{"id":120803,"date":"1996-09-18T00:00:00","date_gmt":"1996-09-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ghantesher-ghosh-vs-madan-mohan-ghosh-ors-on-18-september-1996"},"modified":"2015-03-13T04:18:28","modified_gmt":"2015-03-12T22:48:28","slug":"ghantesher-ghosh-vs-madan-mohan-ghosh-ors-on-18-september-1996","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ghantesher-ghosh-vs-madan-mohan-ghosh-ors-on-18-september-1996","title":{"rendered":"Ghantesher Ghosh vs Madan Mohan Ghosh & Ors on 18 September, 1996"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Ghantesher Ghosh vs Madan Mohan Ghosh & Ors on 18 September, 1996<\/div>\n
Author: M S.B.<\/div>\n
Bench: Majmudar S.B. (J)<\/div>\n
           PETITIONER:\nGHANTESHER GHOSH\n\n\tVs.\n\nRESPONDENT:\nMADAN MOHAN GHOSH & ORS.\n\nDATE OF JUDGMENT:\t18\/09\/1996\n\nBENCH:\nMAJMUDAR S.B. (J)\nBENCH:\nMAJMUDAR S.B. (J)\nSINGH N.P. (J)\n\n\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t\t      J U D G M E N T
\n     MAJMUDAR, J:\n<\/p>\n
     A short  question falls for determination of this Court
\nin this\t appeal by special leave against the decision of the
\nDivision Bench\tof the\tHigh  Court  of\t Calcutta  in  Civil
\nRevision  Application  No.2250\tof  1987.  The\tquestion  is
\nwhether Section\t 4 of  the Partition  Act, 1893 (hereinafter
\nreferred to  as ‘the  Act’) can\t be pressed  in\t service  in
\nexecution proceedings  arising out  of a  final\t decree\t for
\npartition, by  one of  the co-owners  of  a  dwelling  house
\nbelonging  to\tan  undivided\tfamily\tagainst\t a  stranger
\ntransferee of a share therein belonging to another erstwhile
\nco-owner of  the said  dwelling house.\tThe  learned  Second
\nAssistant District  Judge,  Howrah,  before  whom  the\tsaid
\napplication was\t moved took  the view  that Section 4 of the
\nPartition Act  could not  be pressed  in service against the
\nstranger purchaser  of such  share. The\t said view  was\t not
\naccepted by the Division Bench of the High Court of Calcutta
\nby the impugned judgment.\n<\/p>\n
     In order  to appreciate  the correct  contours  of\t the
\ncontroversy in\trespect of  the aforesaid  question,  it  is
\nnecessary to  glance through  a few background facts leading
\nto  the\t  proceedings.\tThe   premises\tin  question  are  a
\nresidential house  situated at\tNo.6\/1 Ghoshal\tBagan  Lane,
\nHowrah. It was originally owned by one Kalipada Ghosh and on
\nhis death  his three  surviving sons,  namely, Pran Krishna,
\nGour Mohan  and Kamal  Krishna became  owners of 1\/3rd share
\neach. On 7.9.1948, Kamal Krishna died leaving behind him his
\nwidow Smt.  Radha Rani.\t Thus, she inherited 1\/3rd undivided
\nshare of  her husband  in the  said dwelling  house. On\t the
\ncoming into  operation of  the Hindu  Succession Act,  1956,
\nSmt. Radha  Rani became\t full owner  of 1\/3rd  share of\t her
\ndeceased husband  in the  said house.  She filed  a suit for
\npartition on 5.9.1960 claiming separation or her 1\/3rd share
\nin the\tsaid house  amongst other properties. In the present
\nproceedings, we are concerned only with the aforesaid family
\ndwelling house. The suit was filed against the other two co-
\nowners, namely,\t Pran Krishna  and Gaur\t Mohan.\t Ultimately,
\nafter the  preliminary decree  a final\tdecree\tcame  to  be
\npassed\tin   favour  of\t  Smt.\tRadha\tRani  on  31.8.1971.
\nAccordingly, she became entitled to partition and separation
\nof her\t1\/3rd share  in the said dwelling house. She made an
\nabortive attempt  to  get  the\tfinal  decree  executed\t but
\ntherein she  did not get any relief of actual possession for
\nnumber of years. In the meanwhile, on 8.10.1979 she executed
\nand got\t registered a deed of gift in favour of her brother,
\nthe present  appellant, gifting her 1\/3rd undivided interest
\nin the said dwelling house as decreed to her pursuant to the
\nfinal decree  for partition.  Armed with that gift deed, the
\nappellant-donee who  obviously was  a stranger\ttc the joint
\nfamily, filed execution petition on 14.12.1981 for executing
\nthe final  decree obtained  by his  predecessor in interest,
\nnamely, the  donor Smt.\t Radha Rani.  Pending the  execution
\nproceedings taken  out by  the appellant  donee, one  of the
\njudgment-debtors Pran  Krishna,\t original  first  defendant,
\ndied in\t July 1982. In his place, his son present Respondent
\nNo.1, Madan  Mohan Ghosh  was brought on record as his legal
\nheir in\t the execution\tproceedings. The  executing court by
\nits order  dated 17.1  1985 issued  a writ  of possession by
\nappointing a  Pleader Commissioner  to undertake the task of
\nsuggesting partition  of the suit house by metes and bounds.
\nThen in\t September 1985,  pending the  execution proceedings
\noriginal judgment  debtor Defendant  No.2  Gaur\t Mohan\talso
\ndied. It  appears that\tthereafter the real contest remained
\nbetween the appellant on the one hand and Respondent No.1 on
\nthe  other.   Respondent  No.1\t filed\tan   application  on
\n12.12.1986 before the executing court under Section 4 of the
\nAct for\t enforcing his\tclaim  of  pre-emption\tagainst\t the
\nappellant stranger transferee of 1\/3rd undivided interest of
\nthe original  title-holder Smt.\t Radha Rani.  The  executing
\ncourt by  its  order  dated  13.8.1981\tdismissed  the\tsaid
\napplication of\tRespondent No.1\t on the ground that the said
\napplication was\t not maintainable after the final decree was
\npassed in  the partition  suit. As  stated earlier, the said
\nview of the executing court was not approved by the Division
\nBench  of   the\t Calcutta   High  Court\t  in  the   revision
\napplication. It\t took the  view that the said petition under
\nthe Act\t was maintainable  as still the final decree had not
\ngot fully executed and satisfied by actual division of the
\nproperty  by   metes  and  bounds  and\tdelivery  of  actual
\npossession to  the stranger transferee who had taken out the
\nexecution proceedings.\tBy its\torder dated  17.12.1990, the
\nHigh Court  directed the  executing court  to dispose of the
\napplication of Respondent No.1 under Section 4 of the Act on
\nmerits\twith  a\t further  direction  to\t complete  the\tsaid
\nproceedings within  six months. It is the aforesaid order of
\nthe High  Court which is challenged in the present appeal by
\nspecial leave, as noted earlier.\n<\/p>\n
     RIVAL CONTENTIONS :\n<\/p>\n
     Dr. Ghosh,\t learned senior\t counsel for  the appellant,
\nvehemently contended that on the express language of Section
\n4 of  the Act,\tthe application moved by Respondent No.1 was
\nnot  maintainable.   Dr.  Ghosh\t relied\t upon  a  number  of
\ndecisions which\t had taken  the view  canvassed by  him. His
\nsubmission in  short was  that Section\t4 of  the Act can be
\navailed of  by any  of the  parties to the litigation in the
\npartition suit\ttill its culmination into a final decree for
\npartition. That\t even during  the appeal  against the  final
\ndecree Section\t4 can  be pressed  in service. That once the
\nfinal decree  comes to\tbe passed and gets finally confirmed
\nby the\tultimate court\tof appeal  the suit comes to an end.
