Satyabhama Debi vs Bhagaban Misra and Others

G.K. Misra, C.J.—One Jasoda filed a suit for partition against Defendants 1 to 3. She subsequently added Defendants 4 to 6, the transferees in respect of plot No. 9 in B schedule of the plaint, who had purchased the same from Defendants 1 to 3 on 2-8-1963. During the pendency of the suit Jasoda died. Her daughter Satyabhama (Petitioner) was substituted in her place. Preliminary decree was passed in her favour decreeing partition as well as relief u/s 4 of the Partition Act "against Defendants 4 to 6. That decree has become final. The Petitioner''s relief against Defendants 4 to 6 u/s 4 of the Partition Act can no longer be questioned. In the final decree proceeding the Petitioner filed an application that Defendants 11 and 12 were joint purchasers of plot No. 9 in schedule B with Defendants 4 to 6 and that she should be granted relief u/s 4 of the Partition Act. This prayer has been rejected by the learned Subordinate Judge. The civil revision has been filed against the impugned order dated 6-12-1973.

Two questions have been canvassed:

(1) Whether the Petitioner can seek relief u/s 4 of the Partition Act.

(2) Whether the relief is maintainable in the final decree proceeding once Defendants 11 and 12 were not made parties in the suit.

It has been consistently held by this Court that a married daughter would be treated as a member of the undivided family qua the dwelling house-see Paluni Dei Vs. Rathi Mallick and Others, .

There is, however, a more formidable reason why the Petitioner is entitled to relief u/s 4 of the Partition Act in respect of the alienation made by Defendants 1 to 3 in favour of Defendants 11 and 12. On the filing of the suit for partition there was disruption of the joint status in the family of Jasoda. On the death of Jasoda, her daughter (Petitioner) stepped into her shoes and would be entitled to the same relief to which Jasoda was entitled at the time of the institution of the suit. Once the cause of action accrued, the same cannot be destroyed merely by the accident of death of the Plaintiff filing the suit. On such analysis even if the Petitioner was not entitled to the relief u/s 4 of the Partition Act by being treated as a member of the undivided family qua the dwelling house, she would be entitled to relief as having stepped into the shoes of Jasoda. The learned Subordinate Judge therefore exercised jurisdiction illegally in refusing relief u/s 4 of the Partition Act.

The only other question for consideration is whether the Petitioner is entitled to such relief in the final decree proceeding. Even though Defendants 11 and 12 were not made parties to the suit, an application was filed to implead them in the final decree proceeding. A question of granting relief u/s 4 of the Partition Act can be well taken up at the final decree stage and there is no legal bar to it. Merely because at an earlier stage Jasoda or the Petitioner did not implead Defendants 11 and 12, the relief cannot be denied to them simply on account of delay. The application to implead Defendants 11 and 12 in the final decree stage to canvass the question of relief u/s 4 of the Partition Act is therefore maintainable.

Some evidence was led by the Petitioner and Defendants 11 and 12 on this question during the final decree proceeding. The learned Subordinate Judge has not considered that evidence. Now he will re-examine the matter and pass final orders as to what reliefs would be granted u/s 4 of the Partition Act, on the evidence already recorded.

In the result, the impugned order is set aside as being contrary to law. The case would go back to the learned Subordinate Judge who will dispose of the matter within two months from today with intimation to this Court. The civil, revision is allowed with costs. Hearing fee of Rs. 100/ - (one hundred). Records be sent back within one week.