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PETITIONER: GHANTESHER GHOSH

       Vs.

RESPONDENT: MADAN MOHAN GHOSH & ORS.

DATE OF JUDGMENT:       18/09/1996

BENCH: MAJMUDAR S.B. (J) BENCH: MAJMUDAR S.B. (J) SINGH N.P. (J)

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      MAJMUDAR, J:      A short  question falls for determination of this Court in this  appeal by special leave against the decision of the Division Bench  of the  High  Court  of  Calcutta  in  Civil Revision  Application  No.2250  of  1987.  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 therein belonging to another erstwhile co-owner of  the said  dwelling house.  The  learned  Second Assistant District  Judge,  Howrah,  before  whom  the  said application was  moved 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 Calcutta 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 residential house  situated at  No.6/1 Ghoshal  Bagan  Lane, Howrah. It was originally owned by one Kalipada Ghosh and on his death  his three  surviving sons,  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 undivided share of  her husband  in the  said dwelling  house. On  the coming into  operation of  the Hindu  Succession Act,  1956, Smt. Radha  Rani became  full owner  of 1/3rd  share of  her deceased husband  in the  said house.  She filed  a suit for partition on 5.9.1960 claiming separation or her 1/3rd share in the  said house  amongst other properties. In the present proceedings, we are concerned only with the aforesaid family dwelling house. The suit was filed against the other two co-

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owners, namely,  Pran Krishna  and Gaur  Mohan.  Ultimately, after the  preliminary decree  a final  decree  came  to  be passed  in   favour  of   Smt.  Radha   Rani  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 actual possession for number of years. In the meanwhile, on 8.10.1979 she executed 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  tc the joint family, filed execution petition on 14.12.1981 for executing the final  decree obtained  by his  predecessor in interest, namely, the  donor Smt.  Radha Rani.  Pending the  execution proceedings taken  out by  the appellant  donee, one  of the judgment-debtors Pran  Krishna,  original  first  defendant, died in  July 1982. In his place, his son present Respondent No.1, Madan  Mohan Ghosh  was brought on record as his legal heir in  the execution  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 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 1/3rd undivided interest of the original  title-holder Smt.  Radha Rani.  The  executing court by  its  order  dated  13.8.1981  dismissed  the  said application 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 that the said petition 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 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 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 :      Dr. Ghosh,  learned senior  counsel for  the appellant, vehemently 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 of  by 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  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. Thareafter, when  execution proceedings  are taken  out  for

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executing 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   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  the stranger transferee  of co-owner’s  right in  a joint family dwelling house  and if  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 order to avoid such a contingency and possible  strife the  legislature in  its    wisdom  had enacted this  provision which  has stood  the test  of  time spread over  more 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  till  the final decree gets fully satisfied by division of 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 functus 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  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 Mukharjee vs.  Shyam Sunder  Kuer &  Ors. (A.I.R. 1973 Patna 142). He  also submitted  that in  a partition suit till the decree gets  fully satisfied  and executed  each  contesting party remains  as good  as a  plaintiff and consequently the beneficial 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  gets   fully  executed  and implemented and  consequently curtain drops on the partition proceedings between the parties for ever.      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 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 of the      house  at   a   valuation   to   be      determined  by   the  Court.   This      provision is  only an  extension of      the privilege  given to  such share      holders by  section 44, paragraph 2      of the  Transfer of  Property  Act,

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    and is  an application  of a  well-      known  rule   which  obtains  among      Muhammadans   everywhere   and   by      custom also  among Hindus  in  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 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  immoveable property legally      competent in  that behalf transfers      his share  of such  property or any      interest  therein,  the  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 property, and      to enforce a partition of the same,      but subject  to the  conditions and      liabilities affecting,  at the date      of  the   transfer,  the  share  or      interest so transferred.      Where the  transferee of a share of      a dwelling  house belonging  to  an      undivided family is not a member of      the family, nothing in this section      shall be  deemed to  entitle him 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 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 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 background  encompassing the  subject that we have to see  what Section  4 of the Act purports to do. Section 4 of the Act provides as under :-      "4.  Partition suit  by  transferee      of  share   in  dwelling-house.-(1)      Where a  share or  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 such transferee, make      a valuation  of such  share in such