\nThareafter, when  execution proceedings\t are taken  out\t for
\nexecuting such\tfinal decree,  Section 4 of the Act would be
\nout of\tpicture and cannot be pressed in service against the
\nstranger transferee of the decretal rights of one of the co-
\nowners\tin   the  family   dwelling  house.  Dr\t Ghosh\talso
\nvehemently tried  to submit that the finding reached by both
\nthe courts  below that\tthe suit  property  consisted  of  a
\nfamily dwelling house and was not an open land, was also not
\nsustainable. On\t the other  hand, learned  counsel  for\t the
\nrespondents  submitted\t that  Section\t4  is  a  beneficial
\nprovision which\t seeks to  avoid  the  interference  by\t the
\nstranger transferee  of co-owner’s  right in  a joint family
\ndwelling house\tand if\tsuch strangers are permitted to come
\ninto possession\t of any\t part of  such dwelling\t house,\t the
\npeace and tranquility of the rest of the occupant members of
\nthe joint  family would be order to avoid such a contingency
\nand possible  strife the  legislature in  its\t wisdom\t had
\nenacted this  provision which  has stood  the test  of\ttime
\nspread over  more than\ta century and there was no reason to
\nrestrict the  application of  such a benevolent section only
\nupto the  stage of  final  decree  and\tnot  during  further
\nproceedings in\texecution  of  such  final  decree.  It\t was
\nsubmitted that beneficial provision of Section 4 can rightly
\nbe made\t applicable during  execution proceedings  till\t the
\nfinal decree gets fully satisfied by division of property by
\nmetes and  bounds and  by actual  delivery of  possession of
\nrespective portions  of the  joint family  dwelling house to
\nthe concerned  shares. It  is only  at that  stage that\t the
\nexecuting court would become functus officio. That till that
\nstage is  reached Section  4 of\t the Act can be legitimately
\npressed\t in  service  by  any  of  the\tremaining  co-owners
\nclaiming pre-emptive  right to\tpurchase the  share  of\t the
\nstranger transferee  from  one\tof  the\t co-owners.  Learned
\ncounsel also  in his  turn relied  upon a  decision  of\t the
\nDivision Bench\tof the\tPatna High  Court in  Harendra\tNath
\nMukharjee vs.  Shyam Sunder  Kuer &  Ors. (A.I.R. 1973 Patna\n<\/p>\n
142). He  also submitted  that in  a partition suit till the
\ndecree gets  fully satisfied  and executed  each  contesting
\nparty remains  as good\tas a  plaintiff and consequently the
\nbeneficial provision  of Section 4 can be pressed in service
\nby any\tof the contesting co-owners till the final decree in
\nsuch  a\t  suit\tfor   partition\t gets\tfully  executed\t and
\nimplemented and\t consequently curtain drops on the partition
\nproceedings between the parties for ever.\n<\/p>\n
     It is in the background of these rival contentions that
\nwe address  ourselves to the consideration of this question.
\nBefore we  refer to the cleavage of judicial opinion amongst
\ndifferent High Courts on the scope and ambit of Section 4 of
\nthe Act,  it would  be profitable  to have  a  look  at\t the
\nprovision itself.  The Statement  of Objects and Reasons for
\nenacting the Partition Act, 1893 amongst others, provided as
\nunder :\n<\/p>\n
     “It is also proposed in the Bill to
\n     give  the\t Court\tthe   power   of
\n     compelling\t a   stranger,\twho  has
\n     acquired by  purchase a  share in a
\n     family dwelling-house when he seeks
\n     for a  partition, to sell his share
\n     to the  members of\t the family  who
\n     are the  owners of\t the rest of the
\n     house  at\t a   valuation\t to   be
\n     determined\t by   the  Court.   This
\n     provision is  only an  extension of
\n     the privilege  given to  such share
\n     holders by\t section 44, paragraph 2
\n     of the  Transfer of  Property  Act,
\n     and is  an application  of a  well-
\n     known  rule   which  obtains  among
\n     Muhammadans   everywhere\tand   by
\n     custom also  among Hindus\tin  some
\n     parts of the country.”<\/p><\/blockquote>\n
     It is  obvious that  the Act  intended  to\t extend\t the
\nprivilege already  available to\t a  co-sharer  in  a  family
\ndwelling house as per Section 44 of the Transfer of Property
\nAct, 1882  (hereinafter\t referred  to  as  the\tT.P.  Act’).
\nSection 44 of the T P. Act dealing with cases of transfer by
\none of the co-owners of immoveable property, reads as under:\n<\/p>\n
     “44. Transfer  by\tone  co-owner  –
\n     Where one\tof two or more co-owners
\n     of the  immoveable property legally
\n     competent in  that behalf transfers
\n     his share\tof such\t property or any
\n     interest  therein,\t the  transferee
\n     acquires,\tas   to\t such  share  or
\n     interest,\tand   so   far\t as   is
\n     necessary to  give\t effect\t to  the
\n     transfer, the transferor’s right to
\n     joint possession or other common or
\n     part enjoyment of the property, and
\n     to enforce a partition of the same,
\n     but subject  to the  conditions and
\n     liabilities affecting,  at the date
\n     of\t the   transfer,  the  share  or
\n     interest so transferred.
\n     Where the\ttransferee of a share of
\n     a dwelling\t house belonging  to  an
\n     undivided family is not a member of
\n     the family, nothing in this section
\n     shall be  deemed to  entitle him to
\n     joint possession or other common or
\n     part  enjoyment   of  the\t house”.<\/p><\/blockquote>\n
     It is  obvious that  by the  time the  Act came  to  be
\nenacted,    the legislature had in view the aforesaid parent
\nprovision engrafted  in section\t 44 of\tthe T.P.  Act to the
\neffect that  a\tstranger  to  the  family  who\tbecomes\t the
\ntransferee of  an undivided share of one of the co owners in
\na dwelling  house belonging  to undivided  family could\t not
\nclaim  a  right\t of  joint  possession\tor  common  or\tpart
\nenjoyment of  the house with other co-owners of the dwelling
\nhouse. Implicit\t in the provision was the legislative intent
\nthat such  stranger should  be kept  away  from\t the  common
\ndwelling house\toccupied by other co-sharers. It was enacted
\nwith the  avowed object\t of ensuring  peaceful enjoyment of,
\nthe common  dwelling house  by the remaining co-owners being
\nmembers of  the same  family sharing  a common hearth and or
\nhome. It  is in\t the light  of\tthe  aforesaid\tpre-existing
\nstatutory background  encompassing the\tsubject that we have
\nto see\twhat Section  4 of the Act purports to do. Section 4
\nof the Act provides as under :-\n<\/p>\n
     “4.  Partition suit  by  transferee
\n     of\t share\t in  dwelling-house.-(1)
\n     Where a  share or\ta dwelling-house
\n     belonging to  an  undivided  family
\n     has been  transferred to  a  person
\n     who is  not a member of such family
\n     and  such\t transferee   sues   for
\n     partition, the  Court shall, if any
\n     member  of\t  the  family\tbeing  a
\n     shareholder shall\tundertake to buy
\n     the share\tof such transferee, make
\n     a valuation  of such  share in such
\n     manner as\tit thinks fit and direct
\n     the sale  of  such\t share\tto  such
\n     shareholder,  and\t may  give   all
\n     necessary and  proper directions in
\n     that behalf.<\/p><\/blockquote>\n
     (2)  If in\t any case  described  in
\n     sub section (1) two or more members
\n     of\t  the\t family\t   being    such
\n     shareholders severally undertake to
\n     buy such  share,  the  Court  shall
\n     follow the\t procedure prescribed by
\n     sub-section (2)  of last  foregoing
\n     section.”<\/p><\/blockquote>\n
     A mere  look at  the aforesaid provision shows that for
\nits applicability  at any  stage of  the proceedings between
\nthe contesting\tparties, the  following conditions  must  be
\nsatisfied:\n<\/p>\n
     (1)  A  co-owner  having  undivided
\n     share in  the family dwelling house
\n     should  effect   transfer\tof   his
\n     undivided interest therein;\n<\/p><\/blockquote>\n
     (2)  The\ttransferee    of    such
\n     undivided interest\t of the co-owner
\n     should be\tan outsider  or stranger
\n     to he family;\n<\/p><\/blockquote>\n
     (3)  Such transferee  must sue  for
\n     partition and  separate  possession
\n     of the  undivided share transferred
\n     to him by the concerned co-owner;
\n     (4)  As against such a claim of the
\n     stranger transferee,  any member of
\n     the family\t having undivided  share
\n     in the  dwelling house  should  put
\n     forward his claim of pre-emption by
\n     undertaking to buy out the share of
\n     such transferee; and
\n     (5)  While accepting  such a  claim
\n     for pre-emption by the existing co-<\/p><\/blockquote>\n
     owner   of\t  the\tdwelling   house
\n     belonging to  the undivided family,
\n     the court\tshould make  a valuation
\n     of the  transferred share belonging
\n     to the stranger transferee and make
\n     the claimant co-owner pay the value
\n     of the  share of  the transferee so
\n     as to  enable the claimant co-owner
\n     to purchase  by way  of pre-emption
\n     the said  transferred share  of the
\n     stranger transferee in the dwelling
\n     house belonging  to  the  undivided
\n     family   so   that\t  the\tstranger
\n     transferee can  have no  more claim
\n     left  for\tpartition  and\tseparate
\n     possession\t of  his  share\t in  the
\n     dwelling house and acccordingly can
\n     be effectively  denied entry in any
