claiming
pre-emptive right to purchase the share of the stranger transferee from one G
of the co-owners. Learned counsel also in his turn relied upon a decision
of the Division Bench of the Patna High Court in Harendra Nath Mukh01jee
v. Shyam Sunder Kuer & Ors., A.LR. (1973) Patna 142. He also submitted
that in a partition suit till the decree gets fully satisfied and executed each
H
456 SUPREME COURT REPORTS [1996] SUPP. 6 S.C.R.

A contesting party remains as god as a plaintiff and consequently the benefi-
cial provision of Section 4 can be pressed in service by any of the contesting
co-owners till the final decree in such a suit for partition ge_ts fully executed
and implemented and consequently curtain drops on the partition proceed-
-
ings between the parties for ever.

8 It is in the background of these rival contentions that we address
ourselves to the consideration of this question. Before we refer to the
cleavage of judicial opinion amongst different High Courts on the scope
and ambit of Section 4 of the act, it would be profitable to have a look at <
the provision itself. The Statement of Objects and Reasons for enacting the
c Partition Act, 1893 amongst others, provided as under :

"It is also proposed in the Bill to give the Court the power of
compelling a stranger, who has acquired by purchase a share in a
family dwelling-house when he seeks for a partition, to sell his ....
share to the members of the family who are the owners of the rest
D
of the house at a valuation to be determined by the Court. This
provision is only an extension of the privilege gi:ven to such share
holders by section 44, paragraph 2 of the Transfer of Property Act,
and is an application of a well-known rule which obtains among
Muhammadans everywhere and by custom also among Hindus in
E some parts of the country."

It is obvious that the Act intended to extend the privilege already available
to a co-sharer in a family dwelling house as per Section 44 of the Transfer
of Property Act, 1882 (hereinafter referred to as the T.P. Act'). Section 44
F of the T.P. Act dealing with cases of transfer by one of the co-owners of
immoveable property, reads as under :

"44. Transfer by one co-owner - where one of two or more co-
owners of the immovable property legally competent in that behalf
transfers his share of such property or any interest therein, the
G transferee acquires, as to such share or 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 proper-
ty, and to enforce a partition of the same, but subject to the
conditions and liabilities affecting, at the date of the transfer, the
H share or interest so transferred.
G. GHOSH v. M.M. GHOSH [MAJMUDAH., J.] 457

Where the transferee of a share of a dwelling house belonging A
to an undivided family is not a member of the family, nothing in
this section shall be deemed to entitle him to joint possession or
other common or part enjoyment of the house".

It is obvious that by the time the Act came to be enacted, the legislature
had in view the aforesaid parent provision engrafted in section 44 of the B
T.P. Act to the effect that a stranger to the family who becomes the
transferee of an undivided. share of one of the co-owners in a dwelling
house belonging to undivided family could not claim a right of joint
possession or common or part enjoyment of the house . with other co-
owners of the dwelling house. Implicit in the provision was the legislative c
intent that such stranger should be kept away from the common dwelling
house occupied by other co-sharers. It was enacted with the avowed object
· of ensuring peaceful enjoyment of the common dwelling house by the
remaining co-owners being members of the same family sharing a common
hearth and or home. It is in the light of the aforesaid pre-existing statutory D
background encompassing the subject that we have to see what Section 4
of the Act purports to do. Section 4 of the Act pr.ovides as under :

"4. Partition suit by transferee of sh<\re 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 E
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. F

(2) If in any case described in sub-section (1) two or more
members of the family being such shareholders severally under-
take to buy such share, th·e Court shall follow the. procedure
prescribed by sub-section (2) of the last foregoing section." G
A mere look at the aforesaid provision shows that for its applicability at
any stage of the proceedings between the contesting parties, the following
conditions must be satisfied :

(1) A co-owner having undivided share in the family dwelling house H
458 SUPREME COURT REPORTS l 1996) SUPP. 6 S.C.R.

