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Babu Abdul Haq and ors. Vs. Moti Lal - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1923All293; 71Ind.Cas.983
AppellantBabu Abdul Haq and ors.
RespondentMoti Lal
Excerpt:
partition act (iv of 1893), sections 2, 3, applications under - proper time. - - i think the appeal must fail......in the house and he owns a larger share than one-half. the court of first instance made a decree for partition which was confirmed by the lower appellate court. in neither of those courts was any application made on behalf of the appellant under the provisions of the partition act, no. iv of 1893. in this appeal for the first time it is contended that, as the appellant owns a larger share than one-half, lie is entitled to avail himself of the provisions of the act, and to ask the court to sell the property instead of partitioning it and give the appellant the option of buying the plaintiff's share. in my opinion it is too late for the appellant to raise this contention. the provisions of tin; partition act apply, in my opinion, to the stage at which the suit is in the court of.....
Judgment:

P.C. Banerji, J.

1. This was a suit for partition of 5.48 shares in a house which the plaintiff purchased at auction. The appellant is one of the co-sharers in the house and he owns a larger share than one-half. The Court of first instance made a decree for partition which was confirmed by the lower Appellate Court. In neither of those Courts was any application made on behalf of the appellant under the provisions of the Partition Act, No. IV of 1893. In this appeal for the first time it is contended that, as the appellant owns a larger share than one-half, lie is entitled to avail himself of the provisions of the Act, and to ask the Court to sell the property instead of partitioning it and give the appellant the option of buying the plaintiff's share. In my opinion it is too late for the appellant to raise this contention. The provisions of tin; Partition Act apply, in my opinion, to the stage at which the suit is in the Court of first instance. The various provisions of the Act manifestly indicate that, if any action can be taken under the Act, it can only be taken in the Court of first instance before a decree for partition has been actually made. After a decree for partition has been made, after one of the co-sharers in the property has remained quiescent in both the Courts below, he could not be allowed to ask the final Court of Appeal to do for him what the Court might have clone if he had moved the Court when the case was under trial. I think the appeal must fail. There was nothing erroneous in the proceedings of the Courts below, specially as those Courts were not called upon to do what the appellant now seeks to be done. I dismiss the appeal.


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