\n     part of such family dwelling house
\n     The aforesaid analysis of Section 4 of the Act makes it
\nclear that  there is  no express  provision  indicating\t the
\nstage at  which such  application can  be moved\t against the
\nstranger transferee of the share of an erstwhile co-owner of
\ndwelling house\tof undivided  family. Consequently,  on\t the
\nlanguage of  Section 4, it cannot be urged that it cannot be
\npressed in  service after  the final decree for partition is
\npassed and  before such.  final\t decree\t is  fully  executed
\nwhereby the  court becomes  functus officio.  It is trite to
\nobserve that  in the  present  case  out  of  the  aforesaid
\nconditions for\tapplicability of  Section 4, save and except
\nthe condition  regarding the  stranger transferee  suing for
\npartition which\t is the subject-matter of fierce controversy
\nbetween\t the  parties,\tall  the  remaining  conditions\t are
\nsatisfied. In  other words, there is well established on the
\nrecord of  the case that the suit house was a dwelling house
\nbelonging to  undivided family\tof three  erstwhile brothers
\nand which  later on came to belong to two undivided brothers
\nalong with  the widow of their deceased brother and thus the
\nsuit house  was a  dwelling  house  belonging  to  undivided
\nfamily. Dr. Ghosh, learned senior counsel for the appellant,
\nfaintly tried  to submit  that both the courts below were in
\nerror in  holding that\tthe suit  property  consisted  of  a
\ndwelling house\tand  not  open\tland.  As  both\t the  courts
\nconcurrently found  it to  be a\t dwelling house belonging to
\nundivided family,  this contention  is no  longer  open\t for
\nadjudication at\t this stage.  We, therefore,  proceed on the
\nbasis that  the suit  house is a dwelling house belonging to
\nundivided family.  It is  also not  in dispute\tbetween\t the
\nparties that 1\/3rd interest of one of the co-owners, namely,
\nSmt. Radha  Rani, who  had got final decree for partition in
\nher favour,  was  transferred  by  gift\t in  favour  of\t the
\nappellant after\t the  final  decree  and  that\tsuch  donee-
\ntranferee was  a stranger  to the  family as  he was  not  a
\nmember of  the said  family. It\t is also not in dispute that
\nRespondent No.1 by way of application under Section 4 of the
\nAct undertook to buy out the share of the appellant stranger
\ntransferee being 1\/3rd undivided share which belonged to his
\npredecessor in title decree-holder Smt. Radha Rani. However,
\nthe real  controversy between  the parties  is\twhether\t the
\nappellant who  is a  stranger transferee  of 1\/3rd undivided
\ninterest cf Smt Radha Rani in the suit property ?can be said
\nto have\t sued for  partition so\t as to satisfy the remaining
\ncondition of the said provision.\n<\/p>\n
     In order  to answer  this moot  question, it  has to be
\nkept in\t view what  the legislature  intended while enacting
\nthe Act\t and specially\tSection 4  thereof. The\t legislative
\nintent as reflected by the Statement of Objects and Reasons,
\nas noted  earlier,  makes  it  clear  that  the\t restriction
\nimposed on  a stranger\ttransferee of a share-of one or more
\nof the\tco-owners in  a dwelling  house by Section 44 of the
\nT.P. Act is tried to be further extended by Section 4 of the
\nPartition Act  with a  view to\tseeing that  such transferee
\nwashes his  hands off  such a family dwelling house and gets
\nsatisfied with\tthe proper valuation of his share which will
\nbe paid\t to him\t by the pre-empting co-sharer or co-sharers,
\nas the\tcase may  be. This right cf pre-emption available to
\nother co-owners\t under Section\t4 is  obviously\t in  further
\nfructification of  the restriction  on such  a transferee as
\nimposed by  Section 44\tof the\tT.P. Act.  It is  true\tthat
\namongst\t other\t conditions,  Section  4  requires  for\t its
\napplicability that  such stranger  transferee must  sue\t for
\npartition and  only in\tthat eventuality  the right  of pre-
\nemption envisaged  by Section 4 can be made available to the
\nother  contesting   Co-owners.\tIn  this  connection,  great
\nemphasis  was\tplaced\tby  Dr.\t Ghosh\ton  the\t words\tsuch
\ntransferee sues\t for partition\tas employed  by\t Section  4.
\nHowever, it  has to  be noted  that this  section  does\t not
\nprovide as  a condition\t for  its  applicability  that\tsuch
\nstranger transferee  must file\ta suit\tfor  partition.\t The
\nwords transferee sues for partition are wider than the words
\ntransferee  filing   a\tsuit  for  partition  .\t The  latter
\nphraseology is\tconspicuously absent  in  the  section.\t The
\nPartition  Act\t does  not   define  the  words\t “suing\t for
\npartition”. The\t connotation of the term “sue” can be better
\nappreciated by\tlooking at  certain standard  works defining
\nsuch a\tphrase. In Black’s Law Dictionary, Sixth Edition, at
\npage 1432 the meaning of the word “sue is mentioned as under
\n:-\n<\/p>\n
     “To commence  or to  continue legal
\n     proceedings  for\trecovery  of   a
\n     right;  to\t  proceed  with\t  as  an
\n     action, and  follow it  up\t to  its
\n     proper  termination;   to\tgain  by
\n     legal process”.<\/p><\/blockquote>\n
     In Collins\t English Dictionary,  1979 Edition,  at page
\n1452, one of the meaning of the word “sue” has been shown as
\nunder:\n<\/p>\n
     “to  institute   legal  proceedings
\n     against”.\t In   Aiyar’s\tJudicial
\n     Dictionary, 10th Edition (1988), at
\n     page 980, the word ‘sue” is said to
\n     have the following meaning :-
\n     “To  take\tonly  legal  proceedings
\n     against one”.<\/p><\/blockquote>\n
     It is  further observed  that the\tword  is  used\tmost
\nexclusively to prosecute a civil action against one.\n<\/p>\n
     In Concise\t Oxford Dictionary, Seventh Edition, at page
\n1066, the  following meanings are ascribed to the word “sue”
\n:-\n<\/p>\n
     “1.  institute  legal   proceedings
\n     against (person);\tmake application
\n     to or  to law  court  for\tredress;
\n     make petition  in law court for and
\n     obtain (writ pardon etc.);\n<\/p><\/blockquote>\n
     2.\t  entreat     (person);\t    make
\n     entreaty to (person) for a favour”.<\/p><\/blockquote>\n
     In Stroud’s Judicial Dictionary, Fifth Edition, at page
\n2540, the  words “to  sue”  is\tsaid  to  have\tthe  meaning
\ngenerally speaking, or bringing action.\n<\/p>\n
     It is, therefore, well-established that the terminology
\n“suing for partition” would not necessarily mean filing of a
\nsuit  in   the\tfirst  instance\t by  the  transferee.  If  a
\ntransferee seeks  to execute  any final decree for partition
\nin favour of his transferor co-owner, he can be said to have
\ninitiated a legal action for redressal of his decretal right
\nas a  stranger transferee.  Any legal action taken by anyone
\nfor getting  redressal from  a law court and for vindicating
\nhis legal right on which such action is based can be said to
\nhave sued  in a\t court of law. It cannot, therefore, be said
\nthat a\tpurchaser of  decretal rights  flowing from  a final
\ndecree\tfor   partition\t while\tinitiating  proceedings\t for
\nexecution of  that decree  against the\tjudgment-debtors who
\nare co-sharers\tin the\tproperty sought to be partitioned by
\nmetes and  bounds, is not suing for partition by getting the
\nsaid decree  executed through  a Court\tof law. If the words
\n“transferee suing  for partition  are  given  a\t restrictive
\nmeaning, namely,  that he  can\tbe  said  to  be  suing\t for
\npartition only upto the stage of final decree in such a suit
\nfor partition  then the\t wide phraseology advisedly employed
\nby the\tlegislature in\tthe section would be deprived of its
\nreal laudable  object and  content .  It is trite to observe
\nthat till  the final  decree for partition of a co-ownership
\nproperty   culminates\t into\tits   full   discharge\t and
\nsatisfaction, the  lis between the contesting parties cannot
\nbe said\t to have  come to  a final end. It is also axiomatic
\nthat once  the partition  decree becomes  final,  the  court
\nwhich passed  the decree does not become functus officio for
\nall purposes.  On the  contrary, its  role remains effective
\ntill the  decree  passed  by  it  gets\tfully  executed\t and
\nimplemented.  It   is  for   this  very\t  purpose  that\t the
\nlegislature has\t provided as  per Section  38 of  the  Civil
\nProcedure Code\tthat a\tdecree may  be executed by the court
\nwhich passed  it, or  by the  court to\twhich it is sent for
\nexecution. Therefore,  it is  the duty\tof the\tcourt  which
\npasses the  decree to get it executed when called upon to do
\nso with\t a view\t to seeing  that the  rights and obligations
\nflowing from  such decree  get\tfinally\t complied  with\t and
\ntranslated into\t reality. Till\tthat stage  is\treached\t the
\ncourt which  passes  the  decree  does\tnot  become  totally
\nfunctus officio and the litigation between parties cannot be
\nsaid to\t have ended  finally. Under  these circumstances, it
\ncannot be  said that  a decree-holder in a partition suit or
\nhis transferee\twho is\tarmed with  the\t plaintiff’s  rights
\npending such  suit or  even after  the passing\tof the final
\ndecree as  transferee  of  decretal  rights  when  he  seeks
\nexecution is  not suing\t for partition\tor is not entreating
\nthe  court  for\t its  assistance  to  get  his\tright  fully
\nvindicated as  per the claim in the suit and decree therein.