A 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
B of the undivided share transferred to him by the concerned co-
owners;

(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
c 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 belong-
D ing 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
E in the dwelling house and accordingly '~an be effectively denied
entry in any part of such family dwelling: house.

The aforesaid analysis of Section 4 of the act m::.kes it clear that there
is no express provision indicating the stage at which such application can
F be moved against the stranger transferee of the share of an erstwhile
co-owner of dwelling house of undivided family. Consequently, on the
language of Section 4, it cannot be urged that it cannot be pressed in
service after the final decree for partition is pas1;ed and before such final
decree is fully executed whereby the co!lrt becomes ftmctus officio. It is
trite to observe that in the present case out of the aforesaid conditions for
G applicability of Section 4, save and except the condition regarding the
stranger transferee suing for partition which is the subject-matter of fierce
controversy between the parties, all the remaining conditions are satisfied.
In other words, there is well established on the record of the case that the
suit house was a dwelling house belonging to undivided family of three
H erstwhile brothers and which later on came to belong to two undivided
G. GHOSH v. M.M. GHOSH (MAJMUDAR,J.] 459

brothers along with the widow of their deceased brother and thus the suit A
house was a dwelling house belonging to undivided family. Dr. Ghosh,
learned senior counsel for the appellant, faintly tried to submit that both
the courts below were in error in holding that the suit property consisted
of a dwelling house and not open land. As both the courts concurrently
found it to be a dwelling house belonging to undivided family, this conten-
B
tion is no longer open for adjudication at this stage. We, therefore, proceed
on the basis that the suit house is a dwelling house belonging to undivided
family. It is also not in dispute between the parties that 1/3rd interest of
one of the co- owners, namely, Smt. Radha Rani, who had got final decree
for partition in her favour, was transferred by gift in favour of the appellant
after the final decree and that such donee-transferee was a stranger to the c
family as he was not a member of the said family. It is also not in dispute
that Respondent No. 1 by way of application under Section 4 of the Act
undertook to buy out the share of the appellant stranger transferee being
l/3rd undivided share which belonged to his predecessor in title decree-
holder Smt. Radha Rani. However, the real controversy between the D
parties is whether the appellant who is a stranger transferee of 1/3rd
undivided interest of Smt. Radha Rani in the suit property can be said to
have sued for partition so as to satisfy the remaining condition of the said
provision.

In order to answer this moot question, it has to be kept in view what E
the legislature intended while enacting the Act and specially Section 4
thereof. The legislative intent as reflected by the Statement of Objects and
Reasons, as noted earlier, makes it clear that the restriction imposed on a
stranger transferee of a share of one or more of the co-owners in a dwelling
house by Section 44 of the T.P. Act is tried to be further extended by F
Section 4 of the Partition Act with a view to seeing that such transferee
washes his hands off such a family dwelling house and gets satisfied with
the proper valuation of his share which will be paid to him by the pre-empt-
ing co-sharer or co-sharers, as the case may be. This right of pre-emption
available to other co- owners under Section 4 is obviously in further.
fructification of the restriction of such a transferee as imposed by Section G
44 of the T.P. Act. It is true that amongst other conditions, Section 4
requires for its applicability that such stranger transferee must sue for
partition and only in that eventuality the right of pre- emption envisaged
by Section 4 can be made available to .the other contesting co-owners. In
this connection, great emphasis was placed by Dr. Ghosh 011 the words H
. 460 SUPREME COURT REPORTS [1996] SUPP. 6 S.C.R.

A "such transferee sues for partition" as employed by Section 4. However, it
has to be noted that this seCtion 'does not provide as a condition for its
applicability that such' stranger t;ansferee must file a suit for partition. The
words "transferee sues foi: partiti()ni' ar.e wider than the words "transferee
filing a suit for partition". The latter phraseology is conspicuously absent
in the section. the ·Partition Act does not define the words "suing for
B partition". The connotation of the term "sue" can be better appreciated by
looking at certain standard W?rks defining such a phrase. In Black's Law
Dictionary, Sixth Edition, at page 14;32 tlie meaning of the word "sue"
mentioned as under·:

"To conj~ence or t6 continue legal proceedings for recovery of a
0

c
right; to proceed with as ;m action, and follow it up to its proper
termina_tion; to gain by legal process".

