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Mahabir Rai and ors. Vs. Mahadeo and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1927All686; 103Ind.Cas.367
AppellantMahabir Rai and ors.
RespondentMahadeo and ors.
Excerpt:
- - to such a case section 4; of the act clearly applied......and as they were sharers to the extent of five sevenths they were entitled to purchase the plaintiffs share. this contention of the defendants has been upheld by both the courts below, though on different grounds. the trial court was of opinion that section 2, partition act, was enacted for the benefit of persons owning more than a half share, and as the defendants owned a five-sevenths share in the house, they were entitled to purchase the plaintiffs' share. the lower appellate court was of opinion that the defendants were, in view of the provisions of section 4, partition act, 'in equity entitled' to buy the plaintiffs' share.4. in my judgment, in the circumstances of the present case, the courts below were bound to follow the procedure enjoined by clause (2) of section 3,.....
Judgment:

Iqbal Ahmad, J.

1. This appeal must be allowed. Exceptions to the general rule that a sharer in immovable property has a right to claim separate possession by partition of his share are provided for by Sections 2 and 4, Partition Act (Act 4 of 1893).

2. The principle underlying Section 2 of the Act is that a partition ought not to be made if by partition the intrinsic value of the property sought to be partitioned would be destroyed, and, in such a case, money compensation should be given in lieu of the share to which a share-holder may be entitled. Section 4 of the Act has application only to those cases in which a share in a 'dwelling house belonging to an undivided family' has been acquired by a stranger to that family, and that stranger claims partition of his share. To the present case, as would appear from the facts to be presently stated, Section 4 has no application.

3. The plaintiffs claimed partition of two houses marked A and B. They were granted a decree for partition of house B and there is no controversy with respects to that house in the present appeal. It is also common ground that the plaintiffs' share is two-sevenths and the defendants' share is five-sevenths in house A. The defendants maintained that house A was too small to admit of partition, and as they were sharers to the extent of five sevenths they were entitled to purchase the plaintiffs share. This contention of the defendants has been upheld by both the Courts below, though on different grounds. The trial Court was of opinion that Section 2, Partition Act, was enacted for the benefit of persons owning more than a half share, and as the defendants owned a five-sevenths share in the house, they were entitled to purchase the plaintiffs' share. The lower appellate Court was of opinion that the defendants were, in view of the provisions of Section 4, Partition Act, 'in equity entitled' to buy the plaintiffs' share.

4. In my judgment, in the circumstances of the present case, the Courts below were bound to follow the procedure enjoined by Clause (2) of Section 3, Partition Act.

5. It has been found by both the Courts below that the house in dispute cannot be conveniently partitioned. The defendants, who owned more than a half share in the house, invited the Court to sell the house. Thus, the case came within the purview of Section 2 of the Act. This request of the defendants having been followed by a similar request by the plaintiffs, who wanted to purchase the house, it became imperative on the Courts below to follow the procedure enjoined by Section 3(2), Partition Act.

6. I may point out that the case of Ilias Ahmad v. Bulaqi Chand [1917] 39 All. 672 that has been referred to by the learned District Judge has no application to the present case, In that case the claim for partition of a dwelling house owned by members of an undivided family was brought by a stranger, who had purchased a share in that house. To such a case Section 4; of the Act clearly applied. In the present case it is clear that the house in dispute is not 'a dwelling house belonging to an undivided family' nor is the claim for partition by a stranger to such a family.

7. The learned Judge has further referred to a case reported as Debendra Nath Bhattacharjee v. Hari Das Bhattacharjee [1910] 15 C.W.N. 552. In that case it was held that, if the nature of the property precludes a partition, the proper course open to the Court is to direct the sale of the property among co-sharers and the party in possession of the property has not a right to buy the share of the party not in possession. That case is opposed to the view taken by the learned Judge of the lower appellate Court. The learned Judge, while referring to that case seems to have been led away by a case reported at the foot-note of p. 555. The case so reported is distinguishable from the present case because the person who was allowed a compensation in that case, was a stranger to the family and the property sought to be partitioned was the family dwelling house in which the stranger had acquired an interest. As already remarked above, the house in dispute is not a dwelling house belonging to an undivided family and, therefore, that case has no application to the present case.

8. For the reasons given above, I allow this appeal, set aside the decree of the lower appellate Court and modifying the decree of the trial Court, remand the case to that Court, through the lower appellate Court, with direction to follow the procedure enjoined by Section 3(2), Partition Act with respect to house A. The plaintiffs will get the costs of this appeal, but the parties will bear their own costs of the Courts below.


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