\nIn this\t connection, it\t is also  profitable to keep in view
\nthe legislative intent underlying various provisions of the
\nCode  of   Civil  Procedure   which  shows   that  in  given
\ncircumstances the  proceedings in the suit can be treated to
\ninclude\t even  execution  proceedings.\tExplanation  VII  to
\nSection ll  of the  Civil Procedure  Code dealing  with\t res
\njudicata lays down as under :-\n<\/p>\n
     “Explanation VII.-The provisions of
\n     this  section   shall  apply  to  a
\n     proceeding for  the execution  of a
\n     decree  and   references  in   this
\n     section  to   any\tsuit,  issue  or
\n     former suit  shall be  construed as
\n     references,  respectively,\t  to   a
\n     proceeding for the execution of the
\n     decree, question  arising\tin  such
\n     proceeding and  a former proceeding
\n     for the execution of that decree.”<\/p><\/blockquote>\n
     As per  Order 22  Rule 10,\t in cases  of an assignment,
\ncreation or  devolution of  any interest during the pendency
\nof a  suit, the suit may by leave of the court, be continued
\nby or  against the  person to or upon whom such interest has
\ncome or\t devolved. As per Order 22 Rule 12, nothing in Rules
\n3, 4  and 8  shall apply  to proceedings  in execution\tof a
\ndecree or   order meaning thereby that Order 22 Rule 10 will
\napply to  execution  proceedings  whereby  the\tsame  scheme
\nregarding devolution of interest of either party in the suit
\nis made applicable even to execution proceedings.\n<\/p>\n
     Section 52\t of the\t Transfer of Property Act is another
\nillustration on\t the point dealing with the principle of lis
\npendens. The  explanation to the said section indicates that
\nthe pendency  of a  suit would encompass the stage after the
\nfinal decree  till complete  satisfaction and  discharge  of
\nsuch  decree  or  order.  It  is,  therefore,  obvious\tthat
\nlegislature for\t different contingencies  has thought it fit
\nto extend the scope and ambit of the terminology “suit” even
\nfor covering  the execution  proceedings in  connection with
\ndecrees passed\tin such\t suits. As  we\thave  seen  earlier,
\nSection 4 of the Act has also advisedly used the terminology
\n“sues for partition” and has not confined it only to suits
\nfiled by  stranger transferee for applicability of Section 4
\nof the Act.\n<\/p>\n
     We have  also to  keep in\tview the  avowed  beneficial
\nobject underlying  the said  provision.\t Section  4  of\t the
\nPartition  Act\t read  with  Section  44  of  the  T.P.\t Act
\nrepresents a well knit legislative scheme for insulating the
\ndomestic peace\tof members  of undivided  family occupying a
\ncommon dwelling\t house from  the encroachment  of a stranger
\ntransferee of  the share  of one  undivided co-owner  as the
\nremaining  co-owners   are  presumed   to   follow   similar
\ntraditions  and\t mode  of  life\t and  to  be  accustomed  to
\nidentical  likes   and\t dislikes   and\t  identical   family
\ntraditions. This  legislative scheme  seeks to\tprotect them
\nfrom the  onslaught on\ttheir peaceful\tjoint family life by
\nstranger-outsider to  the family who may obviously be having
\ndifferent outlook and mode of life including food habits and
\nother social  and religious  customs. Entry of such outsider
\nin the\tjoint family  dwelling house  is  likely  to  create
\nunnecessary  disturbances  not\tgermane\t to  the  peace\t and
\ntranquility not\t only of the occupants of the dwelling house
\nbut also  of neighbours\t residing in the locality and in the
\nnear vicinity.\tWith a\tview to seeing that such homogenious
\nlife of\t co-owners belonging  to the  same joint  family and
\nresiding in the joint family dwelling house is not adversely
\naffected by  the entry\tof a  stranger to  the family,\tthis
\nstatutory right\t of pre-emption is made available to the co-
\nowners who  undertake to buy out such undivided share of the
\nstranger co-owner. If such a right flowing from Section 4 of
\nthe Act\t is restricted\tin its operation only upto the final
\ndecree for  partition, the  very benevolent  object  of\t the
\nsection would get frustrated as upto final decree stage, the
\ncourt would only crystalise the shares of the contesting co-
\nowners but  the separation  and partition  of the  shares of
\nrespective parties  get really\taffected  on  spot  only  by
\nactual\tdivision   by  metes  and  bounds  and\tdelivery  of
\nPossession of respective shares to respective share-holders.
\nThis can be achieved only at the stage when the execution of
\nthe final  decree takes place and the litigation reaches its
\nterminus for the contesting parties and the curtain drops on
\nthe litigation.\t Only then the court which passed the decree
\nbecomes finally\t functus officio.  It is  also\twell-settled
\nrule of interpretation of statute that the court should lean
\nin  favour  of\tthat  interpretation  which  fructifies\t the
\nbeneficial purpose for which the provision is enacted by the
\nlegislature and\t should not  adopt an  interpretation  which
\nfrustrates or  unnecessarily truncates\tit. Maxwell  on\t The
\nInteroretation of statutes, Twelfth Edition, has observed in
\nChapter 4 pertaining to beneficial construction as under :-\n<\/p>\n
     “The fact that a section is clearly
\n     designed  to   afford  relief   may
\n     incline the  court to  construe  it
\n     more benevolently\tthan it\t might a
\n     less\tobviously\tremedial
\n     enactment…”\n<\/p><\/blockquote>\n
     Similarly it has been observed at page 96 as under :-
\n     “It is  said to  he the duty of the
\n     judge to  make such construction of
\n     a statute\tas  shall  suppress  the
\n     mischief and advance the remedy. To
\n     this end,\ta certain  extension  of
\n     the letter\t is not unknown, even in
\n     criminal statutes”.<\/p><\/blockquote>\n
     Consequently, on  the express  language of Section 4 of
\nthe Partition Act which is a benevolent provision enacted by
\nthe legislature\t for the  welfare  and\ttranquility  of\t the
\nmembers of  a joint  family occupying s e dwelling House, we
\nmust so\t construe the  provision as  to make it available at
\nall the\t relevant  stages  of  the  litigation\tbetween\t the
\ncontesting  co-owners\ttill  the   litigation\treaches\t its
\nterminus by way of full and final discharge and satisfaction
\nof the\tfinal decree for partition. If a stranger transferee
\nenters the  arena of  contest at  any stage and seeks to get
\nhis share  separated as\t far as\t the subject-matter  of\t the
\nlitigation, namely, the dwelling house, is concerned, he can
\nbe said to be suing for partition and separate possession of
\nhis undivided  share to which he has become entitled because
\nof transfer by one of the co-owners. Such a transferee might
\ncome on\t the scene  prior to  the final\t decree via Order 22
\nRule 10\t or he\tmay come  on the  arena of  contest  seeking
\nredressal of  his right\t of partition  and separation of his
\nundivided  share   even\t tn   execution\t proceedings   as  a
\ntransferee of  the decree right of erstwhile plaintiff under
\nthe final  decree either  by himself  filing  the  execution
\nproceedings as per Order 21 Rule 16 or may subsequently step
\nin the\tshoes of the decree-holder who has already filed the
\nexecution proceedings  via Order  22 Rule 10 read with Order
\n22  Rule   12.\tIn   either  eventuality,  such\t a  stranger
\ntransferee who\temerges on  the scene  of litigation between
\nthe contesting\tco-owners which\t has not  stilt reached\t its
\nterminus and  who seeks vindication of his transferee-rights
\nin the\tdwelling house can certainly be said to be suing for
\npartition even\tat the\tstage of  execution  of\t such  final
\ndecree for partition.\n<\/p>\n
     In our  view, therefore,  on the  express\tlanguage  of
\nSection 4  of the  Partition Act,  the Division Bench of the
\nHigh Court  reached a  correct conclusion  in  the  impugned
\njudgment.\n<\/p>\n
     Now is  time for  us  to  have  a\tquick  look  at\t the
\ndifferent decisions of the High Courts on this question. Dr.
