LexGHANTESHER GHOSH versus MADAN MOHAN GHOSH AND ORS.
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A GHANTESHER GHOSH v. MADAN MOHAN GHOSH AND ORS. SEPTEMBER 18, 1996 B [N.P. SINGH AND S.B. MAJMUDAR, .TJ.) P01tition Act, J893 : Section 4. Dwelling house-Belonging to undivided family-Transfer of share to C stranger-Pursuant to final decree for p01tition--Such strange1~Transferee filed petition for execution of decree·-Dwing pendency of execution proceed- ings co-owner family member filed application before executing cowt for purchase or share of such stranger--transferee by enforcing his claim for pre-emption under S.4 of the Act-Executing cowt dismissed application on ground that said application not maintainable after passing of final decree in D p01tition suit-Howeve1; High Court allowed said application-Applicability of S.4-Held : Words "such transferee sues for partition" and "Sues for partition" wider in scope than words "filling suit for p01tition''-Suit for partition included initiation of proceedings for execution of partition decree-S.4 operated at all stages of litigation in a partition suit--R.ight from E its inception till its tennination not only by final decree for partition but also by its complete satisfaction and discharge in execution proceedings-S.4 could be invoked by any co-owner family member for purchase of strr;1iger- transferee's share-But once final decree for p01tition was completely satisfied and discharge in execution proceedings S.4 could not be invoked-Code of F Civil Procedure, J908, S.11. Expin. VII, 0.22 Rr. JO and J2--Transfer of Property Act, J882, Ss. 44 and 52. Interpretation of Statutes : ) Benevolent legislation-Interpretation which ftuctified beneficial pur- G pose of provision should be adopted. Words and Phrases: "Sue'~ "~uit" and "Sue for p01titio11''-Meaning of-In the context of Code of Civil Procedure, J908, S. J J Expln. VII, 0.22 Rr;. JO, J2 and PaTtition H Act, 1893 S.4. 448 • '· G. GHOSH v. M.M. GHOSH [MAJMUDAR J.j 449 A residential house was owned by three brothers, each having 1/3rd A share. After the death r,f one of the brothers his widow inherited 1/3rd undivided share of her husband in the said dwelling house and on coming into ·operation of the Hindu Succession Act, 1956 she became full owner of the l/3rd share of her deceased husband in the said house. Thereafter, she filed suit for partition against the other two co-owners claiming separa- tion of her 1/3rd share in the said house. She obtained a final decree in the suit. Thereafter, she executed and got registered a deed of gift in favour of her brother, the appellant, in respect of her 1/3rd undivided interest in the said dwelling house. Armed with that gift-deed, the appellant-donee, B who was a stranger to the joint family, filed an execution petition for executing the final decree. Pending the execution proceedings one of the C co-owner judgment-debtors died and the respondent No. 1 was brought on record as his legal heir in the execution proceedings. The respondent No. 1 filed an application before the executing court under Section 4 of the Partition Act, 1893 for enforcing his claim of pre-emption against the appellant stranger transferee of the 1/3rd undivided interest of the original D title holder. The executing court dismissed the said application of respon- dent No. 1 on the ground that the said application was not maintainable after the final decree was passed in the partition suit. But the High Court took the view that the said partition suit under the Act was maintainable as still the final decree had not got fully executed and satisfied by actual division of the property by metes and bounds and delivery of actual E possession to the stranger transferee who had taken out the execution proceedings. Being aggrieved the appellant-stranger transferee preferred the present appeal. Disposing of the appeal, this Court HELD : 1.1. Section 4 of the Partition Act, 1893 can validly be pressed in service by any of the co-owners of the dwelling house belonging to undivided family pending the suit for partition till final decree is passed F and thereafter even at \i1e stage of execution of the final decree for partition so long as the execution proceedings have not effectively ended G and the decree for partition has not been fully executed and satisfied by putting the shareholders in actual possession of their respective shares. Beyond that stage, however, Section 4 of the Act will go out of commission. [469-E-G] 1.2. Amongst other
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