IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 1ST FEBRUARY 2011 / 12TH MAGHA 1932 SA.No. 971 of 2000(G) -------------------------- AS.187/1992 of II ADDL. DISTRICT COURT, PALAKKAD OS.281/1991 of MUNSIFF COURT, ALATHUR .................... APPELLANT(S):(APPELLANTS/PLAINTIFFS) --------------------------------------------------- 1. C. VIJAYALAKSHMI, D/O. MEENAKSHI AMMA. 2. UMA, D/O. C. VIJAYALAKSHMI 3. SUMA, D/O. C. VIJAYALAKSHMI THE APPELLANTS ARE RESIDING AT PUTHIYANKAM AMSOM, CHUNGATH VEEDU, ALATHUR TALUK, PALAKKAD DISTRICT. BY ADVS. SRI.D.KRISHNA PRASAD SRI.D.NARENDRANATH SRI.JOJI VARGHESE SRI.M.HARI SHARMA SRI.T.P.ELDHOSE RESPONDENT(S):(RESPONDENT/DEFENDANTS) ------------------------------------------------------- AMMINI AMMA, D/O. NANIKUTTY AMMA, MULLASSERI VEEDU, VALLAPPADI DESOM, KODAKARA VILLAGE, MUKUNTHAPURAM TALUK, THRISSUR DISTRICT. ADV. SRI.K.G.BALASUBRAMANIAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28/01/2011, THE COURT ON 01/02/2011 DELIVERED THE FOLLOWING: svs P.BHAVADASAN, J. ------------------------------------- SA No.971 of 2000 ------------------------------------- Dated this the 1st day of February 2011 Judgment The plaintiffs in OS No.281/91 before the Munsiff's Court, Alathur, are the appellants before this Court. They instituted the suit, seeking protection under Section 44 of the Transfer of Property Act, 1882. That was declined by the courts below. 2. The facts absolutely essential for the disposal of the second appeal are as follows : Meenakshi Amma, the mother of the first plaintiff and the grand mother of plaintiffs 2 and 3 obtained the plaint schedule property under the partition deed in their family. Subsequently, the plaintiffs instituted a suit for partition as OS No.86/83 and a preliminary decree was passed in the said suit. No final decree has been passed so far. While so, Meenakshi Amma executed Ext.B3 gift deed in favour of the defendant, gifting her ¼ share in the SA 971/00 2 suit property. Apprehending that the defendant may try to force herself into the dwelling house said to be occupied by the plaintiffs, the suit was laid seeking protection under Section 44 of the Transfer of Property Act, 1882. 3. The suit was resisted by the defendant. It was pointed out by her that the relationship between Meenakshi Amma and the plaintiffs was far from cordial and the affairs of Meenakshi Amma were being looked after by the defendant. Meenakshi Amma was residing in a building in the suit property and the plaintiffs were residing elsewhere. Meenakshi Amma had gifted ¼ share in the house to the defendant and the defendant had accepted the gift. The keys of the house were also handed over to the defendant. There is no justification for the plaintiffs to seek exclusion of the defendant from the joint possession of the house. On the basis of these contentions, she prayed for a dismissal of the suit. 4. On the above pleadings, necessary issues were raised by the trial court. The evidence consists of the SA 971/00 3 testimony of PWs 1 and 2 and documents marked as Exts.A1 to A4 from the side of the plaintiffs. The defendant had DWs 1 to 3 examined and Exts.B1 to B3 marked. Exts.C1 and C2 commissioner's report and plan were also marked. 5. On an evaluation of the evidence, the trial court took the view that the declaration sought for on the basis of Section 44 of the Transfer of Property Act is misconceived and the remedy available to the plaintiffs is to move for passing the final decree and seek protection under Section 4 of the Partition Act. Accordingly, the suit was dismissed. 6. The plaintiff took up the matter in appeal as AS No.187/92 before the District Court, Palakkad. The lower appellate court took the view that since the Kerala Joint Hindu Family System (Abolition) Act, 1975 had come into force on 01.02.1976, from that date onwards, joint tenancy ceased to be in existence and the sharers take the property as tenants in common. Meenakshi Amma was SA 971/00 4 competent to assign her share to the defendant and therefore, the plaintiffs were not entitled to any reliefs. Accordingly, the appeal was also dismissed. Hence the second appeal. 7. Notice is seen issued on the following questions of law raised in the second appeal : 1.Does not a Hindu undivided qua dwelling house continue to be such family notwithstanding the passing of a preliminary decree for partition of such dwelling house and till there is division of the property by metes and bounds. 2.Whether an assignee of a fractional share of a dwelling house belonging to an undivided family, such assignee not being a member of such family, is entitled to be in joint possession of such house along with the members of the undivided family. 3.Is not a member of a Hindu undivided family entitled to resist the claim of a transferee of an undivided share of one of the sharers, to be in joint possession and SA 971/00 5 enjoyment of a dwelling house which belongs to the undivided family. 4.Whether merely by virtue of assignment of an undivided right of a member of the family in respect of a dwelling house, and nothing more, a transferee of such right could claim any right in respect of a dwelling house belonging to such family, without applying for partition and division of the property by metes and bounds. 5.Whether under the facts and circumstances of the case, the courts below were right in their conclusion with regard to the validity or otherwise of Ext.B3 and is not the finding in this behalf vitiated by reason of misreading of the evidence or non-consideration of material evidence. 