Court : Allahabad
Reported in : 2005(4)AWC3669
..... doing justice between the parties. however, before proceeding further, it would be relevant to examine the provision of section 4 of the indian partition act, 1893, which is quoted below :'4. partition suit by transferee of share in dwelling-house.--(1) where a share of a dwelling-house belonging to an undivided family has ..... time simultaneously the court denies to itself the jurisdiction to extend time.'11. examining the object and the right set in section 4 of the partition act, which is also a beneficial legislation, in the background of the observations of the apex court, it is apparent that the court below exceeded ..... though the order was confirmed vide order and judgment dated 23.4.1986, in consonance with section 4 of the partition act (hereinafter referred to as the act), an option was given to the petitioners to buy out the share from harkesh after paying the value to be determined by the ..... pay rs. 15,000 within one month, harkesh would execute a sale deed in their favour within 15 days failing which he could get the partition decree executed. the petitioners, before the expiry of the period made an application on 24.4.1993, alleging therein that they were prepared to ..... undivided share in the ancestral dwelling house in favour of harkesh the contesting respondent no. 3. harkesh filed original suit no. 713 of 1982 for partition and possession of his share. the trial court decreed the suit holding that harkesh was entitled to half share in the suit property. on appeal .....Tag this Judgment!
Court : Delhi
..... there are six legal heirs of late sh.joginder singh dhiman and one of sh.inderjeet singh dhiman. in terms of section 2 of the indian partition act, 1893, if considering the number of the shareholders, a division of the property cannot take place then the court can direct the sale of the property ..... local commissioner in terms of which decree has been passed. even otherwise, it is submitted that the said 50% can also be reasonable and conveniently partitioned amongst the judgment-debtors (or legal heirs of sh.joginder singh). 31. it is denied that on 30th november, 2010, balwant singh came to ..... both the witnesses above mentioned signed as witnesses before each other and before the executant chanan ram and put their signatures respectively. ? 29. the alleged partition deed/memorandum is denied. it is not a registered document and there being no original, it cannot be looked into for any purpose. this has ..... unless the will is probated or letters of administration granted, the same cannot be relied upon or that the will cannot be the basis of partition of suit property unless probated. no such pleas were raised and in any event, all pleas raised by judgment-debtors were dealt with while ..... problem of the decree-holder and has no concern with the judgment-debtors. even otherwise, it is submitted that the said 50% can also be partitioned amongst the judgment-debtors and such physical division is possible. the judgment of badri narain (supra) is not applicable to the facts and circumstances of .....Tag this Judgment!
Court : Supreme Court of India
Reported in : AIR1973SC643; (1972)2SCC721; 1SCR904; 1973(5)LC245(SC)
..... appeared to the court that it would be more beneficial for the parties interested. the provisions of the english partition act do not appear to be in pari materia with those of the indian partition act and we do not consider that any assistance can be derived from the english law on the points which ..... hailsham edn.) oaras 745 to 747. it has been pointed/out that in the enetfsh partition act 1868 (31, 32 victoriae, cap. 40) sections 3 and 5 are similar in terms to sections 2 and 3 of the indian partition act. the statement in halsbury's laws of england and the law laid down in the ..... of division by metes and bounds the alternative prayer was necessarily made in para 7 which would satisfy the requirements of section 3 of the partition act.21. our attention has been invited by the learned counsel for the appellant to certain english decisions and in particular to the case of ..... in such a manner as the court might think proper. in our opinion, this was sufficient compliance with the requirement of section 3 of the partition act. section 3(1) does not contemplate a formal application *being filed in every case. the words employed therein simply mean that the other shareholder ..... parties had conceded that the property was incapable of being divided by metes and bounds and that it should be sold under the provisions of the partition act. the defendant applied to purchase the property under section 3. a commissioner was also appointed to report whether the property was capable of division and .....Tag this Judgment!
