Jharkhand High Court
Pravin Kumar Badiyani vs Harbanslal on 27 March, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 475 of 2017
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Pravin Kumar Badiyani -Petitioner
Versus
1. Harbanslal
2. Mohan Lal
3. Jagdish Lal
4. Sarjit Lal
5. Sohan Lal
6. Chaman Lal
7. Smt. Nirmala Rishi
8. Smt. Kiran Verma --Respondents
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CORAM: HON'BLE MR. JUSTICE RAJESH KUMAR
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For the Petitioner : M/s. Indrajit Sinha, Puja Agarwal, Advs
For the Respondents :
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05/27.03.2023 Heard learned counsel for the petitioner.
2. The present writ petition has been filed for quashing the judgment dated
28.11.2016 passed by learned District Judge-V, East Singhbhum, Jamshedpur
in Miscellaneous Appeal No. 05 of 2012, whereby and whereunder the appeal
preferred by the respondent no. 1 against the order dated 02.04.2012 passed in
Title (Partition) Suit No. 45 of 2011 has been allowed and the petitioner has
been directed to remove his articles from the suit premises and to vacate the
possession of the suit premises.
3. From the pleadings and arguments, it appears that the respondent no. 1
has filed a partition suit being Title (Partition) Suit No. 45 of 2011 against the
respondent nos. 2 to 7 claiming therein 1/8 th share of property described in the
schedule of plaint. It further appears that during pendency of the Title Suit, the
present petitioner has purchased the suit land and this fact has been noted by
the court below in Miscellaneous Appeal No. 05 of 2012. The relevant portion
is quoted hereinbelow:
"32. In the present case the defendant No. 3 (petitioner herein) had
entered into an agreement for purchase of undivided share in the
family dwelling house pre-supposes that he has supposed to be
aware of the limited and restricted title of the respondent No. 1 and
2 and the bar of joint possession provided in the second paragraph
of Section 44 of the said Act. In the present he had purchased the
property long after the suit was instituted namely on 13-1-92.
Almost the same was the situation as is obtained in the case of
Dorab Cowasji Warden (supra wherein it has been held that, "
This provision in the agreement clearly shows that that the fourth
respondent knew that respondents 1 to 3 have only a limited right
to transfer their undivided one half share to a stranger purchaser
and they contemplated litigation in this regard. The said sale was
itself hurriedly executed. In a hush-hush manner keeping the
entire transaction secret from the appellant. The purchasers were
also inducted in the premises in a manner which clearly suggests
that the respondents were attempting to forestall the situation and
to gain an undue advantage in a hurried and clandestine manner
defeating the appellant's attempt to go to court for appropriate
relief."
4. On a petition under Section 4 of the Partition Act, 1983 the order
has been passed against this petitioner for transferring the suit property in
favour of respondent no.1. The said order has been challenged by filing
Miscellaneous Appeal No. 05 of 2012, which has been dismissed after noting
that the share in the dwelling house has been transferred, although the partition
suit was pending and the property in question is the joint family property
5. Having heard learned counsel for the parties and on perusal of the
record, it appears that admittedly the suit property is dwelling house and it has
been transferred during pendency of the partition suit and that too to a stranger
to the family.
6. Section 4 of The Partition Act, 1893 is quoted hereinbelow:
"4. Partition suit by transferee of share in dwelling-house-(1)
Where a share of a dwelling-house belonging to an undivided
family has been transferred to a person who is not a member of
such family and such transferee sues for partition, the Court
shall, if any member of the family being a shareholder shall
undertake to buy the share of such transferee, make a valuation
of such share in such manner as it thinks fit and direct the sale of
such share to such shareholder, and may give all necessary and
proper directions in that behalf.
(2) If in any case described in sub-section (1) two or more
members of the family being such shareholders severally
undertake to buy such share, the Curt shall follow the procedure
prescribed by sub-section (2) of the last foregoing section.
Jurisprudence of Section 4 of The Partition Act is quite clear and
the law has been enacted for the purpose of saving the privacy and gravity of
the family members of the joint family. Dwelling house is a private residence
and no stranger can be allowed to enter into dwelling house. If any share holder
inducts a stranger into a dwelling house, then remedy has been provided under
Section 4 of the Act as noted above. If any shareholder files a petition and
shows his willingness to purchase the share, then the stranger has to be ousted.
Presence of the stranger in a dwelling house is nothing but cruelty to the family
members of the joint family residing in the joint dwelling house also.
7. From perusal of the previous order dated 28.02.2022, it further
appears that the respondent no. 1 had died, but till date no substitution petition
has been filed.
8. In view of the above discussions, this Court finds no reason to
keep the matter pending before this Court that too under writ petition.
Accordingly, the writ petition is hereby dismissed.
(Rajesh Kumar, J)
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