SRILEKHA GHOSH (ROY) AND ANR. versus PARTHA SARATHI GHOSH

Citation: [2002] SUPP. 1 S.C.R. 45 · Decided: 09-07-2002 · Supreme Court of India · Bench: D.P. MOHAPATRA · Disposal: Disposed off

Judgment (excerpt)

SRILEKHA GHOSH (ROY) AND ANR. 
V. 
PARTHA SARATHJ GHOSH 
JULY 9, 2002 
[D.P. MOHAPATRA AND SHIVARAJ V. PATIL, JJ.] 
Partition Act, 1893-Section 4-Partition of dwelling house-Belonging 
to undivided family-Partition suit filed by married daughters-Application 
A 
B 
for pre-emption by co-sharer-Maintainability of-Held, not maintainable- C 
The provision has no application in the instant case as the daughters cannot 
be said to be strangers nor have they expressed intention not to reside in the 
said property. 
The suit property i.e. a dwelling house was inherited by one male 
heir (respondent-defendant) and three female heirs viz. the widow and two D 
daughters (appellants-plaintiffs nos.I and 2). The appellants-plaintiffs 
acquired interest in the property by way of gift from their mother. 
Appellants-plaintiffs filed suit for partition of the property. There was a 
preliminary decree. During pendency of the suit, Plaintiff No. 2 got 
married. Thereafter defendant filed an application under Section 4 of 
Partition Act, I893 to purchase share of plaintiff No. 2, which was E 
dismissed. Plaintiff No.2's application under Section 4 of the Act which 
was filed before her marriage claiming pre-emption of share of plaintiff 
No.I (who was married) was decided by holding that both plaintiff No.2 
and defendant had right to buy share of plaintiff No. I. Defendant's appeal 
against the said order was allowed holding that defendant alone was F 
entitled to purchase the share of plaintiff No.I as plaintiff No.2 lost status 
of a member of undivided family after her marriage. Another application 
under Section 4 of the Act filed by defendant for pre-emption of share of 
plaintiff No.2 was dismissed on the ground that earlier such application 
was rejected which order had attained finality. In revision High Court 
allowed the application for pre-emption. 
G 
In appeal to this Court the question for consideration was whether 
respondent-defendant was entitled to purchase the share of his sister 
appellant-plaintiff No.2, under Section 4 of the Act. 
45 
H 
46 
SUPREME COURT REPORTS [2002] SUPP. 1 S.C.R. 
A 
Disposing of the appeal, the Court 
HELD: I. The condition for application of Section 4 of Partition Act, 
1893 is that a dwelling house belonging to an undivided family must have 
been transferred to a person who is not a member of such family and such 
transferee sues for partition. If this pre-condition is satisfied then if any 
B member of the family being a shareholder undertakes to buy share of such 
transferee the Court is to make a valuation of such share in such manner 
as it thinks fit and direct the sale of such share to such share-holder. 
Section 4 of the Act deserves a liberal construction because its very object 
and purpose is to preserve the integrity of the dwelling house. (49-D, H; 50-A] 
c 
Ki1irode Chandra v. Saroda Prasad, 7 Ind. Cases 436 (Cal.); Mohomed 
Sulaiman Khan v. Mt. Amir Jan, AIR (1941) All 281; Krishna Pillai v. 
Parucutty Ammal, AIR (1952) Mad 33; Alley Hasan v. Toorab Hussain, AIR 
(1958) Pat 232; Paluni Dei v. Rathi Mallick, AIR (1965) Ori lll;Gautam 
Paul v. Debi Rani Paul and Ors., [2000) 8 SCC 330; Ghantesher Ghosh v. 
D Madan Mohan Ghosh and Ors., [1996) 11 SCC 446; Babu Lal v. Habibnoor 
Khan (dead) by Lrs. and Ors., (2000) 5 SCC 662 and Narashimaha Murthy 
v. Susheelabai (Smt.)and Ors., (1996) 3 SCC 644, referred to. 
2.1. In the context of the facts and circumstances of the case the High 
Court was not right in granting the petition filed by the respondent under 
E · Section 4 of the Act. In stricto senso the provision of Section 4 of the 
Partition Act has no application in the instant case. Neither can the 
plaintiffs who are daughters be said to be strangers to the family; nor is 
there any material to show that they have expressed their intention not 
to reside in the suit property or to transfer their interest in the sam~ to a 
F 
G 
person who is a stranger to the family. It is also to be kept in mind that 
the plaintiffs have acquired interest in the property by gift from their 
mother. Therefore they have stepped into the shoes of their mother. Under 
the circumstances the petition filed by the defendant under Section 4 of 
the Partition Act was not maintainable and was liable to be dismissed as 
premature. (58-B; 57-E, F) 
2.2. Keeping in view the object and purpose of preserving unity of 
the family dwelling house for occupation of members of the family the 
plaintiffs canno

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