Jn Collins English Dictionary, 1979 Edition, at page 1452, one of the
meaning of the word "sue" has been shown as under :
D
"to institute legal proceedings against".

In Aiyar's Judicial Dictionary, lO~h Edition (1988), at page 980, the word
"sue" is said to have the .following ineaning : -

E T~.t~R:e anyl~gal·proceedings against one".
It is further observed that the· word is used most exclusively to prosecute
a civil action against one.

In Concise Oxford Dictionary, Seventh Edition, at page 1066, the
F following meanings are ascribed to the word "s~e" :
.. "1. institute legal proceedings against (person); make application
to or to law court for redress; make petition in law court for and
obtain (writ,· pardon etc.); 2. entreat (person); make entreaty to
(person) for a favour".
G
In Stroud's JudiCial Dictionary, Fifth Edition, at page 2450, the words "to
sue" is said to have the meaning generally speaking, of bringing action.

It is, therefore well-established that the terminology "suing for parti-
tion" would not necessarily mean filing of a suit in the first instance by the
H transferee. If a transferee·seeks to execute any final decree for partition in
G.GHOSHv.M.M.GHOSH[MAIMUDAR,J.J. 461

favour of his transferor co-owner, h.e can b~ said to have initiated a legal A
action for redressal of his decretal right as a stranger transferee. Any legal
action taken by anyone for getting redressal from a law court · and for
indicating his legal right on which such action is based can be said to have
sued in a court of law. It ca~not, therefore, be said that a purchaser of
decretal rights flowing from a final decree for partition while initiating B
proceedings for execution of that decree against the judgment-debtors who
are co-sharers in the property sought to be partitioned by metes and
bounds, is not suing for partition by getting the said decree executed
through a court df law. If the words "transferee suing for partition" are
given a restrictive meaning, namely, that he can be said to· be suing for
partition only upto the stage of final decree in ·such a suit for partition then C
the wide phraseology advisedly employed by the legislature in .the section
would be deprived of its real laudable object and content. It is trite to
observe. that till the final decree for partition of a co-ownership property
culminates into its full discharge and satisfaction, the lis between the
contesting parties cannot be said to have come to a final end. It is also
exiomatic that once the partition decree becomes final, the court which D
passed the decree does not become ftmctus officio for all purpose. On the
contrary, its role remains effective till the decree passed by it gets fully
executed and implemented. It is for this very purpose that the legislature
has provided as per Section 38 of the Civil procedure Code that a decree
may be executed by the court which passed it, or by the court to which it E
is sent for execution. Therefore, it is the duty of the court which passes the
decree to get it executed when called upon to do so with a view to seeing
that the rights and obligations flowing from such decree get finally com-
plied with and translated into reality. Till that stage is reached the court
which passed the decree does not become totally functus officio and the
litigation between parties cannot be said to have ended finally. Under F
these circumstances, it cannot be said that a decree-holder in a partition
suit or his transferee who is armed with the plaintiffs rights pending such
suit or even after the passing of the final decree as transferee of decretal
rights when he seeks execution is not suing for partition or is not entreating
the court for its assistance to get his right fully vindicated as per the claim G
in the suit and decree therein. In this connection, it is also profitable tc
keep in view the legislative intent underlying various provisions of the Code
of Civil Procedure which shows that in given circumstances the proceedings
in the suit can be treated to include even execution proceedings. Explana-
tion VII to Section 11 of the civil Procedure Code dealing with res judicata
lays down as under : H
462 SUPREME COURT REPORTS [1996] SUPP. 6 S.C.R.

