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Judgment Search Results Home > Cases Phrase: partition act 1893 section 5 representation of parties under disability Court: allahabad Page 1 of about 92 results (0.107 seconds)

May 16 2007 (HC)

Smt. Saira Wife of Mohd. Ishaq Vs. Smt. Mariyam Wife of Abdul Sattar

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 .....

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Apr 27 1998 (HC)

Smt. Prabhawati Devi Vs. Iind Additional District Judge, Ghazipur and ...

Court : Allahabad

Reported in : 1998(3)AWC1724

..... final decree. he shall fulfil the required conditions of section 4 of the partition act for getting its benefit before the trial court. if he falls to fulfil the required obligation of law under the provisions of said act, the benefit would not accrue to him. the costs of this appeal shall be borne by the parties. civil appeal no. 11 of 1982 is dismissed with ..... syed zainul nabi filed civil appeal no. 11 of 1982 which were both dismissed by 1st additional district judge on 1.5.1986. thereafter, proceedings for preparation of final decree were commenced wherein rahat ullah moved an application under section 4 of the partition act. this application was allowed by the civil judge by the judgment and order dated 20.11.1987 and it was ..... of final decree that the property in dispute was not a 'dwelling house' so as to attract the provisions of section 4 of the partition act and the bar of res judicata cannot be pleaded against her.5. the judgment and decree dated 1.5.1986 passed in civil appeal no. 4 of 1982 cannot be interpreted to mean that a final adjudication had been ..... court, an argument was raised on this point and it was in these circumstances that the learned additional district judge framed point no.5 about the applicability of section 4 of partition act. while examining a plea based on section 4 of partition act, the basic question to be considered is whether it is a 'dwelling house'. the expression 'dwelling house belonging to an undivided family' has .....

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Feb 07 1957 (HC)

Sakhawat Ali Vs. Ali HusaIn and ors.

Court : Allahabad

Reported in : AIR1957All356

..... benefit of section 4 of the partition act. the decision of a learned single judge of this court in rukmi sewak v. mt. munesari : air1953all332 , has been overruled by a bench of this court in ramzan baksh v. nizamuddin, s. a. no. 850 of 1952: : air1956all687 . in that, case the bench has accepted it as a well known principle that 'a party to a partition suit, whether ..... he then was) said-'in a suit for partition, the parties to the suit are in the position of counter-claimants and it can very well be predicated of a defendant in a suit for partition that he is suing for partition,' and on this ground the learned judge held that the plaintiff was entitled to relief under section 4. a similar view had been taken ..... was founded on the allegation that respondents nos. 1 to 9 were the transferees of a 1/48th share from certain former co-sharers; and the appellant claimed that under section 4 of the partition act he was entitled to possession of the entire house upon payment, to these respondents of the value of their 1/48 share. the suit was decreed by the ..... of the partition act has no application.6. with regard to the first of these submissions the argument of learned counsel is that these respondents are not transferees because in a redemption suit which was filed by the appellant there was an adjustment of claims under which two of the co-sharers acknowledged the ownership by these respondents of a 1/48th share .....

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Oct 28 2004 (HC)

Zamir Ahmad (D.) Through L.R. and ors. Vs. Samson Claudius and ors.

Court : Allahabad

Reported in : 2005(2)AWC1842

..... co-sharers and whether the house was in occupation by the members of an undivided family?'5. at the time of hearing both the learned counsel for the parties though argued only on the following two points :(i) whether the application under section 4 of the indian partition act is maintainable in case the disputed property is not a dwelling house and is a ..... 'khandahar' only?(ii) whether in a suit for partition, which has not been filed by the purchaser of ..... 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 of the partition act applies even where the suit for partition was not filed by the transferee (stranger) himself.4. ..... not been filed by the transferee, the application under section 4 of the indian partition act is not maintainable. the two courts below have allowed the application under section 4 of the indian partition act moved by the plaintiff who is one of the co-sharers after relying on the decision of calcutta high court in satish kumar mitra v. kaliappa : air1981cal278 . the learned counsel for .....