\nGhosh, learned\tsenior counsel\tfor the\t appellant,  heavily
\nrelied upon  some of  the decisions  of the  Patna  and\t the
\nCalcutta High  Courts as  well as the decision of the Madras
\nHigh Court  in support\tof his\tcontention  that  Section  4
\ncannot be  applied at  the stage  of execution\tof  a  final
\ndecree for partition. On the other hand, learned counsel for
\nthe respondents,  relied upon  the latter  decisions of\t the
\nPatna High  Court as  well as  the Calcutta  High  Court  in
\nsupport of  his\t rival\tcontention  seeking  application  of
\nSection 4  of the  Act even during execution proceedings and
\nwhich contention, as we have seen above, meets our approval.
\nWe shall  first deal  with the\tdecisions relied upon by Dr.
\nGhosh in support of his contention. In Sheodhar Prasad Singh
\n& Ors. vs Kishun Prasad Singh & Ors. (A.I.R. 1941 Patna 4)),
\nDhavle, J. took the view that an application under Section 4
\ncould be made in appeal against final decree. Now it must be
\nkept in\t view  that  the  learned  Judge  was  not  directly
\nconcerned with a situation which arises in the present case.
\nIn the\tcase before  the learned  Judge of  the\t Patna\tHigh
\nCourt, the question of applicability of Section 4 of the Act
\nfell for  consideration at  the stage  when the final decree
\nreached the  second appellate  stage before  the High Court.
\nAccording to the learned Single Judge, Section 4 could apply
\neven at that stage. The learned Single Judge, therefore, had
\nno occasion  to consider  the further question with which we
\nare concerned.\tThe view propounded by him cannot be said to
\nhave ruled  out the  applicability of  Section 4  beyond the
\nstage of  final decree\tin a  suit for\tpartition. Dr. Ghosh
\ninvited\t our  attention\t to  a\tdecision  in  Birendra\tNath
\nBanerjee vs.  Smt. snehalata Devi Anr. (A.I.R. 1968 Calcutta\n<\/p>\n
380). Even in that case the Division Bench of the High Court
\nwas concerned  with the\t applicability of  Section 4 pending
\nappeal against\tthe final decree for partition. The Division
\nBench observed therein as under :-\n<\/p>\n
     “The  right  of  pre-emption  under
\n     Section 4 of the Partition Act is a
\n     right given  by the  statute and on
\n     its wording, it subsists so long as
\n     the suit  remains pending,\t or,  in
\n     other words,  so long  as the  suit
\n     has   not\t  been\t concluded    or
\n     terminated by  an\teffective  final
\n     decree for partition. Therefore, an
\n     application  claiming,  pre-emption
\n     at a  time when  the appeal against
\n     final partition  decree is\t pending
\n     cannot be held barred by limitation
\n     on the  ground  that  it  has  been
\n     filed beyond  three  years\t of  the
\n     passing\tof    the    preliminary
\n     partition decree.”<\/p><\/blockquote>\n
     The aforesaid observation makes it clear that the court
\nwas concerned  with the question of limitation in connection
\nwith application  under Section\t 4 of  the Act\tpending\t the
\nappeal against\tthe final  decree and  whether it  should be
\ntreated as  time barred\t considering the  starting point  of
\npreliminary decree.  It is  true that the Division Bench, in
\nthis connection,  observed that\t the  right  of\t pre-emption
\nunder Section  4 subsists  so long as the suit is pending or
\nhas not been concluded or terminated by the final decree for
\npartition. But\tthe said  observation cannot be construed to
\nhave excluded  the possibility of applicability of Section 4
\nto a  post final  decree stage\tas such\t a situation had not
\narisen for  consideration of the court. However the decision
\nof the\tMadras High  Court is  on the point. Strong reliance
\nwas placed  by Dr.  Ghosh on the judgment of the Madras High
\nCourt in Abdul Sathar vs. AL Nawab (A.I.R. 1980 Madras 225),
\nIn that\t case a\t learned Single\t Judge, Ratnam, J., took the
\nview dissenting\t from the  decisions of\t the Patna  and\t the
\nCalcutta High  Courts to  which we  shall make\ta  reference
\npresently that\tSection 4  of the  Act cannot  be pressed in
\nservice after  the final  decree for partition is passed. In
\nother words,  in execution  proceedings Section 4 of the Act
\ncannot apply.  As already  discussed by us earlier Section 4
\non its\texpress language  cannot be read in such a truncated
\nfashion. Therefore, the decision of the learned Single Judge
\nCannot be  Considered to  ba laying  down good\tlaw. On\t the
\nother hand, the decisions of the Patna and the Calcutta High
\nCourts to which we shall now make a reference.\n<\/p>\n
     In Satya  Narayan Chakravarty vs. Biswanath Paul & Ors.
\n(1974 Calcutta\tWeekly Notes  871), a  Division Bench of the
\nCalcutta High  Court observed  that so\tlong as the stranger
\npurchaser of decretal rights of one of the co-owners has not
\ntaken possession  of his  allotted share by execution of the
\nsaid decree,  application under\t Section 4  of the partition
\nAct is\tmaintainable In\t this connection, it was observed by
\nthe Division Bench, speaking through Laik, J., as under :-\n<\/p>\n
     “Having considered\t the  scheme  of
\n     the  Partition  Act  including  its
\n     object  which  is\tto  prevent  the
\n     introduction of any foreign element
\n     into the  group of\t family\t members
\n     and its  aim which\t is to\tmaintain
\n     homogeneity  in   respect\tof   the
\n     entire family  and particularly the
\n     provisions of  section  4\tthereof,
\n     which does\t not indicate a contrary
\n     intention and  after giving anxious
\n     consideration  to\t the  principles
\n     laid   down   but\t following   the
\n     principle that  the residence  in a
\n     dwelling  house   of  an  undivided
\n     family should not, if possible (but
\n     not contrary  to  law),  be  thrown
\n     open to  a stranger  to the  family
\n     and remembering  that the\tterms of
\n     section 4\tof  the\t Act  are  quite
\n     general and  distinct from a decree
\n     passed  in\t a  partition  suit  and
\n     holding further  the rule\tthat the
\n     executing\tcourt\tshould\tnot   go
\n     behind the\t decree, is inapplicable
\n     in an  application under  section 4
\n     of\t the   Partition  Act\tand  not
\n     ignoring the  provisions of section
\n     44 of  the Transfer of Property Act
\n     and  the\trules  of  pre-\t emption
\n     governing\t   the\t   Muhammandans,
\n     Buddhists, Jews,  Romans and others
\n     and agreeing  with respect\t to  the
\n     dictum of the judicial committee in
\n     42 IA  10-ILR 37  AM 129 (141) R.C.