A "Explanation VII. - The provisions of this section shall apply to a
proceeding for the execution of a decree and references in this
section to any suit, issue or former suit shall he construed as
references, respectively, to proceeding for the execution of the
decree, question arising in such proceedings and a former proceed-
ing for the execution of that decree."
B
As per Order 22 Rule 10, in cases of an assigr.ment, creation or devolution
of any interest during the pendency of a suit, the suit may, by leave of the
court, be continued by or against the person to or upon whom such interest
has come or devolved. As per Order 22 Rule 12, notlting in rules 3, 4 and
C 8 shall apply to proceedings in execution of a decree or order meaning
thereby that Order 22 Rule 10 will apply to execution proceedings whereby
the same scheme regarding devolution of interest of either party in the suit
is made applicable even to execution proceedings.

D Section 52 of the Transfer of Property Act is another illustration on
the point dealing with the principle of /is pendens. The explanation to the
said section indicates that the pendency of a suit would encompass the
stage after the final decree till complete satisfaction and discharge of such
decree or order. It is, therefore, obvious that legislature for different
contingencies has thought it fit to extend the scope and ambit of the
E terminology "suit" even for covering the execution proceedings in connec-
tion with decrees passed in such suits. As we have seen earlier, Section 4
of the Act has also advisedly used the terminology "sues for partition" and
has not confined it only to suits filed by stranger transferee for applicability
of Section 4 of the Act.
F
We have also to keep in view the avowed beneficial object underlying
the said provision. Section 4 of the Partition Act read with Section 44 of
the T.P. Act represents a well knit legislative scheme for insulating the
domestic peace of members .·of undivided family occupying a common
dwelling house from the encroa<;hment of a stranger transferee of the share
G of one undivided co-owner as :the rerµ.aining co-owners are presumed to
follow similar tradition a,nd mode of life and to be accustomed to identical
likes and dislikes and identical family traditions. This legislative scheme
seeks to protect them from the onslaught on their peaceful joint family life
by stranger-outsider to the family who may obviously be having different
H outbok and mode of life including food habits and other social and
G. GHOSH v. M.M. GHOSH (MAJMUDAR,.J.] 463

religious customs. Entry of such outsider in the joint family dwelling house A
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 and in the near vicinity. With a view to
seeing that such homogenious life of co-owners belonging to the same joint
family and residing in the joint family dwelling house is not adversely
B
affected by the entry of a stranger to the family, this statutory right of
pre-emption is made available to the co-owners who undertake to buy out
such undivided share of the stranger co-owner. If such a right flowing from
Section 4 of the Act is restricted in its operation only upto the final decree
for partition, the very benevolent object of the section would get frustrated
as upto final decree stage, the court would only crystalise the shares of the c
contesting co-owners but the separation and partition of the shares of
respective parties get really affected on spot only by actual division by
metes and bounds and delivery of possession of respective shares to
respective share-holders. This can be achieved only at the stage when the
execution of the final decree takes place and the litigation reached its D
terminus for the contesting parties and the curtain drops on the litigation.
Only then the court which passed the decree becomes finally ftmctus officio.
It is also well-settled rule of interpretation of statute that the court should
lean in favour of that interpretation which fructifies the beneficial purpose
for which the provision is enacted by the legislature and should not adopt
an interpretation which frustrates or unnecessarily truncates it. Maxwell on E
the Interpretation of statutes, Twelfth Edition, has observed in Chapter 4
pertaining to beneficial construction as under :

"The fact that a section is clearly designed to afford relief may
incline the court to construe it more benevolently than it might a
less obviously remedial enactment... .... "
F

Similarly, it has been observed at page 96 as under :

"It is said to be the duty of the judge to make such construction
of a statute as shall suppress the mischief and advance the remedy. G
To this end, a certain extension of the letter is not unknown, even
in criminal statutes".

Consequently, on the express language of Section 4 of the Partition Act
which is a benevolent provision enacted by the legislature for the welfare
and tranquility of the members of a joint family occupying the dwelling H
464 SUPREME COURT REPORTS [1996) SUPP. 6 S.C.R.

