GAUTAM PAUL versus DEBI RANI PAUL AND ORS

Citation: [2000] SUPP. 3 S.C.R. 733 · Decided: 17-10-2000 · Supreme Court of India · Bench: V.N. KHARE · Disposal: Disposed off

Judgment (excerpt)

' 
GAUTAM PAUL 
A 
v. 
DEBI RANI PAUL AND ORS 
OCTOBER 17, 2000 
[V.N. KHARE AND S.N. VARIA VA, JJ.] 
B 
Partition Act, 1893-Section 4-Right of pre-emption-Exercise of-
Dwelling house belonging to undivided family-Transfer of share to a 
stranger-No suit for partition by stranger transferee-Effect of-Held, co- C 
sharer family members do not acquire right of pre-emption. 
Interpretation of statutes 
Liberal interpretation-Grant of-Held, while giving liberal 
interpretation the legislative intent and clear wordings of the section should 
not be ignored 
D 
Words & Phrases 
"Dwelling-house belonging to an undivided family", "such family"-
Meaning of in the context of Section 4 of the Partition Act, 1893. 
A residential Property was sold by its original owner to a third party. 
After the death of the said third party, his heirs gifted the residential property 
in favour of three persons two of them being sons and the third being the 
grandson of the original owner. The said property was subsequently inherited 
E 
by their legal heirs. Appellant, who was one of the legal heirs and continued F 
to stay in one room of the suit premises after the death of his father, purchased 
l/9th share of another legal heir in the dwelling house. Respondents 1 and 2 
who were closely related to the appellant, filed a suit for partition of the 
property and for a declaration that sale in favour of appellant was illegal, void 
and not binding on them. They also file an application under S.4 of the Partition 
Act, 1893 claiming pre-emptive right to purchase the share sold to the G 
appellant stranger. Trial Court while passing preliminary decree for partition, 
kept the application under S.4 of the Act pending for decision after recording 
evidence. However on appeal, High Court held that appellant was not a member 
of the family and responde~ts 1 and 2 were entitled under S.4 of the Act to 
pre-empt the sale made in favour of appellant. Hence the present appeal. 
733 
H 
734 
SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R. 
A 
On behalf of appellant-transferee it was contended that appellant was a 
member of the family as he was closely related to respondents through a 
common ancestor and therefore S.4 of the Act contemplating sale to an 
absolute outsider cannot be invoked; that the appellant had not sued for 
partition and therefore sale in his favour cannot be pre-empted under S.4 of 
B theAct. 
On behalf of respondents 1 and 2 it was contended that share in the 
dwelling house belonging to an undivided family of the grand son of the original 
owner, was sold to appellant who was not a member of the said undivided family 
and therefore S.4 was rightly invoked; that it was not necessary that the 
C stranger/outsider should actually file a suit for partition; that in any suit for 
partition filed by an outsider or member of family, the position of all parties 
was inter changeable and irrespective of whether the stranger/outsider asked 
for a separate allotment or not, any co-sharer can claim a right for pr~mption 
under S.4 of the Act. 
D 
Disposing of the appeal, the Court 
HELD: 1.1. The right to pre-empt purchase by co-sharer under S.4 of 
the Partition Act, 1893 cannot be exercised till the stranger/outsider sues 
for partition. There is no law which provides that co-sharer must only sell 
his/her share to another co-sharer. Thus, strangers/outsiders can purchase 
E shares even in a dwelling house. However, Section 44 of the Transfer of 
Property Act provides that the transferee of a share of a dwelling house, if 
he/she is not a member of that family, gets no right to joint possession or 
common enjoyment of the house. The only manner in which an outsider can 
get possession is to sue for possession and claim separation of his share. 
F Thus, before the right of pre-emption, under Section 4, is exercised the 
condition inter alia laid down therein that the outsider must sue for partition 
must be complied with. [744-G, H; 745-A, BJ 
1.2. Though S.4 of the Act should be given a liberal interpretation but 
giving liberal interpretation does not mean that the wordings of the section 
G and the Legislative intent should be ignored. The legislature did not provide 
that the right for pre-emption could be exercised "in any suit for partition". 
The Legislature only provided for such right when the "transferee sues for 
partition." Mere assertion ofa claim to a share without demanding separation 
and possession (by the outsider) is not enoug

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