Court : Mumbai
Reported in : AIR1979Bom41; (1980)82BOMLR204; 1979MhLJ624
..... to pay all costs of or incident to the application or applications.' 12. considering the two sections together, in the light of section 8 of the partition act, 1893, which makes the orders passed by the courts as decrees, i am of the opinion that, in the absence of any words of limitation in section ..... air 1925 mad 1234, where it was laid down by kumara-swami sastri and krishnan, jj. that the proper time to apply under section 3 of the partition act, 1893 is before a court makes an order under section 2. so, according to mr. gupte, when under section 2 sale has been ordered, a sharer ..... holding that the hearing of the application under section 3 made in the present case was tenable after the court had ordered sale under section 2 of the partition act, 1893 on dec, 4, 1976.8. in support of his above argument, mr. gupte relied on the decision of the madras high court in angamuthu muda ..... and order dated sept, 2, 1977, re-fused to confirm the sale held by the commissioner, because he allowed the application under section 3 of the partition act, 1893. the said decision is challenged in the above first appeal by the auction purchaser,7. mr. gupte, the learned counsel appearing for the auction purchaser, contended ..... , 1977, defendants 1 and 2, who are respondents nos. 2 and 6 in the above first appeal, made an application under section 3 of the partition act, 1893; applying for leave of the court to buy at a valuation the share or shares of the party or parties asking for a sale.5. the said .....Tag this Judgment!
Court : Karnataka
Reported in : ILR2008KAR13; 2008(3)KarLJ129; 2007(4)KCCR2566; 2007(6)AIRKarR228; AIR2008NOC69; 2008(2)ICC482(DB)
..... parties to the suit are agreeable for sale of the schedule property and to distribute the sale proceeds among them as per their entitlement. under the circumstances, the provisions of partition act, 1893 are applicable to the facts of the case.24. learned counsel for legal representatives of defendant no. 5 contend that the impugned order is contrary to the mandatory requirement of ..... . therefore we are of the considered opinion that wherever tile property cannot be divided and separated as specified under section 54 or order 26 rule 13 cpc, the provision of partition act, 1893 will step in to resolve the controversy between the parties and to the benefit of shareholders to enjoy the fruits of decree. there may be cases not covered under section ..... jurisdiction to pass the impugned order and that the same is contrary to the modified decree in rfa no. 381/1993 passed by this court?iii) whether the provisions of partition act 1893 are not applicable?iv) whether the impugned order passed by the trial court is opposed to principles of natural justice?v) whether the impugned order is not a speaking order ..... property cannot reasonably or conveniently be divided and further that the sale of the schedule property is beneficial for all the share holders. he further contend that the provisions of partition act 1893 are not applicable to the facts of this case. it was his further contention that the trial court without considering the claim of the legal representatives of defendant no. 5 .....Tag this Judgment!
Court : Andhra Pradesh
Reported in : AIR2007AP213
..... decision in harmat bibi v. prodosh kumar bajpayee 1988 (supp) scc 507 wherein the apex court while explaining the object of section 4 of the partition act, 1893 held as hereunder:on a plain reading of the provision of section 4 it is clear and evident that when an application is made by co- ..... the plaintiff, the respondents in the appeal, on appreciation of over all facts and circumstances taking into consideration the provisions of the partition act, 1893, and also the provisions of the hindu succession act, 1956, as well, this court is inclined to remand the matter enabling the parties to move appropriate applications under the provisions of ..... present suit?6. whether the appellants are entitled to put forth the plea that they are entitled to invoke the provisions of the partition act 1893 in the facts and circumstances of the case?7. if so, to what relief the parties would be entitled to?19. points ..... the partition act, 1893 and it is also made clear that the parties are at liberty to have adjustment by making appropriate payments of the amounts ..... father, the first appellant. the learned counsel also further would contend that though the plea of applicability or otherwise or invoking the pro-visions of the partition act, had not been urged, this being a dwelling house, liberty can be given to these parties, who are continued to be in possession of the .....Tag this Judgment!