A house, we must so construe the provision as to make it available to all the
relevant stages of the litigation between the contesting co-owners till the
litigation reaches its terminus by way of full and final discharge and
satisfaction of the final decree for partition. If a stranger transferee enters
the arena of contest at any stage and seeks to get his share sepanted as
far as the subject-matter of the litigation, namely, the dwelling house, is
B concerned, he can be said to be suing for partition and separate possession
of his undivided share to which he has become entitled becaµse of transfer
by one. of the co-owners. Such a transferee might come on the scene prior
to the final decree via order 22 rule 10 or he may come on .the arena of
contest seeking redressal of his right of partition ar.d separation of his
C undivided share even in execution procee.<lings <,iS a transferee· of the
decretal right of erstwhile plaintiff under the final decree either by himself
filing the execution proceedings as per Order 21 Rule 16 or may sub-
sequently step in the shoes of the decree-holder who has already filed the
execution proceedings via Order 22 Rule 10 read with Order 22 Rule 12.
D In either eventuality, such a stranger transferee who emerges on the ·scene
of litigation between the contesting co-owners which has not still reached
its terminus and who seeks vindication of his transferee-rights in the
dwelling house can certainly be said to be suing for partition even at the
stage of execution of such final decree for partition. .

E In our view, therefore, on the express language of Section· 4 of the
Partition Act, the Division Bench of the High Court reached a correct
conclusion in the impugned judgment.

. Now is time for us to have a quick look at the different decisions of
F the High Courts on this question. Dr. Ghosh, learned· senior ;counsel for
the appellant, heavily relied upon some of the decisions of the· Patna and
the Calcutt<: High Courts as well as the decision of the Madras High Court
in support of his contention that Section 4 cannot be applied at the stage
of execution of a final decree for partition. On the otht_!r hand, learned
counsel for the respondents, relied upon the latter decisions of the Patna
G High Court as well as the Calcutta High Court in support of his rival
contention seeking application of Section 4 of the Act even during execu-
tion proceedings and which contention, as we have seen above, meets our
approval. We shall first deal with the decisions relied upon by Dr. Ghosh
in support of his contention. In Sheodhar Prasad Singh & Ors. v. Kishzm
H Pra.<:;id Singh &. Ors., A.LR. (1941) Patna 4, Dhavle, J. took the view that
G. GHOSH v. M.M. GHOSH (MAJMUDAR,J.) 465

an application under section 4 could be made in appeal against final A
decree. Now it must be kept in view that the learned Judge was not directly
concerned with a situation which arises in the present case. In the case
before the learned judge of the Patna High Court, the question of ap-
plicability of Section 4 of the Act fell for consideration at the stage when
the final decree reached the second appellate stage before the High Court.
B
According to the learned Single Judge, Section 4 could apply even at that
stage. The learned Single Judge, therefore, had no occasion to consider the
further question with which we are concerned. The view propounded by
him cannot be said to have ruled out the applicability of Section 4 beyond
the stage of final decree in a suit for partition. Dr. Ghosh invited our
attention to a decision in Birendra Nath Banerjee v. Smt. Snehalata Devi & c
Am:, A.LR. (1968) Calcutta 380. Even in that case the Division Bench of
the High Court was concerned with the applicability of Section 4 pending
appeal against the final decree for partition. The Division Bench observed
· therein as under :
D
"The right of pre-emption under Section 4 of the Partition Act
is a right given by the statute and on its wording, it subsists so long
as the suit remains pending, or, in other word, so long as the suit
has not been concluded or terminated for an effective final decree
for partition. Therefore, an application claiming pre-emption at a
time when the appeal against final partition decree is pending E
cannot be held barred by limitation on the ground that it has been
filed beyond three years of the passing of the preliminary partition
decree."
I
The aforesaid observation makes it clear that the court was con- F
cerned with the question of limitation in connection with application under
Section 4 of the Act pending the appeal against the final decree and
whether it should be treated as time barred considering the starting point
of preliminary decree. It is true that the Division Bench, in this connection,
observed that the right of pre-emption under Section 4 subsists so long as G
the suit is pending or has not been concluded or terminated by the final
decree for partition. But the said observation cannot be construed to have
excluded the possibility of applicability of Section 4 to a post final decree
stage as such a situation had not arisen for consideration of the court.
However, the decision of the Madras High Court is on the point. Strong
reliance was placed by Dr. Ghosh on the judgment of the Madras High H
466 SUPREME COURT REPORTS [1996) SUPP. 6 S.C.R.