Court : Allahabad
Reported in : 2005(2)AWC1842
..... not been filed by the purchaser of a share being stranger to the family, the application of the plaintiff under section 4 of the indian partition act is maintainable? -6. section 4 of the indian partition act is as follows :'4. partition suit by transferee of share in dwelling house.--(1) where a share of a dwelling house belonging to an undivided family has been transferred ..... the following three substantial question of law :i. whether on the facts and circumstances established in the case, the application under section 4 of the indian partition act could be allowed?ii. whether section 4 of the indian partition act is applicable when the appellant is in possession of his portion (half house) since its purchase in the year 1966 without any objection from anybody ..... held that the disputed house is a dwelling house. the learned munsif also rejected the contention of the appellant about the maintainability of the application under section 4 of the indian partition act moved by the plaintiff. after relying on a decision of calcutta high court in satish kumar mitra v. kaliappa : air1981cal278 , in which it was held that section 4 ..... the judgment and decree of first additional munsif, bahraich, dated 7.11.1981 in regular suit no. 216 of 1970 allowing the plaintiffs' application under section 4 of the indian partition act.2. i have heard shri mohd. arif khan, the learned counsel for the appellants and ms. veena sinha, the learned counsel for the respondents on the substantial questions of .....Tag this Judgment!
Court : Kolkata
Reported in : (1999)2CALLT141(HC)
..... municipal corporation delhi v. gurnam kaur, 1988(1) scc 101].16. the consistent view of this court is that the provision of section 4 of the partition act is application even in cases where part of dwelling house is in occupation of a tenant. (see kalipada v. tulsidas reported in : air1960cal467 where all the ..... the case of narashimaha v. susheela bal (supra) cannot have any application to a case dealing with section 4 of the partition act. after all, a decision is an authority for what it decides and not what can be logically deduced therefrom. even a slight distinction in fact ..... ' by the members of the family thus specifically excluding the operation of that section to a house partly tenanted. in section 4 of the partition act there is no such restriction that it should be wholly occupied by the members of the family. therefore, the decisions of the supreme court tn ..... trial judge has rejected such application on the sole ground that the petitioner in the past filed a similar application under section 4 of the partition act for purchasing the share of plaintiff no. 2 and by order no. 255 dated july 8, 1978 the said application filed by the petitioner ..... been challenged before higher forum.5. after the aforesaid decision passed by this court, the present petitioner filed an application under section 4 of the partition act for purchasing the 1/4th share of the plaintiff no. 2 under changed circumstances.6. by the order impuged, the learned trial judge has rejected .....Tag this Judgment!
Court : Kolkata
Reported in : (1993)2CALLT64(HC),97CWN1161
..... the share pre-emptible in compliance with section 4 of the partition act, so that no injustice is inflicted on either the pre-emptor or the pre-emptee. the legislative intent is to prevent intrusion of stranger ..... it is well settled by series of judicial authorities that the sale in implementation of a right of pre-emption under section 4 of the partition act is a forced sale and as such the court is required to be alert and careful in the matter of determination of the value of ..... instant proceeding it appears, as stated already, that on 30th july, 1987, the plaintiff filed an application for appointment of a commissioner for effecting partition by metes and bounds without disclosing therein that there was a previous order for appointment of valuation commissioner in terms of the preliminary decree, declaring the ..... such a right of pre-emption, exercisable against the stranger purchaser, subsists till the termination of the suit and long pendency of a suit for partition is a common feature, which has also been taken into consideration by judicial authorities in directing valuation of the respective shares on the basis of ..... respective shares of the parties but due to absence of finality of commissioner's report upto the year 1987, the plaintiffs filed an application for partition by metes and bounds, and, by order no. 300 dated 6.2.1988 a pleader commissioner was appointed in terms of prayer of the plaintiffs .....Tag this Judgment!
Court : Karnataka
Reported in : AIR2007Kant3;
..... the usual course, the appellant bank is said to have filed formal objection to ia 4 filed by the applicant under section 4 of the partition act, 1893. in the objections, it is contended that the application filed in the final decree proceeding is not maintainable. while admitting that the preliminary ..... partha sarathi ghosh - : supp1scr45 and punjab national bank v. r.l. void and ors. : 2004crilj4246 .9. section 4 of the partition act 1893 reads as under:partition suit by transferee of share in dwelling house.1. where a share of a dwelling house belonging to an undivided family has been transferred to a ..... was also impleaded as one of the party to the execution proceedings. on such impleadmerrt, application was also filed under section 4 of the partition act by the applicants. on consideration of the application, trial court has ordered for valuing the share of the property purchased by the bank and ..... defendant was sought to be acquired by the applicants in execution proceedings exercising the right of preemption as provided under section 4 of the partition act. the intention of the legislature as per the ratio of the apex court and other high courts is clear that always the stranger ..... trial court in final decree proceedings have committed an error holding that the applicants are entitled to exercise right under section 4 of the partition act and thus directing the appointment of an engineer to value the property. the right that was available to the bank for having purchased .....Tag this Judgment!