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May 13 1927 (PC)

Mahabir Rai and ors. Vs. Mahadeo and ors.

Court : Allahabad

Reported in : AIR1927All686; 103Ind.Cas.367

..... sharer in immovable property has a right to claim separate possession by partition of his share are provided for by sections 2 and 4, partition act (act 4 of 1893).2. the principle underlying section 2 of the act is that a partition ought not to be made if by partition the intrinsic value of the property sought to be partitioned would be destroyed, and, in such a case, money compensation should ..... case it was held that, if the nature of the property precludes a partition, the proper course open to the court is to direct the sale of the property among co-sharers and the party in possession of the property has not a right to buy the share of the party not in possession. that case is opposed to the view taken by ..... , in the circumstances of the present case, the courts below were bound to follow the procedure enjoined by clause (2) of section 3, partition act.5. it has been found by both the courts below that the house in dispute cannot be conveniently partitioned. the defendants, who owned more than a half share in the house, invited the court to sell the house. thus, the ..... lower appellate court and modifying the decree of the trial court, remand the case to that court, through the lower appellate court, with direction to follow the procedure enjoined by section 3(2), partition act with respect to house a. the plaintiffs will get the costs of this appeal, but the parties will bear their own costs of the courts below. .....

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Mar 06 1941 (PC)

Chaudhri Mohammad Sulaiman Khan Vs. Mt. Amir Jan

Court : Allahabad

Reported in : AIR1941All281

..... decree for money against the defendant and this decree shall be a charge on half of the house.6. in my opinion this is not a correct decree to pass under section 4, partition act. in such cases ordinarily the purchaser should be asked to deposit in court the purchase money by a time fixed by the court, the time to be fixed and ..... plaintiff, might well be regarded as members of an undivided family within the meaning of section i, partition act, and the appeal therefore fails on the main point. the decree passed by the court of appeal in favour of the defendant in this partition suit is to the following effect:5. the decree of the lower court is modified to this extent only, that the ..... a recent case of the bombay high court in bai fatma v. gulamnabi hajibhai ('36) 23 a.i.r. 1936 bom 197 a learned judge of the bombay high court has taken the view that section 4, partition act, does not apply to a case where the person who claims the benefit of section 4, partition act, does not actually reside in the house, the subject-matter ..... the transferee may be valued, and price may be paid to him. in a pull bench case of this court, sultan begam v. debi prasad ('08) 30 all. 324, it has been explained that undivided family in section 4, partition act, does not mean an undivided hindu family but it applies to undivided families of all castes and com-munities and in order to .....

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Mar 04 1929 (PC)

L. Ram Prasad Vs. Mt. Mukandi and anr.

Court : Allahabad

Reported in : AIR1929All443

..... therefore to decide in this case whether the partition act applied and whether the statement of the plaintiff in para. 5 of the plaint amounts to a request to the court that the property be sold under section 2, partition act.3. section 2, partition act (4 of 1893) provides:whenever in a suit for partition it appears to the court that by reason ..... to buy the property at a valuation by the court, and if he does not do so, then the property is to be sold under the provisions of section 6, partition act, when the plaintiff can bid for the property to ensure that a proper price is obtained for the property at the sale. in ..... one third. it has been found concurrently by both the courts that the house is small and is incapable of partition.2. the courts below held that the provisions of section 3, partition act; of 1893, applied and that the defendants were entitled to get the whole house at the valuation arrived at by the court, ..... apply to the case. we are of opinion that in order to see whether any request by a party amounts to a request for sale under section 2 we must consider the exact request made by the party. in the present case the request made by the plaintiff, who is a two-thirds sharer, is ..... to hold the sale of the property among the cosharers, namely the plaintiff and the defendants, and direct that the property should be given to that party who offers to pay the highest price above the valuation made by the court. the appellant is entitled to the costs of this court and that .....