A Court inAbdu/ Satharv.A. Nawab, A.l.R. (1980) Madras 235, In that case
a learned Single Judge, Ratnam, J ., took the view dissenting from the
decisions of the Patna and the Calcutta High Cuurts to which we shall' ·
make a reference presently that Section 4 of the Act cannot be pressed in
service after the final decree for partition is passed. In other words, in
execution proceedings ·Section 4 of the Act cannot apply. As already
B discussed by us earlier Section 4 on its express language cannot be read in
such a truncated fashion. Therefore, the decision of the learned Single
Judge cannot be considered to be lying down good law. On the other hand,
the decisions of the Patna and the Calcutta High Courts to which we shall
now make a reference.
c
In Satya Narayan Chakravwty v. Biswanath Paul & Ors., (1974)
Calcutta Weekly Notes 871, a Division Bench of the Calcutta High Court
observed that so long as the stranger purchaser of decretal rights of one
of the co-owners has not taken possession of his allotted share by execution
D of the said decree, application under Section 4 of the Partition Act is
maintainable. In this connection, it was observed by the Division Bench,
speaking through Laik, J., as under :

"Having considered the scheme of the Partition Act including
its object which is to prevent the introduction of any foreign
E element into the group of family members and its aim which is to
maintain homogeneity in respect of the entire family and par-
ticularly the provisions of section 4 thereof, which does not indicate
a contrary intention and after giving anxious consideration to the
principles laid down but following the principle that the residence
F in a dwelling house of an undivided family should not, if possible
(but not contrary to law), be thrown open to a stranger to the
family and remembering that the terms of section 4 of the Act are
quite general and distinct from a decree passed in a partition suit
and holding further the rule that the executing court should not
go behind the decree, is inapplicable in an application under
G Section 4 of the Partition Act and not ignoring the provisions of
section 44 of the Transfer of property Act and the rules of pre- ·
emption governing the Muhammandans, Buddists, Jews, Romans
and others and agreeing with respect to the dictum of the judicial
committee in 42 IA 10-ILR 37 AM 129 (141) R.C. that .the right
H of pre-emption is a "valuable right" - the object of such· a right
G.GHOSHv. M.M.GHOSH[MAJMUDAR,J.] 467

being the avoidance of a disagreeable stranger (though some may A
think it an archanism and a clog on freedom of contract) the court
held that an application under Section 4 of the Partition Act is
maintainable even after the final decree is passed ..... "

In Boto Krishna Ghose v. Akhoy Kumar Ghose & Ors., A.LR. 37 B
(1950) Calcutta 111, it was held by another Division Bench of the Calcutta
High Court that a dwelling house of an undivided family has a linkage with
the dwelling house which belongs to the family and which is not divided
and that such dwelling house may be owned by members of such family
who need not be joint in mess and that house itself should be undivided
amongst the members of the family who are its owners. The emphasis is C
really on the undivided character of the house, and it is this attributed 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, but they would
still be an undivided family in relation to the dwelling house so long as they D
have not divided it amongst themselves. In this connection, it has been
further observed as follows : -

