Court : Kolkata
Reported in : AIR1957Cal65,60CWN871
..... which the disputed property belonged, and, secondly that the application was not maintainable in law. the learned court below overruled both the objections and allowed the application of bibhabati under section 4, partition act.2. mr. gupta on behalf of the appellant does not raise before us any of the two points taken before the trial court, but raises a new point ..... partition. there was a preliminary decree on 17-6-1952. thereafter she made an application under section 4, partition act. the application was opposed by ..... an appeal by defendant 1 ganga dutt murarka who had purchased 5/6th share of the disputed property from one of the co-sharers from an order under section 4, partition act. after the purchase of 5/6th share of the disputed property by defendant 1, bibhabati who acquired 1/6th share of the disputed property under the will of her mother instituted a suit for ..... 5 in division i of dihi panchahnogram khas mahal collectorate in the district of 24 pargarias within the limits of corporation of calcutta.'the point raised en behalf of the appellant is, as already stated, that the whole of this disputed property is not a dwelling house within the meaning of section 4, partition act so that no order could be passed under that section .....Tag this Judgment!
Court : Supreme Court of India
Reported in : AIR1973SC643; (1972)2SCC721; 1SCR904; 1973(5)LC245(SC)
..... been directly considered is that of viswanatha sastri j., in hasan badsha v. sultan raziah begum. : air1949mad772 . there both 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 ..... view expressed was that the court had a discretionary jurisdiction if any interested party requested for sale to order sale notwithstanding the dissent or the disability of any other party, if it 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 .....Tag this Judgment!
Court : Chennai
Reported in : (1970)1MLJ367
..... to the plaintiff to file an application only under section 2 of the partition act. if that were the intention, the joint endorsement would have been more specific. in the facts and circumstances of this case, it is difficult to believe that the plaintiff would have put himself under a disability by undertaking to file an application under section 2, for, by filing such an application ..... the parties are agreeable to a remand, and the principles of the indian partition act are applied in respect of the property.2. on the basis of this endorsement the matter was remanded again to the trial court for disposal as per the joint endorsement.3. thereafter in i.a. no. 166 of 1949 the plaintiff applied under section 6 of the partition act to ..... joint endorsement merely directed the parties to follow the principles of the indian partition act and not to apply under a particular provision of the said act. according to the learned counsel, there was a difference between saying that the parties agreed to apply the partition act and their saying that they agreed to apply principles of the partition act and what the parties attempted to do now ..... the parties, especially the plaintiff would have contemplated such a situation.6. it seems to be by now well settled that the court has got inherent jurisdiction to direct a sale of the properties among the co-sharers apart from the provisions of the partition act, though there was some divergence of judicial opinion in some earlier cases. in basanta kumar v. .....Tag this Judgment!
Court : Kolkata
Reported in : AIR1985Cal406
pyne, j.1. this appeal is directed against the judgment and order dated may 18, 1981 passed by s. c. deb, j. dismissing the appellants' application under section 4 of the partition act, 1893 for purchase of the undivided 5/6th share from the respondent who purchased the same in the dwelling house of the appellants from other co-sharers. to understand the points in issue brief ..... court in view of such promise estoppel under section 115 of the evidence act arose against the said parties. this case also confirms the legal position that a promissory estoppel may be available to the immediate parties to a contract, supported by consideration.53. on behalf of the respondent it was submitted that by their conduct in making representation set out hereinbefore, as also by their ..... and disturbances which would arise from the introduction of a stranger into the land. the correct legal position is that the statutory law of pre-emption imposes a limitation or disability upon the ownership of a property to the extent that it restricts the owner's right of sale and compels him to sell the property to the person entitled to .....Tag this Judgment!
Court : Delhi
..... of the partition act and its disposition under section 3 thereof. can consent of parties have any role to play in the matter? in this regard, the pronouncement reported at (2009) 9 scc 689, shub karan bubna @ shub karan prasad bubna v. sita saran bubna is topical. in this case, in the year 1960 the first respondent and his mother filed a suit for partition against the ..... purchaser. rule 89 of order 21 cpc also applies to a sale in execution of a decree for payment of money and an order of sale of property under the partition act, 1893 is a deemed decree under the code and, therefore, an application for setting aside sale in execution of such decree is maintainable. it also applies to a decree passed in terms of ..... and final settlement, it is not open to either of the parties to make any claim/demand against other parties. the transaction in this case stood concluded between the ..... of the supreme court reported at (2011) 10 scc 420, cauvery coffee traders, mangalore v. hornor resources (international) company ltd. in this case, the court held that where a final settlement upon re-negotiation is reached amicably between the parties by making price adjustments without mis-representation, fraud or coercion on the part of the respondents and money is accepted towards full .....Tag this Judgment!