Court : Delhi
Reported in : AIR1984Delhi168; 1984(6)DRJ33; 1984RLR44
..... a complete misunderstanding of the procedure to be followed under the partition act, 1893, in the particular case section 2 of the act is as : '2power to court to order sale instead of division in partition suits.- whenever in any suit for partition in which, if instituted prior to the commencement of this act, a decree for partition might have been made, it appears to the court that ..... .(1) two applications under the partition act, 1893, have led to this regular first appeal which has been filed under section 8 of the partition act read with section 96 of the code of civil procedure.(2) the facts giving rise to the two applications can first be shortly stated. shrimati radha rani was the plaintiff in a suit for partition in which she claimed half ..... and cannot order the same on its own. there seems to be a general belief that property subject to a partition suit can be sold even without any such a request, in this connection, it may be recalled that the partition act of 1893 was passed only with the object of giving the court power to sell the property, if necessary. the following quotations ..... from the statement of objects and reasons in the act are self-explanatory :- 'thatsection, however only authorises the court to divide the property, and in .....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 : Supreme Court of India
Reported in : AIR2010SC53; 2009(57)BLJR1293; JT2009(3)SC616; 2009(3)SCALE865; 2009(3)LC1193(SC):2009AIRSCW5572:2009(2)LHSC1095
..... of rs. 24,00,000/-66. the core question which arises for our consideration is as to whether the said purported auction was held de'hors the provisions of the partition act, 1893 or in accordance therewith. indisputably the property situated at netaji subhas road, calcutta, is a double storeyed building on a land measuring 12 = cottah. it is situated at a ..... set aside.69. when a property is put to auction in a suit for partition, the provisions of the partition act, indisputably, shall apply.70. section 2 of the partition act, 1893 provides that whenever in a suit for partition in which, if instituted prior to the commencement of the act, a decree for partition might have been passed, it appears to the court that, by reason of ..... order was passed on the basis of an agreement between the parties. ascertainment of valuation of the suit property was directed in terms of sections 2 and 3 of the partition act. the said order indisputably had not been varied, altered or modified.73. azimganj properties had initially been put in two lots. however, subsequently the defendants-respondents through their application ..... meeting dated 30th july, 1983 ; application of the respondents dated 16th august, 1983 and from the order dated 10th june, 1984, it is clear that the provisions of the partition act shall apply, particularly when in view of the decision of this court in k. tamamurthi iyer (supra), neither any aforementioned application was necessary nor any specific finding thereto was imperative .....Tag this Judgment!
Court : Mumbai
Reported in : AIR1988Bom321; 1988(2)BomCR615; (1988)90BOMLR45
..... and the sale proceeds distributed between the plaintiffs and the defendants. the original defendants submitted that they had become entitled to apply to court under section 3 of the partition act, 1893 (hereinafter called 'the act') and, accordingly, applied for leave to buy at a valuation the share of the plaintiffs in the properties. the original defendants asked the court to order a valuation ..... the supreme court in r. ramamurthi aiyar v. raja v. rajeswararao, : 1scr904 . it was said thus :'it would appear from the objects and reasons for the enactment of the partition act that as the law stood the court was bound to give a share to each of the parties and could not direct a sale or division of the proceeds. there ..... a right to buy the others out at a valuation to be determined by the court.'10. the provisions of section 2 provide an alternative to the decree for partition by metes and bounds that, prior to the commencement of the act was obligatory. the provisions can be applied only when the time is ripe for the passing of a decree for ..... 2, 3 and 8 thereof are relevant and read thus :'2. whenever in any suit for partition in which, if instituted prior to the commencement of this act, a decree for partition might have been made, it appears to the court that, by reason of the nature of the property to which the suit relates, or of the number of the shareholders, .....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 : Gujarat
Reported in : AIR1980Guj110
..... courts in india. the question referred to the full bench is accordingly answered as under:-8. on a true interpretation of section 4 of the partition act, 1893, we hold that the right conferred thereunder to compel a transferee of a share of a of an undivided family in a dwelling house when such ..... of law which has been referred to this full bench viz. whether in order to avail of the right conferred by section 4 of the partition act of 1893 it is an essential precondition that the claimant must be arraigned as plaintiff and not as a defendant. the problem highlighted is whether the concept ..... share (regardless of whether he is in possession of the property or a part thereof, or otherwise), the right conferred by section 4 of the partition act cannot be availed of by a member of the undivided family. but subject to this rider such a right can be successfully claimed regardless of whether ..... and although the defendant made no claim or the separation of his share, mushtaq ahmad, j. granted the plaintiff the benefit of s. 4 of the partition act m the ground that that section applied irrespective of whether the transferee of a share is the plaintiff or, the defendant. for the reasons we have ..... section.' two high courts, namely, high courts of bombay and allahabad broadly speaking hold the view that the right conferred by section 4 of the partition act to compel a stranger transferee of an interest of a member of a joint family in a dwelling house can be availed of provided and only provided .....Tag this Judgment!
Court : Karnataka
Reported in : 1999(5)KarLJ631
..... rules are made, the procedure prescribed in the code of civil procedure in respect of sales in execution of decrees'.a reading of clause (b) of section 7 of the partition act, 1893 clearly reveals that, where the property is sold under the decree or order of any court other than the high courts of calcutta, madras and bombay,then the procedure as ..... sale under the act. section 7 reads as under:'7. procedure to be followed in case of sales.--save as hereinbefore provided, when any property ..... into shares, as the shares are required to be divided, then the court may order for it being sold and its proceeds may be distributed amongst the claimants.9. the partition act, 1893 deals with such a situation, section 2 of the partition act confers the power to the court to order sale, instead of division of the property in a ..... partition suit if the condition mentioned in section 2 are fulfilled. in this act, there are also provisions that any of the shareholders may also apply to purchase the shares of others, if they so desire.10. section 7 of the partition act, 1893 further provides for the mode of partition and procedure to be followed in case of .....Tag this Judgment!