"If in this state of things a member of the family transfers his
share in the dwelling house to a stranger, the position that arises
is that para 2 of section 44, T.P. Act comes into operation and the E
transferee does not become entitled to joint possession or other
common or part enjoyment of the house, although he would have
the right to enforce a partition of his share. The object of this
provisions is to prevent the instruction of strangers into the family
residence which is allowed to be possessed and enjoyed by the F
members of the family alone in spite of the transfer of a share to
a stranger. The factual position then is that it is still an undivided
dwelling house, the possession and enjoyment of which are con-
fined to the members of the family, the stranger transferee being
debarred by law from exercising his right to joint possession which G
is one of the main incidents of co-ownership of property. Such a
dwelling house can in our opinion still be looked upon as a dwelling
house belonging to an undivided family, because the members of
the family have not divided it amongst themselves and are in sole
enjoyment and possession of it to the exclusion of the stranger
transferee who has only a right to partition. And so long as the H
468 SUPREME COURT REPORTS [1996) SUPP. 6 S.C.R.

A dwelling house has not been completely alienated to strangers as
was the case in Vaman Vishnu v. Vasudeo Norbhat, 23 Born. 73,
successive transfer by other co-sharer members of the family do
not alter the factual position in this respect, because the remaining
member or members of the family have the right to hold exclusive
possession to the exclusion of the stranger alienees. So long as that
B
situation lasts, the dwelling house, in our opinion, continues to be
a dwelling house belonging to an undivided family."

The aforesaid decision also shows that so long as decree for partition of a ·
family dwelling house does not get fully executed and the shares of co-
C owners do not get separated by metes and bounds and the co-owners are
not put in actual possession of their respective shares, the dwelling house
remains to be common dwelling house of joint family and so long as that
attribute remain~, Section 4 would continue to be attracted. We may now
deal with the decision of the Division Bench of the Patna High Court which
D has also directly spoken on the point. In Harendera Nath Mukherjee v.
Shyam Sunder Kuer & Ors. (Supra) Mukharji, J., speaking for the court had
to consider this very question in the light of the scheme of Section 4 of the
Partition Act. It was held that application under Section 4 could be made
at any stage of the suit. Simply because an application had been filed after
the passing of the final decree, it could not be said that it was not
E maintainable on the ground that the executing court could not go behind
the decree. It was not a case of going behind the decree. It was further
observed that. family continued to be undivided qua dwelling house till
possession was delivered to the members of the family in execution of the
final decree for partition and as such, the application under Section 4 was
F maintainable after passing of the final decree and before the possession of
the dwelling house in question was delivered to the stranger transferee.
The aforesaid decisions of the Calcutta High Court in the cases of Satya
Narayan Chakrav01ty (supra) and Boto Krishna Ghose (supra) as well as
the decision of the Division Bench of the Patna High Court in the case of
Harendra Nath Mukherjee (supra) lay down the correct legal position.
G
At this stage, we may note one apprehension voiced by Dr. Ghosh.
It was submitted that if this view regarding applicability of Section 4 is
...
upheld, then it may very well happen that even after the decree for partition
is executed by one of the erstwhile co- owners and his transferee and the
H stranger transferee is actually put in possession of his share by division on
G. GHOSHv. M.M.GHOSH [MATMUDAR,J.] 469

spot by metes and bounds, and thereafter if such a transferee transfers his A
separate share in the dwelling house which has been actually handed over
to him, the co-owner may still file an application under Section 4 of the
Act. This apprehension is totally misconceived. Section 4 in its ap-
plicability, as discussed above, will cover all stages of litigation in a partition
suit from its inception till its termination not only by the final decree for B
partition but also by its complete satisfaction and discharge through the
assistance of the executing court; once that happens the court itself be-
comes functus officio and the litigation will come to an end and the
concerned parties thereafter will occupy the respective portions of the
erstwhile dwelling house as full owners of their portions. The separated
part of the dwelling house in possession of such stranger transferee cannot C
then be treated as a part and parcel of the dwelling house belonging to an
undivided family and at that stage the dwelling house qua such a stranger
would cease to belong to any joint family and it would belong to different
owners occupying their respective portions in a composite building. Mo-
ment the integrity of common dwelling house belonging to undivided family D
is broken by the execution of the final partition decree through the inter-
vention of the court and the proceedings are ended, there would remain
no scope for play of Section 4 of the Act as there would be no subject-mat-
ter of a common dwelling house belonging to an undivided family on which
it could operate.
E
As a result of the aforesaid discussion, it must be held that Section
4 of the Act can validly be pressed· in service by any of the co-owner of the
dwelling house belonging to undivided family pending the suit for partition
till final decree is passed and thereafter even at the stage of execution of
the final decree for partition so long as the execution proceedings have not F
effectively ended and the decree for partition has not been fully executed
and satisfied by putting the share-holders in actual possession of their
respective shares. Beyond that stage, however, Section 4 will go out of
commission.