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Nov 23 1948 (PC)

Jageshwar Singh and ors. Vs. Kandhaiya Bux Singh and anr.

Court : Allahabad

Reported in : AIR1949All753

..... pleaded that it was impossible to partition the house and they, therefore, prayed for action under section 2, partition act, and it was further prayed that if it was impossible to proceed under the partition act then the court might take action under its inherent powers and award compensation to the plaintiffs for their share or sell the house to such of the parties as offered the highest bid.3 ..... lah. 32. in this view of the matter the courts below have acted rightly in allowing the respondents to purchase the house.7. with regard to the gonda, as the courts below pointed out, there was no application for any action to be taken in respect of it under the provisions of the partition act ..... had applied for leave to buy as provided in sub-section (1) of section 3 and it is they alone who were entitled to purchase at the price ascertained by the court. no question of ascertaining who the highest bidder was, arose. the view which i have taken receives support from kishen kishore v. sardar sahib charan singh a.i.r. (31) 1944 ..... in accordance with the shares of the parties.5. the defendants being aggrieved by the order of the trial court appealed but their appeal was dismissed by the learned additional civil judge of unnao. they have now come up in second appeal and their learned counsel contends that this case is governed by section 3 (2), partition act, and that as more than one share .....

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Jan 06 1930 (PC)

Brijmohan Lal and anr. Vs. Musammat Mahbuban and anr.

Court : Allahabad

Reported in : 123Ind.Cas.336

..... the house, although she had claimed the whole of the house. the suit out of which this appeal has arisen was for partition and defendant no. 1 applied to the court of first instance that under section 4 of the partition act (iv of 1893) she should be allowed to purchase the whole of the house although her share was only one-sixth. the learned munsif ..... in appeal before the learned district judge, and the two points urged by them were that section 4 of the partition act did not apply inasmuch as the house in question was not a dwelling house and for some years was inhabitable, and that the value of 5-6ths of the house was more than rs. 100.3. the plaintiffs 'appeal was dismissed and ..... below should record findings on the following issues:1. whether the house in suit is a dwelling house within the meaning of section 4 of the partition act?2. if it is, what is the value of the plaintiffs' share?7. parties will be entitled to adduce fresh relevant evidence. findings are to be returned within three months. objections, if any, should be filed ..... a dwelling house belonging to an undivided family, and secondly, that 'the court should make a valuation of the property which the courts below had not done.5. section 4 of the partition act lays down that where a share of a dwelling house belonging to an undivided family has been transferred to a person who is not a member of such family and .....

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May 20 1977 (HC)

Ram Bilas Tewari Vs. Smt. Shiv Rani and ors.

Court : Allahabad

Reported in : AIR1977All437

..... to smt. shiv rani, respondent no. 1.3. for the appellant it was urged that neither the provisions of section 44, transfer of property act, nor those of section 4 of the partition act, 1893 bar the relief for partition. section 44 of the transfer of property act reads as under:--'44. where one of two or more co-owners of immovable property legally competent in that behalf transfers his ..... smt. shiv rani cannot be said to be a sale of a share by a member of an undivided family; henceneither section 44 of the transfer of property act, nor section 4(1) of the partition act shall hinder the plaintiff to seek partition of the said house by metes and bounds. the plaintiff having been found to have half share in the property could, therefore ..... the appellate court below has erred in not granting that relief to him by saying that section 4 of the partition act bars such a relief.5. in the result, the appeal is allowed. the decree passed by the court below is set aside. the suit is decreed for partition of the share of ram bilas tewari in the house in question. it is, however ..... the house in suit. let a preliminary decree for partition be drawn accordingly. the relief for joint possession is not pressed. learned counsel for the plaintiff has stated that the plaintiff's case is that instead of the relief for joint possession, he may be allowed partition of his share in the house. in the circumstances, the parties shall bear their own costs. .....

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