A single judge bench of Justice Sunil Dutta Mishra of the Patna High Court in the case of Mahendra Prasad Vs Uma Shankar Prasad held that the dwelling house belonging to an undivided family is not one where the plaintiff actually resides but includes all other appurtenance used by the members of that undivided family as part of their residential house.
Brief facts:
The factual matrix of the case is that respondent no. 1 filed the title suit for pre-emption in respect of the suit property stating that the disputed land is a portion of ancestral dwelling house of the plaintiff. It was alleged by respondent no. 1 that Petitioner sold the suit land without any consent of the plaintiff and therefore the respondent filed the suit for pre-emption in order to get the land back on the same consideration. Thereafter, the petitioner filed the written statement and rejected the claims made by respondent No. 1. Furthermore, the order of interim injunction was passed when the plaintiff filed the petition under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure. Then, the order was challenged by way of filing the present appeal.
Contentions of the Plaintiff:
The learned counsel appearing on behalf of the plaintiff contended that there exists no dwelling house in the disputed plot rather it is the open land that was purchased by the petitioner in order to construct his house.
It was furthermore contended that there exists no prima facie case and there is no balance of convenience in favor of the plaintiff and also no irreparable loss would incur to the plaintiff if injunction is not granted. Thereafter, it was contended that Section 44 of the T.P. Act and Section 4 of the Partition Act apply only to dwelling houses and are not applicable in this circumstance.
Contentions of the Respondent:
The learned counsel appearing on behalf of the respondent contended that the partition of the suit property is still pending. It was furthermore contended that the petitioner has no valid ground and the appeal deserves to be dismissed.
Observations of the court:
The hon’ble court observed that the purpose of provision 44 is to prohibit strangers from entering the family residence, which is authorized to be possessed and enjoyed solely by family members despite transferring a part in favor of a stranger. Both provisions under Section 4 of the Partition Act and Section 44 of the T.P. Act are complementary to each other.
It was furthermore observed that even if a family is divided in status that is, holding the property as tenants in common but undivided qua the property, or the property hasn't been divided by metes and bounds the family would still be covered by Section 44 of the Act's requirements. Thereafter, a dwelling residence belonging to an undivided family must be the subject of the transfer in order for the second paragraph of Section 44 of the Transfer of Property Act to be applied, and the transfer must be of a part in the same to a person who is not a family member.
It was noted that a "dwelling house" belonging to an undivided family includes all additional belongings used by the members of that undivided family as part of their residential house, even though the plaintiff does not actually reside in it.
Based on these considerations, the Hon’ble Court supported the decision of the trial court.
The decision of the court:
With the above direction, the Hon’ble Court dismissed the application.
Case Title: Mahendra Prasad Vs Uma Shankar Prasad
Coram: Hon’ble Mr. Justice Sunil Dutta Mishra
Case No.: Civil Misc. Jurisdiction No. 1888 of 2017
Advocates for the Petitioner: Mr. S.B.K. Manglam, Advocate with Ms. Anita Kumari, Advocate
Advocates for the Respondent: Mr. Bhubneshwar Prasad, Advocate with Mr. Manoj Kumar Singh, Advocate
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