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    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.      (2)  If in  any case  described  in      sub section (1) two or more members      of   the    family    being    such      shareholders severally undertake to      buy such  share,  the  Court  shall      follow the  procedure prescribed by      sub-section (2)  of last  foregoing      section."      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      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 he family;      (3)  Such transferee  must sue  for      partition and  separate  possession      of the  undivided share transferred      to him by the concerned co-owner;      (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 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-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  in  the      dwelling house and acccordingly can      be effectively  denied entry in any      part of such family dwelling house      The aforesaid analysis of Section 4 of the Act makes it clear that  there is  no express  provision  indicating  the stage at  which such  application can  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 passed and  before such.  final  decree  is  fully  executed

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whereby the  court becomes  functus officio.  It is trite to observe that  in the  present  case  out  of  the  aforesaid conditions for  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  erstwhile brothers and which  later on came to belong to two undivided brothers along with  the widow of their deceased brother and thus the suit 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 contention  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- tranferee was  a stranger  to the  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 1/3rd undivided share which belonged to his predecessor in title decree-holder Smt. Radha Rani. However, the real  controversy between  the parties  is  whether  the appellant who  is a  stranger transferee  of 1/3rd undivided interest cf 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  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 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-empting co-sharer or co-sharers, as the  case may  be. This right cf pre-emption available to other co-owners  under Section  4 is  obviously  in  further fructification of  the restriction  on such  a transferee as imposed by  Section 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  on  the  words  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 transferee  must file  a suit  for  partition.  The words transferee sues for partition are wider than the words transferee  filing   a  suit  for  partition  .  The  latter phraseology is  conspicuously absent  in  the  section.  The

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Partition  Act   does  not   define  the  words  "suing  for partition". The  connotation of the term "sue" can be better appreciated by  looking at  certain standard  works defining such a  phrase. In Black’s Law Dictionary, Sixth Edition, at page 1432 the meaning of the word "sue is mentioned as under :-      "To commence  or to  continue legal      proceedings  for   recovery  of   a      right;  to   proceed  with   as  an      action, and  follow it  up  to  its      proper  termination;   to  gain  by      legal process".      In Collins  English Dictionary,  1979 Edition,  at page 1452, one of the meaning of the word "sue" has been shown as under:      "to  institute   legal  proceedings      against".   In   Aiyar’s   Judicial      Dictionary, 10th Edition (1988), at      page 980, the word ’sue" is said to      have the following meaning :-      "To  take  only  legal  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  following meanings are ascribed to the word "sue" :-      "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".      In Stroud’s Judicial Dictionary, Fifth Edition, at page 2540, the  words "to  sue"  is  said  to  have  the  meaning generally speaking, or bringing action.      It is, therefore, well-established that the terminology "suing for partition" would not necessarily mean filing of a suit  in   the  first  instance  by  the  transferee.  If  a transferee 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 transferee.  Any legal action taken by anyone for getting  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  while  initiating  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  of 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 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 axiomatic that once  the partition  decree becomes  final,  the  court which passed  the decree does not become functus officio for

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all purposes.  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 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  complied  with  and translated into  reality. Till  that stage  is  reached  the court which  passes  the  decree  does  not  become  totally functus 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 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. In this  connection, it  is also  profitable to 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.  Explanation  VII  to Section ll  of the  Civil Procedure  Code dealing  with  res judicata lays down as under :-      "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 be  construed as      references,  respectively,   to   a      proceeding for the execution of the      decree, question  arising  in  such      proceeding and  a former proceeding      for the execution of that decree."      As per  Order 22  Rule 10,  in cases  of an assignment, 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, nothing in Rules 3, 4  and 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.      Section 52  of the  Transfer of Property Act is another illustration on  the point dealing with the principle of lis 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 terminology "suit" even for covering  the execution  proceedings in  connection 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.      We have  also to  keep in  view the  avowed  beneficial object underlying  the said  provision.  Section  4  of  the

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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 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. 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 outlook and mode of life including food habits and other social  and religious  customs. Entry of such outsider in the  joint family  dwelling house  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 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 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 reaches its terminus for the contesting parties and the curtain drops on the litigation.  Only then the court which passed the decree becomes finally  functus 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  The Interoretation 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..."      Similarly it has been observed at page 96 as under :-      "It is  said to  he the duty of the      judge to  make such construction of      a statute  as  shall  suppress  the      mischief and advance the remedy. 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 s e dwelling House, we must so  construe the  provision as  to make it available at all the  relevant  stages  of  the  litigation  between  the contesting  co-owners   till  the   litigation  reaches  its

