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Chintaharan De Vs. Sm. Kadambini Raj W/O Har Kumar Raj and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1938Cal171,173Ind.Cas.812
AppellantChintaharan De
RespondentSm. Kadambini Raj W/O Har Kumar Raj and ors.
Excerpt:
- .....that section 4, partition act of 1893, does not apply to a case where a share has been acquired in execution of a decree. under section 2 (d), t.p. act, it is stated that nothing contained in the act shall be deemed to affect a transfer by operation of law or in execution of a decree or by an order of a court of competent jurisdiction. what the learned advocate in effect desires is that the provisions of section 2 (d), t.p. act, shall be imported in considering the meaning of the word 'transfer' in section 4, partition act of 1893. it is urged that the word 'transfer' in section 4, partition act, should be taken to mean that it is used in the same sense as in the transfer of property act. in other words section 2 (d), t.p. act, should be held to govern the meaning of the word 'transfer'.....
Judgment:

M.C. Ghose, J.

1. This is an appeal by the plaintiff in a suit for partition of plot No. 622 which is a homestead of the defendants. After passing through various Courts, the High Court directed that a preliminary decree should be passed and that thereafter the claim of defendant 1 to purchase the share of the plaintiff according to the provisions of Section 4, Partition Act, should be considered and decided by the Court. Thereupon the case was sent back to the trial Court and the trial Court held that defendant 1 was entitled to purchase the share of the plaintiff at Rs. 75. That decree was affirmed in appeal.

2. Many points were taken in the Court of Appeal below. In this Court the learned advocate takes only one point, namely that Section 4, Partition Act of 1893, does not apply to a case where a share has been acquired in execution of a decree. Under Section 2 (d), T.P. Act, it is stated that nothing contained in the Act shall be deemed to affect a transfer by operation of law or in execution of a decree or by an order of a Court of competent jurisdiction. What the learned advocate in effect desires is that the provisions of Section 2 (d), T.P. Act, shall be imported in considering the meaning of the word 'transfer' in Section 4, Partition Act of 1893. It is urged that the word 'transfer' in Section 4, Partition Act, should be taken to mean that it is used in the same sense as in the Transfer of Property Act. In other words Section 2 (d), T.P. Act, should be held to govern the meaning of the word 'transfer' in Section 4, Partition Act. To take this view would be equivalent to legislation. Though there is no section limiting the meaning of the word 'transfer' in the Partition Act, we are asked in effect to hold that the word 'transfer' only means a transfer by private agreement and does not mean a transfer by operation of law. The appeal is dismissed with costs.


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