\n     that the  right of pre-emption is a
\n     “valuable right”  – the  object  of
\n     such a right being the avoidance of
\n     a\tdisagreeable   stranger\t (though
\n     some may think it an archaism and a
\n     clog on  freedom of  contract)  the
\n     court  held   that\t an  application
\n     under Section  4 of  the  Partition
\n     Act is  maintainable even after the
\n     final decree is passed….”
\n     In Boto  Krishna Ghose  vs. Akhoy\tKumar Ghose  &\tOrs.\n<\/p><\/blockquote>\n
(A.I.R. (37)  1950 Calcutta  111), it  was held\t by  another
\nDivision Bench\tof the\tCalcutta High  Court that a dwelling
\nhouse of an undivided family has a linkage with the dwelling
\nhouse which  belongs to\t the family and which is not divided
\nand that such dwelling house may be owned by members of such
\nfamily who  need not  be joint in mess and that house itself
\nshould be  undivided amongst  the members  of the family who
\nare its\t owners. The  emphasis is  really on  the  undivided
\ncharacter of  the house,  and it  is this  attribute of\t the
\nhouse which  imparts to\t the  family  its  character  of  an
\nundivided family.  For the  members of\tthe family  may have
\npartitioned all\t their other  joint properties\tand may have
\nseparated in  mess and\tworship, but  they would still be an
\nundivided family  in relation  to the dwelling house so long
\nas they\t have not  divided it  amongst themselves.  In\tthis
\nconnection, it has been further observed as follows :-\n<\/p>\n
     “If  in  this  state  of  things  a
\n     member of\tthe family transfers his
\n     share in  the dwelling  house to  a
\n     stranger, the  position that arises
\n     that para 2 of section 44, T.P. Act
\n     comes  into   operation   and   the
\n     transferee does not become entitled
\n     to joint possession or other common
\n     or part  enjoyment\t of  the  house,
\n     although he would have the right to
\n     enforce a\tpartition of  his share.
\n     The object\t of this provision is to
\n     prevent the  intrusion of strangers
\n     into the  family residence which is
\n     allowed to be possessed and enjoyed
\n     by the  members of the family alone
\n     in spite of the transfer of a share
\n     to\t a   stranger  .   The\t factual
\n     position then  is that  it is still
\n     an undivided  dwelling  house,  the
\n     possession and  enjoyment of  which
\n     are confined  to the members of the
\n     family,  the   stranger  transferee
\n     being   debarred\t by   law   from
\n     exercising\t his   right  to   joint
\n     possession which is one of the main
\n     incidents\t of    co-ownership   of
\n     property. Such a dwelling house can
\n     in our opinion still be looked upon
\n     as a dwelling house belonging to an
\n     undivided\t family,   because   the
\n     members  of  the  family  have  not
\n     divided it\t amongst themselves  and
\n     are   in\t sole\tenjoyment    and
\n     possession of  it to  the exclusion
\n     of the  stranger transferee who has
\n     only a  right to  partition. And so
\n     long as  the dwelling house has not
\n     been  completely\t  alienated   to
\n     strangers as  was the case in Vaman
\n     Vishnu vs. Vasudeo Norbhat, 23 Bom.
\n     73, successive  transfers by  other
\n     co-sharer members\tof the family do
\n     not alter\tthe factual  position in
\n     this respect, because the remaining
\n     member or\tmembers\t of  the  family
\n     have the  right to\t hold  exclusive
\n     possession to  the exclusion of the
\n     stranger alienees.\t So long as that
\n     situation\t lasts,\t  the\tdwelling
\n     house, in our opinion, continues to
\n     be a dwelling house belonging to an
\n     undivided family.”<\/p><\/blockquote>\n
     The aforesaid  decision also  shows  that\tso  long  as
\ndecree for partition of a family dwelling house does not get
\nfully executed\tand the\t shares\t of  co-owners\tdo  not\t get
\nseparated by  metes and bounds and the co-owners are not put
\nin  actual   possession\t of  their  respective\tshares,\t the
\ndwelling house\tremains to be common dwelling house of joint
\nfamily and  so long  as that  attribute remains,  section  4
\nwould continue\tto ba  attracted. We  may now  deal with the
\ndecision of the Division Bench of the Patna High Court which
\nhas also  directly spoken  on the  point. In  Harendra\tNath
\nMukharjee vs. Shyam Sunder Kuer & Ors. (Supra) Mukharji, J.,
\nspeaking for the court had to consider this very question in
\nthe light  of the  scheme of Section 4 of the Partition Act.
\nIt was\theld that  application under Section 4 could be made
\nat any\tstage of the suit. Simply because an application had
\nbeen filed  after the  passing of the final decree, it could
\nnot be\tsaid that it was not maintainable on the ground that
\nthe executing  court could  not go behind the decree. It was
\nnot a  case of\tgoing behind  the  decree.  It\twas  further
\nobserved that  family continued to be undivided qua dwelling
\nhouse till  possession was  delivered to  the members of the
\nfamily in execution of the final decree for partition and as
\nsuch, the application under Section 4 was maintainable after
\npassing of the final decree and before the possession of the
\ndwelling house\tin question  was delivered  to the  stranger
\ntransferee. The\t aforesaid decisions  of the  Calcutta\tHigh
\nCourt in  the cases of Satya Narayan Chakravarty (supra) and
\nBoto Krishna  Ghose (supra)  as well  as the decision of the
\nDivision Bench\tof the\tPatna High  Court  in  the  case  of
\nHarendra Nath  Mukharjee (supra)  lay down the correct legal
\nposition.\n<\/p>\n
     At this  stage, we\t may note one apprehension voiced by
\nDr. Ghosh.  It was  submitted that  if this  view  regarding
\napplicability of  Section 4 is upheld, then it may very well
\nhappen that  even after the decree for partition is executed
\nby one of the erstwhile co-owners and his transferee and the
\nstranger transferee  is actually  put in  possession of\t his
\nshare  by   division  on  spot\tby  metes  and\tbounds,\t and
\nthereafter if such a transferee transfers his separate share
\nin the dwelling house which has been actually handed over to
\nhim, the  co-owner  may\t still\tfile  an  application  under
\nSection\t 4   of\t the   Act.  This  apprehension\t is  totally
\nmisconceived. Section  4 in  its applicability, as discussed
\nabove, will  cover all\tstages of  litigation in a partition
\nsuit from its inception till its termination not only by the
\nfinal  decree\tfor  partition\tbut  also  by  its  complete
\nsatisfaction and  discharge through  the assistance  of\t the
\nexecuting court;  once that happens the court itself becomes
\nfunctus officio\t and the  litigation will come to an end and
\nthe concerned  parties thereafter will occupy the respective
\nportions of  the erstwhile  dwelling house as full owners of
\ntheir portions.\t The separated part of the dwelling house in
\npossession  of\tsuch  stranger\ttransferee  cannot  then  be
\ntreated as a part and parcel of the dwelling house belonging
\nto an  undivided family and at that stage the dwelling house
\nqua such  a stranger  would cease  to belong  to  any  joint
\nfamily and  it would  belong to\t different owners  occupying
\ntheir respective  portions in  a composite  building. Momemt
\nthe  integrity\t of  common   dwelling\thouse  belonging  to
\nundivided family  is broken  by the  execution of  the final
\npartition decree  through the  intervention of the court and
\nthe proceedings\t are ended,  there would remain no scope for
\nplay of\t Section 4  of the Act as there would be no subject-
\nmatter of  a common dwelling house belonging to an undivided
\nfamily on which it could operate.\n<\/p>\n
     As a  result of  the aforesaid  discussion, it  must be
\nheld that  Section 4  of the  Act can  validly be pressed in
\nservice by  any of  the\t co-owners  of\tthe  dwelling  house
\nbelonging to undivided family pending the suit for partition
\ntill final decree is passed and thereafter even at the stage
\nof execution  of the  final decree  for partition so long as
\nthe execution proceedings have not effectively ended and the
\ndecree\tfor  partition\thas  not  been\tfully  executed\t and
\nsatisfied by  putting the share-holders in actual possession
\nof their  respective shares.  Beyond  that  stage,  however,
\nSection 4 will go out of commission.\n<\/p>\n