Court : Karnataka
Reported in : ILR2007KAR3871; 2008(4)KarLJ273
..... section 54 or under order 26 rule 13 and 14 cpc then court shall proceed under section 2 and 3 of partition act, 1893. in cases not covered by section 2 and 3 of the partition act the court has the discretionary power to adopt equitable method. one such equitable method is called owelty. according to owelty ..... v. nil ratan sarkar : 3scr467 held as under:19. thus considered, it is clear that the provisions of sections 2 and 3 of the partition act are not applicable to the peculiar circumstances of the case. at the same time, there is a concurrent finding of fact recorded by the courts below that ..... hence, this writ petition in so far as it relates to dismissal of i.a. no. ii filed by the petitioner under section 3 of the partition act.3. heard arguments on both the side and perused the entire writ papers.4. it is not in dispute that the schedule property consists of a ..... the schedule property at rs. 8.00 lakhs. subsequently the first respondent filed an application, i.a. no. i under section 2 of the partition act seeking public auction of the schedule property and to distribute the sale proceeds amongst the sharers. petitioner filed an application, i.a. no. ii under section ..... 3 of the partition act to buy the shares of first and second respondents in terms of the valuation made by the pwd engineer. the first respondent filed another application, i .....Tag this Judgment!
Court : Supreme Court of India
Reported in : AIR2007SC2651; 2008(5)LHSC3061; 2007(5)ALLMR(SC)456; JT2007(9)SC223; 2007(6)MhLj1; (2007)6MLJ1749(SC); 2007MPLJ345(SC); (2007)148PLR204; 2007(9)SCALE169; (2007)7SCC83; 2008(5)LH(SC)3061; 2007AIRSCW4789; 2007LawHerald(SC)2189.
..... sale took place, the matter was allowed to linger until the plaintiff sought assignment of the rights of the others by belatedly invoking section 3 of the partition act, which request was rightly declined. it was then that the plaintiff brought up the matter before a division bench by way of appeal, obviously belated, ..... counsel submitted that the spirit of section 3 of the partition act pervades and that would also justify the confirmation of the sale in favour of the plaintiff. learned counsel also pointed out that there will be no ..... also pointed out that the plaintiff after all, was entitled to 83 out of 124 shares and going by the spirit of section 3 of the partition act, was entitled to purchase the shares of the others though the plaintiff had not taken proper steps in that behalf at the appropriate time. but learned ..... 1,06,62,000/-. at this stage, wisdom seems to have dawned on the plaintiff, who purported to make an application under section 3 of the partition act seeking to buy the shares of the other sharers. this petition was rightly dismissed as the prayer was barred by the order for sale already made. ..... of a moiety of shares, did not seek to enforce its rights to buy the rights of the other sharers in terms of section 3 of the partition act. the court, on that application by defendant no. 8, took note of the report of the commissioner that it was not convenient to divide the .....Tag this Judgment!
Court : Supreme Court of India
Reported in : 2007(9)SCALE141; (2007)10SCC588
..... appellate tribunal held as follows:in the result-(i) on the first point, we hold that the regulatory commission has neither the authority nor jurisdiction in terms of the electricity act 2003 to fix a tariff between the appellant, a consumer and the second respondent a generator being a commercial transaction pure and simple, which relationship is governed by an existing ..... ppa. we also hold that it is not an order or a tariff determination/order by the regulatory commission falling under one or more the provisions of the electricity act 2003, which alone is appellable.(ii) on the second point, we hold that the regulatory commission as an expert arbitral tribunal has resolved the dispute as referred to it by .....Tag this Judgment!