6.Whether the courts below were right in disposing of the case without framing a specific issue on the cardinal question arising for consideration and without affording an opportunity to adduce evidence centering round such issue.” SA 971/00 6 8. Shri.D.Krishnaprasad, learned counsel for the appellants pointed out that both the courts below have misdirected themselves both on facts and in law and they have not understood the scope and ambit of Section 44 of the Transfer of Property Act. They have been carried away by the fact that the preliminary decree in the partition suit has already been passed. According to the learned counsel, the view of the lower appellate court that after the coming into force of the Kerala Joint Hindu Family System (Abolition) Act, 1975, the plaintiffs cannot seek reliefs under Section 44 of the Transfer of Property Act, is fallacious. According to the learned counsel, Section 44 of the Transfer of Property Act is a protection given to the members of a family against intrusion by an outsider into their dwelling house and that protection cannot be deprived of on the basis of the reasons given by the courts below. It is also pointed out that Section 4 of the Partition Act is complementary to Section 44 of the Transfer of Property Act. Section 4 of the Partition Act is invoked when a suit for SA 971/00 7 partition is laid by the transferee. In the case on hand, there is already a suit for partition in which a preliminary decree is passed. It as after the preliminary decree was passed that Meenakshi Amma had assigned her share to the defendant. Meenakshi Amma is no more. As far as the plaintiffs are concerned, the defendant cannot be treated as a member of the plaintiffs' family. If that be so, unless the defendant obtains her share by metes and bounds in the suit for partition, the defendant cannot interfere with the peaceful possession and enjoyment of the dwelling house by the plaintiffs. In support of the said contention, the learned counsel relied on the decisions reported in Dorab Cawasji Warden v. Coomi Sorab Warden (AIR 1990 SC 867), Ramaswami v. Subramania Pillai (AIR 1967 Madras 156), Rajamma v. Ananthakrishnan Potti (1990 (2) KLT SN 28 Case No.42) and Krishnamoorthy v. Rasool (1991(1) KLT SN 15 Case No.19). SA 971/00 8 9. On the basis of the principle laid down in the above decisions, it was contended that protection ought to have been given to the plaintiffs on the basis of Section 44 of the Transfer of Property Act. 10. Per contra, the learned counsel for the respondent pointed out that neither Section 44 of the TP Act nor Section 4 of the Partition Act is applicable to the facts of the present case. In the case on hand, it was after the preliminary decree was passed that Meenakshi Amma had transferred her share to the defendant. Section 4 of the Partition Act contemplates a situation, where the transferee moves for partition. In such cases, the right of the other sharers to pre-empt the purchase of the house by stranger does not accrue till such stranger transferee sues for partition. In support of the said contention, the learned counsel for the respondent relied on the decisions reported in Gautam Paul v. Debi Rani Paul (2000) 8 SCC 330) and Babulal v. Habib Noorkhan (2000) 5 SCC 662). SA 971/00 9 11. It is not in dispute that the preliminary decree for partition has been passed in which ¼ share over the suit property was allotted to Meenakshi Amma. The suit property consists of 12 cents of land with a building therein. The evidence shows that Meenakshi Amma and the plaintiffs were not on cordial terms and that the plaintiffs were living in a rented house. Meenakshi Amma is no more. 12. In order to understand the controversy involved in this case, it will be useful to refer to Section 44 of the Transfer of Property Act. The said provision reads as follows : “44. Transfer by one co-owner – Where one of two or more co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein,t he 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 SA 971/00 10 possession or other common or part enjoyment of the property and to enforce a partition of the same, bu subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred. Where the transferee of a share of a dwelling house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.” 13. The trial court seems to have taken the view that once a preliminary decree is passed, Section 44 of the Transfer of Property Act has no application. On the other hand, what the appellate court felt was that since the Kerala Joint Hindu Family System (Abolition) Act, 1975, came into force, the said provision can have no application. It must be said that neither of the views can be supported. In the decision reported in Dorab Cawasji Warden v. SA 971/00 11 Coomi Sorab Warden (supra), it was held as follows : 21.We may respectfully state that this is a correct statement of the law. There could be no doubt that the ratio of the decisions rendered under Section 4 of the Partition Act equally apply to the interpretation of the second paragraph of Section 44 as the provisions are complementary to each other and the terms 'undivided family' and 'dwelling house' have the same meaning in both the sections. 