     That leaves  out the  question as\tto what\t final order
\nshould be passed in these proceedings. As we have upheld the
\napplicability of  Section 4  to the  present proceedings the
\napplication filed  by Respondent  No.1 is  held maintainable
\nand is\trequired to  be processed further. At this stage, on
\nthe aforesaid  conclusion to which we have reached, it would
\nbe necessary,  as directed  by the High Court, to remand the
\nproceedings under  Section 4  of the Act for being processed
\nfurther. However,  as the  proceedings are  very old and are
\nlingering on  since so\tmany years  in\tthe  court,  learned
\ncounsel for  the respondents fairly suggested with a view to
\nputting an  end to  this litigation that Respondent No.1 who
\nhad moved  the application  under Section  4 of\t the Act  in
\n1986, is  prepared to pay Rs. four lakhs to the appellant in
\nfull and  final satisfaction  of his Claim as a donee of the
\nshare belonging\t to Smt. Radha Rani. This amount was offered
\nin the\tlight of the valuation of the share of the appellant
\nin the dwelling house as on 12.12.1985 when that application
\nwas moved.\n<\/p>\n
     This  offer   was\tmade  by  learned  counsel  for\t the
\nrespondents in\tconsultation with  Respondent No  1 who\t was
\npresent in  the Court. Dr. Ghosh, learned senior counsel for
\nthe appellant,\twas also  agreeable to the said course being
\nadopted. In  our view this is a fair stand taken by both the
\nparties to put an end to this litigation which was triggered
\noff as early as on 5.9.1960. It is high time that it reaches
\nits final  terminus at\tleast after 36 years. We, therefore,
\ngrant application  of Respondent No.1 under Section 4 of the
\nPartition Act  and direct  him to  pay Rs.four\tlakhs to the
\nappellant in full and final satisfaction of his claim and on
\npayment\t of   Rs.four  lakhs   by  Respondent  No.1  to\t the
\nappellant, the\tappellant shall\t convey his right, title and
\ninterest in the suit house to Respondent No.1 as per Section
\n4 of  the Partition  Act. Rupees four lakhs shall be paid by
\nRespondent. No.1 to the appellant by instalments as under :-\n<\/p>\n
     1.\t  Rupees two  lakhs will be paid
\n     by Respondent No.1 to the appellant
\n     on or before 31 .12.1996.\n<\/p><\/blockquote>\n
     2.\t  The  balance\t of  Rupees  two
\n     lakhs shall  be paid  by Respondent
\n     No.1 to  the appellant on or before
\n     31.3.1997.<\/p><\/blockquote>\n
     It is  further directed  that in case of default of any
\nof these  instalments, the  amount  remaining  due  on\tsuch
\ndefault shall  become payable  by  Respondent  No.1  to\t the
\nappellant with\t18% interest  thereon from  the date cf this
\njudgment till the payment of such default amount. On payment
\nof the aforesaid amount of Rs.four lakhs and also subject to
\npayment of  interest on\t the requisite\tamount, in  case  of
\ndefault, if any, as eforesaid, the right, title and interest
\nof the\tappellant in  the suit\tdwelling house\tshall  stand
\ntransferred  in\t full  ownership  Of  Respondent  No.1,\t the
\napplicant of  Section 4\t of the\t Act and such share shall be
\ntreated to  have been  sold by\tthe appellant  to Respondent
\nNo.1. On  receipt of  the aforesaid  sale consideration, the
\nappellant shall\t also execute  necessary  sale\tdocument  in
\nfavour of  Respondent No.1. The cost of registration of such
\nsale document  shall be borne by Respondent No.1. Thereupon,
\nthe application\t for execution\tmoved by the appellant shall
\nbe treated as closed and the decratal claim of the appellant
\nqua the judgment-debtors will be treated as fully satisfied.
\nIt is  further directed that the concerned parties shall not
\nalienate or  encumber in  any manner their respective shares
\nin the joint family dwelling house till the present order is
\nfully complied\twith. The  concerned parties are directed to
\ncarry out the aforesaid directions punctually. The appeal is
\naccordingly disposed  of with  no order\t as to\tcosts in the
\nfacts and circumstances of the case.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Ghantesher Ghosh vs Madan Mohan Ghosh & Ors on 18 September, 1996 Author: M S.B. Bench: Majmudar S.B. (J) 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-120803","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nGhantesher Ghosh vs Madan Mohan Ghosh & Ors on 18 September, 1996 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ghantesher-ghosh-vs-madan-mohan-ghosh-ors-on-18-september-1996\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ghantesher Ghosh vs Madan Mohan Ghosh & Ors on 18 September, 1996 - Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"og:url\" content=\"https:\/\/www.legalindia.com\/judgments\/ghantesher-ghosh-vs-madan-mohan-ghosh-ors-on-18-september-1996\" \/>\n<meta property=\"og:site_name\" content=\"Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"article:publisher\" content=\"https:\/\/www.facebook.com\/LegalindiaCom\/\" \/>\n<meta property=\"article:published_time\" content=\"1996-09-17T18:30:00+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2015-03-12T22:48:28+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1\" \/>\n\t<meta property=\"og:image:width\" content=\"512\" \/>\n\t<meta property=\"og:image:height\" content=\"512\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/jpeg\" \/>\n<meta name=\"author\" content=\"Legal India Admin\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:creator\" content=\"@legaliadmin\" \/>\n<meta name=\"twitter:site\" content=\"@Legal_india\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"Legal India Admin\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"39 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\\\/\\\/schema.org\",\"@graph\":[{\"@type\":\"Article\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/ghantesher-ghosh-vs-madan-mohan-ghosh-ors-on-18-september-1996#article\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/ghantesher-ghosh-vs-madan-mohan-ghosh-ors-on-18-september-1996\"},\"author\":{\"name\":\"Legal India Admin\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/person\\\/0bfdffe9059fb8bb24a86d094609c5ea\"},\"headline\":\"Ghantesher Ghosh vs Madan Mohan Ghosh & Ors on 18 September, 1996\",\"datePublished\":\"1996-09-17T18:30:00+00:00\",\"dateModified\":\"2015-03-12T22:48:28+00:00\",\"mainEntityOfPage\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/ghantesher-ghosh-vs-madan-mohan-ghosh-ors-on-18-september-1996\"},\"wordCount\":7802,\"commentCount\":0,\"publisher\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\"},\"articleSection\":[\"Supreme Court of India\"],\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"CommentAction\",\"name\":\"Comment\",\"target\":[\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/ghantesher-ghosh-vs-madan-mohan-ghosh-ors-on-18-september-1996#respond\"]}]},{\"@type\":\"WebPage\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/ghantesher-ghosh-vs-madan-mohan-ghosh-ors-on-18-september-1996\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/ghantesher-ghosh-vs-madan-mohan-ghosh-ors-on-18-september-1996\",\"name\":\"Ghantesher Ghosh vs Madan Mohan Ghosh & Ors on 18 September, 1996 - Free Judgements of Supreme Court & High Court | Legal India\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#website\"},\"datePublished\":\"1996-09-17T18:30:00+00:00\",\"dateModified\":\"2015-03-12T22:48:28+00:00\",\"breadcrumb\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/ghantesher-ghosh-vs-madan-mohan-ghosh-ors-on-18-september-1996#breadcrumb\"},\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"ReadAction\",\"target\":[\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/ghantesher-ghosh-vs-madan-mohan-ghosh-ors-on-18-september-1996\"]}]},{\"@type\":\"BreadcrumbList\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/ghantesher-ghosh-vs-madan-mohan-ghosh-ors-on-18-september-1996#breadcrumb\",\"itemListElement\":[{\"@type\":\"ListItem\",\"position\":1,\"name\":\"Home\",\"item\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\"},{\"@type\":\"ListItem\",\"position\":2,\"name\":\"Ghantesher Ghosh vs Madan Mohan Ghosh & Ors on 18 September, 1996\"}]},{\"@type\":\"WebSite\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#website\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\",\"name\":\"Free Judgements of Supreme Court & High Court | Legal India\",\"description\":\"Search and read the latest judgements, orders, and rulings from the Supreme Court of India and all High Courts. A comprehensive database for lawyers, advocates, and law students.