That leaves out the question as to what final order should be passed G
in these proceedings. As we have upheld the applicability of Section 4 to
the present proceedings the application fded by Respondent No. 1 is held
maintainable and is required to b e processed further. At this stage, on the
aforesaid conclusion to which we have reached, it would be necessary, as
directed by the High Court, to remand the proceedings under Section 4 of H
470 SUPREME COURT REPORTS [1996) SUPP~ 6 S.C.R.

A the Act for being processed further. However, as the proceedings are very
old and are lingering on since so many years in the court, learned counsel
for thy respondents fairly suggested with a view to putting an end to this
litigation that Respondent No. 1 who had moved the application under
Section 4 of the Act in 1986, is prepared to pay Rs. four lakhs to the
appellant in full and final satisfaction of his claim as a donee of the share
B belonging to Smt. Radha Rani. This amount was offered in the light of the
valuation of the share of the appellant in the dwelling house as on
12.12.1986 when that application was, moved. This offer was made by
learned counsel for the respondents in consultation with Respondent No.
1 who was present in the Court. Dr. Ghosh, learned senior counsel for the
C appellant, was also agreeable to the said course being adopted. In our view
this is a fair stand taken by both the parties to put an end to this litigation
which was triggered off as early as on 5.9.1960. It is high time that it reaches
its final terminus at least after 36 years we, therefore, grant application of
Respondent No. 1 under Section 4 of the Partition Act and direct him to
D pay Rs. four lakhs to the appellant in full and final satisfaction of his clait;i
and on payment of Rs. four lakhs by Respondent No. 1 to the appellant,
the appellant shall convey his right, title and interest in the suit house to
Respondent No. 1 as per Section 4 of the Partition Act. Rupees four lakhs
shall be paid by Respondent No. 1 to the appellant by instalments as under:

E 1. Rupees two lakhs will be paid by Respondent No. 1 to the
appellant on or before 31.12,1996.

2. The balance of Rupee two lakhs shall be paid by Respondent No.
1 to the appellant on or before 31.3.1997.
F
It is further directed that in case of default of any of these instal-
ments, the amount remaining due on such default shall become payable by
Respondent No. 1 to the appellant with 18% interest thereon from the date
of this judgment till the payment of such defaulted amount. On payment
of the aforesaid amount of Rs. four lakhs and also subject to payment of
G interest on the requisite amount, in case of default, if any, as aforesaid, the
right, title and interest of the appellant in the suit dwelling house shall
stand transferred in full ownership of Respondent No. 1, the applicant of
Section 4 of the Act and such share shall be treated to have been sold by
the appellant to respondent No. 1. On receipt of the aforesaid sale con-
H sideration, the appellant shall also execute necessary sale document in
G. GHOSH v. M.M. GHOSH [MAIMUDAR,J.) 471

favour of Respondent No. 1 The cost of registration of such sale document A
shall be borne by Respondent No. 1 Thereupon, the application for execu-
tion moved by the appellant shall be treated as closed and the decretal
claim of the appellant qua the judgment-debtors will be treated as fully
satisfied. It is further directed that the concerned parties shall not alienate
or encumber in any manner their respective shares in the joint family
dwelling house till the present order is fully complied with. The concerned
B
parties are directed to carry out the aforesaid directions punctually. The
appeal is accordingly disposed of with no order as to costs in the facts and
circumstances of the case.

v.s.s. Appeal disposed of. C