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Khanderao Dattatraya Wakde Vs. Balkrishna Mahadeo Phulambrikar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberCrose-Appeal Nos. 825 of 1920 and 1 of 1921
Judge
Reported in(1921)23BOMLR1083
AppellantKhanderao Dattatraya Wakde;balkrishna Mahadeo Phulambrikar
RespondentBalkrishna Mahadeo Phulambrikar;khanderao Dattatraya Wakde
Excerpt:
.....dwelling house-transferee of a sharer, suing for partition-valuation and purchase of transferee's share- share of a transferee not suing for partition cannot he valued and paid off.;a dwelling house was owned by three sharers, one of whom transferred his undivided share to the plaintiff, and the other to defendant no. 3. the plaintiff having obtained a decree for partition of his one-third share in the house, the remaining co-sharer (defendant no. 2) applied, under section 4 of the partition act, to have valued and paid off not only the share of the plaintiff but that of defendant no. 3 also :-;that, though defendant no. 2 was entitled, under section 4 of the partition act, to have a valuation made of the share of the plaintiff, yet be could not have valued the share of defendant no. 3..........share is valued under a 4, and defendant no. 2 pays its value, then there is an end to the partition suit, as there is no longer any plaintiff to the suit, and unless one of the defendants applies to be made a plaintiff in his place, the proceedings must necessarily abate. however, that is a matter for consideration when the valuation of plaintiff's share has been made and the second defendant has paid the amount of the valuation. at present this appeal must be allowed to this extent, that the share of she third defendant cannot be dealt with under section 4 of the partition act.5. second appeal no. 851 of 1920 filed by khanderao is successful, while the appeal filed by the plaintiffs fails, so that second appeal no. 851 of 1920 is allowed with costs against the second defendant,.....
Judgment:

Norman Macleod, Kt., C.J.

1. In this case a decree was passed in a partition suit instituted by one Phulambrikar asking for partition of his one-third share of a certain house in Poona. The house is owned by the following persons in equal shares, Phulambrikar who had bought one-third from Bhikaji, a member of the original family of owners, Balvant the second defendant a member of that family, and Khanderao the third defendant who derives his title through Gangadhar, a member of the original family. After the partition decree was passed, applications were made by the second defendant, under Section 4 of the Partition Act, asking the execution Court to take action under that section with regard to the shares of the plaintiff and the third defendant.

2. The lower Court granted the application and an appeal against that decision was dismissed. Undoubtedly the second defendant is entitled to have a valuation made of the share of the plaintiff who is a transferee from a member of the original family. But the lower Courts have also granted the application of the second defendant with regard to the share of the third defendant. That could only be done if the third defendant could be considered as a transferee from a member of the family suing. for partition. He is a transferee from a member of the family, but it certainly cannot be said that he is suing for partition.

3. The object of Section 4 of the Partition Act is to enable the members of a family in the case of one of their member having transferred his share to an outsider who seeks partition, to buy out that outsider by having his share valued; and in ordinary cases such, an applicaiion would_ be made before any preliminary decree was passed in the suit. That would then put an end to the suit unless one of the defendants wished to continue and apply to have his name inserted as plaintiff in the place of the plaintiff' who had been bought out.

4. In this case the proceedings had gone so far that the Courts decided the question of partition, but the method of partition has not been decided. That, however, does not make any difference, as it is not suggested that the application of the second defendant is too late. But it seems to me the result must be that if the plaintiff's share is valued under a 4, and defendant No. 2 pays its value, then there is an end to the partition suit, as there is no longer any plaintiff to the suit, and unless one of the defendants applies to be made a plaintiff in his place, the proceedings must necessarily abate. However, that is a matter for consideration when the valuation of plaintiff's share has been made and the second defendant has paid the amount of the valuation. At present this appeal must be allowed to this extent, that the share of She third defendant cannot be dealt with under Section 4 of the Partition Act.

5. Second Appeal No. 851 of 1920 filed by Khanderao is successful, while the appeal filed by the plaintiffs fails, so that Second Appeal No. 851 of 1920 is allowed with costs against the second defendant, and Second Appeal No. 1 of 1921 is dismissed with Costs in favour of the second defendant.

Shah, J.

6. I agree. It is clear that defendant No. 2's application under Section 4 of the Partition Act could succeed only against the person who is a transferee from a member of an undivided family and who sues for partition. I do not desire to express any opinion as to what the effect of the application of defendant No. 2 being granted against the plaintiff under Section 4 would be upon the suit at the stage at which the right to buy out the plaintiff is asserted by the defendant No. 2. That question does not arise at present. But I feel quite clear that Section 4 is limited to the transferee who sues for partition. The right '; given to a sharer to buy out a transferee who is not a member of the family is limited to a transferee who sues for partition and cannot be extended to any defendant co-sharer who may claim his share in a partition suit.


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