\",\"publisher\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\"},\"alternateName\":\"Free judgements of Supreme Court & High Court of India | Legal India\",\"potentialAction\":[{\"@type\":\"SearchAction\",\"target\":{\"@type\":\"EntryPoint\",\"urlTemplate\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/?s={search_term_string}\"},\"query-input\":{\"@type\":\"PropertyValueSpecification\",\"valueRequired\":true,\"valueName\":\"search_term_string\"}}],\"inLanguage\":\"en-US\"},{\"@type\":\"Organization\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\",\"name\":\"Judgements of Supreme Court & High Court | Legal India\",\"alternateName\":\"Legal India\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\",\"logo\":{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/logo\\\/image\\\/\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/wp-content\\\/uploads\\\/sites\\\/5\\\/2025\\\/09\\\/legal-india-icon.jpg\",\"contentUrl\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/wp-content\\\/uploads\\\/sites\\\/5\\\/2025\\\/09\\\/legal-india-icon.jpg\",\"width\":512,\"height\":512,\"caption\":\"Judgements of Supreme Court & High Court | Legal India\"},\"image\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/logo\\\/image\\\/\"},\"sameAs\":[\"https:\\\/\\\/www.facebook.com\\\/LegalindiaCom\\\/\",\"https:\\\/\\\/x.com\\\/Legal_india\"]},{\"@type\":\"Person\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/person\\\/0bfdffe9059fb8bb24a86d094609c5ea\",\"name\":\"Legal India Admin\",\"image\":{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"url\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"contentUrl\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"caption\":\"Legal India Admin\"},\"sameAs\":[\"https:\\\/\\\/www.legalindia.com\",\"https:\\\/\\\/x.com\\\/legaliadmin\"],\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/author\\\/legal-india-admin\"}]}<\/script>\n<!-- \/ Yoast SEO plugin. -->","yoast_head_json":{"title":"Ghantesher Ghosh vs Madan Mohan Ghosh & Ors on 18 September, 1996 - Free Judgements of Supreme Court & High Court | Legal India","robots":{"index":"index","follow":"follow","max-snippet":"max-snippet:-1","max-image-preview":"max-image-preview:large","max-video-preview":"max-video-preview:-1"},"canonical":"https:\/\/www.legalindia.com\/judgments\/ghantesher-ghosh-vs-madan-mohan-ghosh-ors-on-18-september-1996","og_locale":"en_US","og_type":"article","og_title":"Ghantesher Ghosh vs Madan Mohan Ghosh & Ors on 18 September, 1996 - Free Judgements of Supreme Court & High Court | Legal India","og_url":"https:\/\/www.legalindia.com\/judgments\/ghantesher-ghosh-vs-madan-mohan-ghosh-ors-on-18-september-1996","og_site_name":"Free Judgements of Supreme Court & High Court | Legal India","article_publisher":"https:\/\/www.facebook.com\/LegalindiaCom\/","article_published_time":"1996-09-17T18:30:00+00:00","article_modified_time":"2015-03-12T22:48:28+00:00","og_image":[{"width":512,"height":512,"url":"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1","type":"image\/jpeg"}],"author":"Legal India Admin","twitter_card":"summary_large_image","twitter_creator":"@legaliadmin","twitter_site":"@Legal_india","twitter_misc":{"Written by":"Legal India Admin","Est. reading time":"39 minutes"},"schema":{"@context":"https:\/\/schema.org","@graph":[{"@type":"Article","@id":"https:\/\/www.legalindia.com\/judgments\/ghantesher-ghosh-vs-madan-mohan-ghosh-ors-on-18-september-1996#article","isPartOf":{"@id":"https:\/\/www.legalindia.com\/judgments\/ghantesher-ghosh-vs-madan-mohan-ghosh-ors-on-18-september-1996"},"author":{"name":"Legal India Admin","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/0bfdffe9059fb8bb24a86d094609c5ea"},"headline":"Ghantesher Ghosh vs Madan Mohan Ghosh & Ors on 18 September, 1996","datePublished":"1996-09-17T18:30:00+00:00","dateModified":"2015-03-12T22:48:28+00:00","mainEntityOfPage":{"@id":"https:\/\/www.legalindia.com\/judgments\/ghantesher-ghosh-vs-madan-mohan-ghosh-ors-on-18-september-1996"},"wordCount":7802,"commentCount":0,"publisher":{"@id":"https:\/\/www.legalindia.com\/judgments\/#organization"},"articleSection":["Supreme Court of India"],"inLanguage":"en-US","potentialAction":[{"@type":"CommentAction","name":"Comment","target":["https:\/\/www.legalindia.com\/judgments\/ghantesher-ghosh-vs-madan-mohan-ghosh-ors-on-18-september-1996#respond"]}]},{"@type":"WebPage","@id":"https:\/\/www.legalindia.com\/judgments\/ghantesher-ghosh-vs-madan-mohan-ghosh-ors-on-18-september-1996","url":"https:\/\/www.legalindia.com\/judgments\/ghantesher-ghosh-vs-madan-mohan-ghosh-ors-on-18-september-1996","name":"Ghantesher Ghosh vs Madan Mohan Ghosh & Ors on 18 September, 1996 - Free Judgements of Supreme Court & High Court | Legal India","isPartOf":{"@id":"https:\/\/www.legalindia.com\/judgments\/#website"},"datePublished":"1996-09-17T18:30:00+00:00","dateModified":"2015-03-12T22:48:28+00:00","breadcrumb":{"@id":"https:\/\/www.legalindia.com\/judgments\/ghantesher-ghosh-vs-madan-mohan-ghosh-ors-on-18-september-1996#breadcrumb"},"inLanguage":"en-US","potentialAction":[{"@type":"ReadAction","target":["https:\/\/www.legalindia.com\/judgments\/ghantesher-ghosh-vs-madan-mohan-ghosh-ors-on-18-september-1996"]}]},{"@type":"BreadcrumbList","@id":"https:\/\/www.legalindia.com\/judgments\/ghantesher-ghosh-vs-madan-mohan-ghosh-ors-on-18-september-1996#breadcrumb","itemListElement":[{"@type":"ListItem","position":1,"name":"Home","item":"https:\/\/www.legalindia.com\/judgments\/"},{"@type":"ListItem","position":2,"name":"Ghantesher Ghosh vs Madan Mohan Ghosh & Ors on 18 September, 1996"}]},{"@type":"WebSite","@id":"https:\/\/www.legalindia.com\/judgments\/#website","url":"https:\/\/www.legalindia.com\/judgments\/","name":"Free Judgements of Supreme Court & High Court | Legal India","description":"Search and read the latest judgements, orders, and rulings from the Supreme Court of India and all High Courts. A comprehensive database for lawyers, advocates, and law students.","publisher":{"@id":"https:\/\/www.legalindia.com\/judgments\/#organization"},"alternateName":"Free judgements of Supreme Court & High Court of India | Legal India","potentialAction":[{"@type":"SearchAction","target":{"@type":"EntryPoint","urlTemplate":"https:\/\/www.legalindia.com\/judgments\/?s={search_term_string}"},"query-input":{"@type":"PropertyValueSpecification","valueRequired":true,"valueName":"search_term_string"}}],"inLanguage":"en-US"},{"@type":"Organization","@id":"https:\/\/www.legalindia.com\/judgments\/#organization","name":"Judgements of Supreme Court & High Court | Legal India","alternateName":"Legal India","url":"https:\/\/www.legalindia.com\/judgments\/","logo":{"@type":"ImageObject","inLanguage":"en-US","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/logo\/image\/","url":"https:\/\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg","contentUrl":"https:\/\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg","width":512,"height":512,"caption":"Judgements of Supreme Court & High Court | Legal India"},"image":{"@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/logo\/image\/"},"sameAs":["https:\/\/www.facebook.com\/LegalindiaCom\/","https:\/\/x.com\/Legal_india"]},{"@type":"Person","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/0bfdffe9059fb8bb24a86d094609c5ea","name":"Legal India Admin","image":{"@type":"ImageObject","inLanguage":"en-US","@id":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","url":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","contentUrl":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","caption":"Legal India Admin"},"sameAs":["https:\/\/www.legalindia.com","https:\/\/x.com\/legaliadmin"],"url":"https:\/\/www.legalindia.com\/judgments\/author\/legal-india-admin"}]}},"modified_by":null,"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_likes_enabled":true,"jetpack-related-posts":[],"_links":{"self":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts\/120803","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/comments?post=120803"}],"version-history":[{"count":0,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts\/120803\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/media?parent=120803"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/categories?post=120803"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/tags?post=120803"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}