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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 separate possession of his undivided  share to which he has become entitled 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  tn   execution  proceedings   as  a transferee of  the decree right of erstwhile plaintiff under the final  decree 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  stilt 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.      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 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 Calcutta 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 other hand, learned counsel for the respondents,  relied upon  the latter  decisions of  the Patna 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 execution 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. vs Kishun Prasad Singh & Ors. (A.I.R. 1941 Patna 4)), Dhavle, J. took the view that an application under Section 4 could be made in appeal against final 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 applicability 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. 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 vs.  Smt. snehalata Devi Anr. (A.I.R. 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 :-      "The  right  of  pre-emption  under

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    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 words,  so long  as the  suit      has   not    been   concluded    or      terminated by  an  effective  final      decree for partition. Therefore, an      application  claiming,  pre-emption      at a  time when  the appeal against      final partition  decree is  pending      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."      The aforesaid observation makes it clear that the court was concerned  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 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 Court in Abdul Sathar vs. AL Nawab (A.I.R. 1980 Madras 225), In that  case a  learned Single  Judge, Ratnam, J., took the view dissenting  from the  decisions of  the Patna  and  the Calcutta High  Courts 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  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  ba laying  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.      In Satya  Narayan Chakravarty vs. 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 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 element      into the  group of  family  members      and its  aim which  is to  maintain      homogeneity  in   respect  of   the      entire family  and particularly 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

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    principle that  the residence  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  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,      Buddhists, 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 of pre-emption is a      "valuable right"  - the  object  of      such a right being the avoidance of      a  disagreeable   stranger  (though      some may think it an archaism 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  vs. Akhoy  Kumar Ghose  &  Ors. (A.I.R. (37)  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  really on  the  undivided character of  the house,  and it  is this  attribute of  the house which  imparts to  the  family  its  character  of  an undivided family.  For the  members of  the family  may have partitioned all  their other  joint properties  and may have separated in  mess and  worship, but  they would still be an undivided family  in relation  to the dwelling house so long as they  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      that para 2 of section 44, T.P. Act      comes  into   operation   and   the      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 provision is to      prevent the  intrusion of strangers      into the  family residence which is      allowed to be possessed and enjoyed      by the  members of the family alone

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    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 confined  to the members of the      family,  the   stranger  transferee      being   debarred    by   law   from      exercising  his   right  to   joint      possession which 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 dwelling house has not      been  completely     alienated   to      strangers as  was the case in Vaman      Vishnu vs. Vasudeo Norbhat, 23 Bom.      73, successive  transfers 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      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-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 remains,  section  4 would continue  to ba  attracted. We  may now  deal with the decision of the Division Bench of the Patna High Court which has also  directly spoken  on the  point. In  Harendra  Nath Mukharjee vs. 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 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 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 Chakravarty (supra) and Boto Krishna  Ghose (supra)  as well  as the decision of the

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Division Bench  of the  Patna High  Court  in  the  case  of Harendra Nath  Mukharjee (supra)  lay down the correct legal position.      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 stranger transferee  is actually  put in  possession of  his share  by   division  on  spot  by  metes  and  bounds,  and thereafter if such a transferee transfers his 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 applicability, 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  partition  but  also  by  its  complete satisfaction and  discharge through  the assistance  of  the executing court;  once that happens the court itself becomes 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  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. Momemt the  integrity   of  common   dwelling  house  belonging  to undivided family  is broken  by the  execution of  the final partition decree  through the  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.      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-owners  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 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 in these proceedings. As we have upheld the applicability of  Section 4  to the  present proceedings the application filed  by Respondent  No.1 is  held maintainable and is  required to  be 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 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  the 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 belonging  to Smt. Radha Rani. This amount was offered in the  light of the valuation of the share of the appellant

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in the dwelling house as on 12.12.1985 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 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  pay Rs.four  lakhs to the appellant in full and final satisfaction of his claim 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 :-      1.   Rupees two  lakhs will be paid      by Respondent No.1 to the appellant      on or before 31 .12.1996.      2.   The  balance   of  Rupees  two      lakhs shall  be paid  by Respondent      No.1 to  the appellant on or before      31.3.1997.      It is  further directed  that in case of default of any of these  instalments, the  amount  remaining  due  on  such default shall  become payable  by  Respondent  No.1  to  the appellant with  18% interest  thereon from  the date cf this judgment till the payment of such default amount. On payment of the aforesaid amount of Rs.four lakhs and also subject to payment of  interest on  the requisite  amount, in  case  of default, if any, as eforesaid, 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 consideration, the appellant shall  also execute  necessary  sale  document  in favour of  Respondent No.1. The cost of registration of such sale document  shall be borne by Respondent No.1. Thereupon, the application  for execution  moved by the appellant shall be treated as closed and the decratal 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 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.