22.It is not disputed that prior to 1951, the suit dwelling house belonged to the undivided family of the appellant and his father and they were owning the same as joint tenants. The High Court has relied on a letter dated 12th March, 1951 of the appellant to his father in which he appellant had expressed a desire to retain his share separately so as to enable SA 971/00 12 him to dispose of the same in a manner he choses and also enable his heirs to succeed. In pursuance of this letter, the appellant and his father executed an agreement dated 23rd of August 1951 by which they declared that they have severed their status as joint tenants and that henceforth they were holding the said piece of land and building as tenants in common in equal undivided half shares. In the view of the High Court, this conversion of joint tenancy of an undivided family into a tenancy in common of the members of that undivided family amounts to a division in the family itself with reference to the property and that, therefore, there shall be deemed to have been a partition between the appellant and his father. In support of this conclusion, the High Court also relied on the further fact that subsequent to the death of the father and SA 971/00 13 marriage of Sohrab, the appellant's family and Sohrab's family were occupying different portions of the suit property and enjoying the same exclusively. We are afraid that some notions of co-parcenary property of a Hindu joint family have been brought in which may not be quite accurate in considering section 44, but what is relevant for the purpose of these proceedings was whether the dwelling house belonged to an undivided family. We have already pointed out that even if the family is divided in status in the sense that they were holding the property as tenants in common but undivided qua the property that is the property had not been divided by metes and bounds it would be within the provisions of Section 44 of the Act.” 14. In the decision reported in Ramaswami v. Subramania Pillai (supra), it was held as follows : SA 971/00 14 “In my opinion, the Full Bench decision is authority only for the position that the stranger defendant who does not even claim separation of his share cannot be considered to be a transferee suing for partition under Section 4(1) of the Act. This case is in fact an authority for the position that a transferee could be considered to be one who sues for partition, even though a defendant in a suit for partition, when he claims his share in the suit and prays for allotment of his share. The Full Bench, it must be noticed, refers to the decision of this court in 1949(2) Mad.LJ 639 (AIR 1950 Mad.214). 17.For the purpose of the present case, it is unnecessary to go further. The transferee fourth defendant has himself come out with an application under O.XX Rule 18,CPC for partition of the properties and for passing of a SA 971/00 15 final decree. In the light of the above decisions, he is certainly suing for partition and it will be open to a sharer in the family to buy him off under the provisions of S.4 of the Partition Act. There can be no doubt that the revision petitioner is entitled to buy out the 4th defendant.” 15. In the decision reported in Rajamma v. Ananthakrishnan Potti (supra), it was held as follows : “In view of the provisions contained in S.44 that even after the transferee comes into possession of the property, court can grant an injunction which amounts to a direction for his ejectment. 'Undivided family' must be taken to mean 'undivided qua the dwelling house in question and to be a family which owns the house but has not divided it. The right of pre-emption can be exercised from the date of institution of suit by stranger for partition till final decree therein.” SA 971/00 16 16. In the decision in Krishnamoorthy v. Rasool (1991(1) KLT SN 15 (Case No.19), it was held as follows : “A purchaser form a co-parcener does not get the status of a tenant in common with the other co-parceners. A stranger who purchased a share from one of the family members is not entitled to be put in possession with the other family members. His right is only to sue for partition and to have an equitable right of the allotment of the share of his vendor. S.4 is intended to preserve the integrity of the family dwelling house. It enables the members of the family to keep the dwelling house for themselves as far as possible. The courts are always inclined to give a liberal construction of S.4 so that the object behind it is achieved. The wholesome principle of S.4 is to keep any stranger away from the dwelling house if the SA 971/00 17 family members who owned the dwelling house are willing to keep it to themselves by paying the value of the share to the stranger as determined by the court.” 