Court : Karnataka
Reported in : ILR2008KAR13; 2008(3)KarLJ129; 2007(4)KCCR2566; 2007(6)AIRKarR228; AIR2008NOC69; 2008(2)ICC482(DB)
..... 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 2 and 3 of the partition act, then the court has the discretionary power to adopt equitable method of ..... 2 of the partition act ..... 5, all other 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 section .....Tag this Judgment!
Court : Mumbai
Reported in : AIR1979Bom41; (1980)82BOMLR204; 1979MhLJ624
..... 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 application was resisted by the plaintiff-decree-holder by contending that the application was not maintainable ..... purchaser, the learned judge, by his judgment 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 that the learned ..... . 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 cannot apply ..... 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-liar v. ratna mudaliar, air 1925 mad 1234, where it was laid down by kumara-swami sastri and krishnan, jj .....Tag this Judgment!
Court : Delhi
Reported in : 20(1981)DLT9; ILR1980Delhi409
..... the course of hearing it was brought to notice that the parties to the decree had in the meantime come to certain terms. accordingly, it was observed that that development also be taken into consideration.(5) the matter came up before m. s. joshi, j. who found that the sale being under the partition act, 1893 it ought to have been subject to reserve bidding and ..... . the matter requires examination in some detail.(10) before t. p. s.chawla, j. there was a composite application under order 9 rules 7 and 13 read with section 151 of the code of civil procedure and also under sections 2 and 3 of the partition act. the learned single judge found that the application was barred by time and was devoid of merit. inasmuch as ..... can be cases where some material irregularity occurred in publishing or conducting the sale but the bona fides of the parties are not in question. there may also be cases where material irregularity is the result of deliberate fraud, misstatement or mis-representation. .the further proviso added by the punjab high court to rule 90 would not be attracted in the latter ..... type of cases but so far as the instant case goes, it is fully covered by that proviso.(17) in navalkha and sons (supra) sale was under companies (court) rules 1959. the relevant rule .....Tag this Judgment!
Court : Allahabad
Reported in : AIR2007All179
..... first point, the only issue before the lower appellate court was whether the plaintiff had 28/32 share because both the parties admitted that the defendant smt. sakina had 4/32 share. the lower appellate ..... share of the plaintiff.5. civil appeal no. 51 of 1974 was filed by the defendant. the lower, appellate court framed two points for determination namely whether the plaintiff had 28/32 share in the house and whether the defendant was entitled to purchase the share of the plaintiff under section 4 of the partition act, 1893 (hereinafter referred to as the 'partition act').6. as regards the ..... as subsequent events can be taken into consideration in appeal, the heirs of the defendant cannot claim protection of section 4 of the partition act and in support of this contention he has placed reliance upon the judgment of this court in ram sahai v. board of revenue and ors. 1971 acj 1069. the appellant has not led any factual foundation for raising such ..... out such undivided share of the stranger co-owner....15. the aforesaid decision of the supreme court in ghanteshar ghosh (supra) was followed by the supreme court in gautam paul v. debi rani and ors. : (2000)8scc330 . it was also observed:.there is no law which provides that co-sharer must only sell his/her share to another co-sharer. thus .....Tag this Judgment!
Court : Orissa
Reported in : 2000(I)OLR623
..... in appeal by the present appellant, the appellate court held that the impugned order of the trial court being not an order under sections 2 and 3. or 4 of the partition act was not appealable as decree as contemplated under section 8 of the partition act. it was further observed that even assuming that appeal was maintainable, the order passed by the trial court should not be ..... the defendant. the report of the commissioner dividing the property was accepted by order dated 6.7.1981.thereafter, the plaintiffs filed a petition purporting to be one under section 4 of the partition act seeking to purchase the portion of the property which had fallen to the share of the defendant on the ground that the defendant had objected to the commissioner's ..... eventuality, any other shareholder may apply to buy the share or shares of the party or parties seeking for such sale. a careful consideration of the provisions contained in both the sections makes it clear that the persons who have sought the leave of the court under section 2 of the act for selling the entire property cannot have the option of buying out the share ..... all costs of or incident to the application or applications.'5. section 3 has got no independent applicability unless an application under section 2 is made. this is clear from the opening words of section 3 to the effect 'if, in any case in which the court is requested, under the last foregoing section......' the provisions contained in sections 2 and 3 are to be read together and .....Tag this Judgment!