17. In the decision in Salim v. First Additional Civil Judge, Saharanpur (AIR 1996 Allahabad 342), it was held as follows : “20. Section 53-A operates only against the transfer but not against a co-sharer who was not a party to the transfer nor does it have any effect of superseding Section 44 of the said Act and frustrate the right of co-sharer in a family dwelling house as contemplated in Section 44 of the said Act. The possession even if given pursuant to an agreement does not confer any absolute right to frustrate Section 44 of the said Act. The sale deed having bee executed on 13.1.1992 is hit by section 52 of the said Act. Therefore, by reason of the possession as SA 971/00 18 indicate above, the defendant cannot frustrate the plaintiff's right available under Section 44 of the said Act.” 18. The principles laid down in the above decisions leaves one in no doubt that unless actual physical partition is effected by metes and bounds, the protection available under Section 44 of the Transfer of Property Act remains available to the member of a family occupying a dwelling house. While section 44 of the TP Act deals with the situation which arises even before the partition is sought to be enforced. Section 4 applies in partition suits by transferee, when a partition suit is pending, it is not as if every member of the family is not entitled to protection for residence in the dwelling house. The mere fact that a stranger has obtained shares from one of the shares, it does not enable him to force himself into the dwelling house. It can thus be seen that unless the actual division is effected by metes and bounds, such stranger is not entitled to joint possession or enjoyment of SA 971/00 19 the dwelling house along with other members of the family. 19. In the decision reported in Gautam Paul v. Debi Rani Paul (supra), it was a case where the question considered was with reference to Section 4 of the partition Act. Even in the said case, it was observed as follows : “There is no law which provides that co-sharer must only sell his/her share to another co- sharer. Thus strangers/outsiders can purchase shares even in a dwelling house. Section 44 of the Transfer of Property Act provides that the transferee of a share of 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. Section 44 adequately protects the family members against intrusion by an outsider into th 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 SA 971/00 20 into play. Except for Section 4 of the Partition Act, there is no other law which provides a right to a co-sharer to purchase the share sold to an outsider. Thus before the right of pre-emption, under Section 4, is exercised the conditions laid down therein have to be complied with. 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.” 20. In the decision in Babulal v. Habibnoor Khan (supra) also a similar situation was considered. 21. One must remember that on the gift deed being executed by Meenakshi Amma, the defendant stepped into the shoes of Meenakshi Amma and she became a party to the partition suit. As already noticed, only a preliminary decree has been passed in the suit and the final decree is yet to be passed. It does not appear that SA 971/00 21 anybody has moved for passing the final decree. It is under these circumstances that one has to consider the effect of Section 44 of the TP Act. Obviously, the situation where Section 4 of the Partition Act has not arisen in the facts of the case. It is well settled from the above decisions that Section 4 of the Partition Act is, as of now, not attracted and Section 4 of the Partition Act alone can have application. The latter portion of Section 44 makes it sufficiently clear that a stranger who has been assigned share by a sharer, will not be entitled to joint possession or enjoyment of a house occupied by a member of the family. 22. It is contended on behalf of the respondent that the plaintiffs were not residing in the dwelling house and the commissioner's report would indicate that it has been abundant. 23. It was pointed out by the learned counsel for the appellants that the evidence shows that the relationship between the mother and the daughter was not cordial and the daughter had taken a house on rent for separate SA 971/00 22 residence. But that does not mean that she had no intention to occupy the family house. If that be so, the above argument has no basis. 24. As rightly pointed out by the learned counsel for the appellants, it cannot be said that merely because the plaintiffs were residing in a rented house, that does not mean that they had the intention of abandonment of the dwelling house. One must remember that the major share, i.e., ¾ shares belongs to the plaintiffs. Merely because the dwelling house remained unoccupied for a short period, it does not mean that the plaintiffs had the intention of abandoning the house. Moreover, they were staying in a rented house. Once the mother is no more, it is only natural that the plaintiffs would intend to occupy the house. Under such circumstances, Section 44 of the TP Act comes to their aid. 25. What now remains to be considered is the extent of property to which Section 44 applies. Strictly speaking, Section 44 applies only to the dwelling house SA 971/00 23 and not to the property which is the subject matter of assignment in favour of the stranger. But, as well settled, building takes in appurtenant land also. The defendant is not entitled to joint possession and joint enjoyment of the family house of the plaintiffs till a final decree for partition is passed. It is not necessary in these proceedings to consider whether Section 4 of the Partition Act has to be applied. That question is left open to be decided at the appropriate stage. 26. The result is that this appeal is allowed and the judgment and decree of the courts below are set aside. There will be a decree of permanent prohibitory injunction order, restraining the defendant from interfering with the peaceful possession and enjoyment of the dwelling house by the plaintiffs till an arrangement is made in the final decree proceedings. There will be no order as to costs. P.Bhavadasan, Judge sta SA 971/00 24 SA 971/00 25