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 : Mumbai
Reported in : (1960)62BOMLR348
..... was that even assuming that such a partition is 'transfer' within the meaning of section 5 of the transfer of property act, it is not so, so far as section 27(6) of the bombay prevention of fragmentation and consolidation of holdings act, 1947, is concerned. section 27(a) provides that: when a consolidation officer proceeds to prepare a scheme under section 15, during the continuance of the consolidation ..... the meaning of that word used in section 5 of the transfer of property act. the only point that was decided there was that such a transfer would not fall under any of the five kinds of transactions referred to in section 5 of the transfer of property act, and, therefore, would not require registration as contended before them. a partition under hindu law can be made orally and ..... as rankin c.j. in imperial bank of india v. bengal national bank, limited i.l.r. (1930) cal .....Tag this Judgment!
Court : Mumbai
Reported in : AIR1936Bom197; (1936)38BOMLR261
..... share. the defendant contended that she was a member of an undivided family and had a share in the dwelling house in suit, and therefore under section 4 of the partition act of 1893 she was entitled to have the plaintiffs' share sold to her on payment of the price fixed by the court. the trial court held that ..... it was decided that the purchaser could get possession of the house subject to the shares of the present defendant and her brother, since they had not been parties to the sale. the purchaser then sued for the determination of his share, and in that suit it was held that the plaintiffs had a share of ..... occupation would not determine a right to relief under section 4, that does not mean that a person who was not in occupation and who had no intention of occupying would be entitled to the benefit of section 4 merely because he was an owner.5. then there is kshirode chunder ghosal v. saroda prosad mitra (1910) cri.l.j ..... the question is whether she is still a member of an undivided family within the meaning of section 4. the case of sultan begam v. debi prasad is not an authority which expressly deals with this point. 4. then there is vaman v. vasudev i.l.r. (1898) 23 bom. 73. that was a case of a ..... the interpretation of that expression and a number of authorities have been quoted to me.3. in sultan begam v. debi prasad i.l.r. (1908) all. 324, the full bench held that the object of section 4 is to prevent a transferee who is an outsider from forcing his way into a dwelling house in .....Tag this Judgment!
Court : Mumbai
Reported in : AIR1982Bom274; (1982)84BOMLR331; 1982MhLJ545
..... court put the matter beyond controversy. the court has no power, other than the power conferred under the partition act to order sale of property in a partition suit. the suit property cannot, therefore, be ordered to be sold, whether by public auction or by an auction between the parties to the suit.13. mr. phadkar contended that if i would not order sale of ..... dismissed. he placed reliance upon the judgment of a learned single judge of the calcutta high court in chanta kali v. radha rani debt. (1966) 72 cal wn 837. the learned judge expressed the view that in cases not contemplated under the partition act the court had inherent power to direct a sale. he said, however, that the was bound by the decision in ..... the submission he referred to the judgment of a division bench of the andhra pradesh high court in ramaprasada rao v. subbaramaiah air 1958 ap 647, the point before the court was whether it had power dehors the provisions of the partition act od direct the sale of joint family property and divide the proceeds between the members, the court observed, ................ 'but many ..... . 2. in the negative, it cannot be divided by metes and bounds. 3. in the negative. 4. not pressed, inasmuch as it is common ground that the suit is not under the partition act. 5. in the negative. 6. does not arise. 7. to 10: not pressed.20. in the result, the suit is dismissed. the defendants do not press for costs; there shall .....Tag this Judgment!
Court : Mumbai
Reported in : 2008(4)ALLMR783; (2008)110BOMLR2021; 2008(5)MhLj21
..... given to her the execution of the decree of 1979. 5. final decree application nos.3 of 1983 and 4 of 1983 moved for execution by the original plaintiffs before the executing court at kolhapur. the defence was to invoke section 2 and 3 of the partition act-1893 if the suit property could not be partitioned. admittedly, the decree was passed prior to 1977. the ..... the said construction. however, directions were issued to the commissioner to consider the application of partition has to apply the provisions of partition act. 7. after considering submissions of both the parties, readwith provisions of partition act, it is clear that the partition act can be made applicable when the suit was filed for partition of the property. at that time, the suit property was open plot. the construction ..... in regular darkhast no. 420 of 1969 is set aside and it is directed that the execution petition shall be proceeded with as if it is a final decree petition under order 20 rule 18, civil procedure code. the darkhast shall be proceeded with after the decree-holders take the necessary steps.and accordingly regular execution proceeding no. 420/1969 is treated ..... equity should have been applied having regard to the facts and circumstances of the case?4. the factual background in the matter as recorded by the executing court is as under:-the plaintiffs have filed regular civil suit no. 931/1967 against the defendants for declaration that the gift deed of the suit property executed by defendant no. 1 in favour .....Tag this Judgment!
Court : Mumbai
Reported in : 2008(4)ALLMR525; (2008)110BOMLR1906
..... the decree of 1979. 5. final decree application nos.3 of 1983 and 4 of 1983 moved for execution by the original plaintiffs before the executing court at kolhapur. the defence was to invoke section 2 and 3 of the partition act-1893 if the suit property could not be partitioned. admittedly, the decree was ..... issued to the commissioner to consider the application of partition has to apply the provisions of partition act. 7. after considering submissions of both the parties, readwith provisions of partition act, it is clear that the partition act can be made applicable when the suit was filed for partition of the property. at that time, the suit property ..... the darkhast, is set aside and it is directed that the execution petition shall be proceeded with as if it is a final decree petition under order 20 rule 18, of the civil procedure code, in view of the order passed below exh.11.in darkhast.and accordingly regular execution proceeding no ..... costs of the suit and to bear their own. no order as to costs of defendant no. 1 in both the suits. inquiry as regards under order 20, rule 12 (1) (c) of civil procedure code.the defendants preferred civil appeal no. 181/1969 against the decree in regular civil suit ..... the principle of equity should have been applied? 4. the factual background in the matter is as crystalized by the executing court is as under:-the plaintiffs have filed regular civil suit no. 928/1967 against the defendants for declaration that the gift deed of the suit property executed .....Tag this Judgment!
Court : Mumbai
Reported in : (1992)94BOMLR783
..... on 1st april 1957 if the landlord concerned was a widow or a minor or a person under disability as specified in section 32f(1) of the act and other connected provisions thereof. it is also well known that on the eve of the tillers' day several partitions were effected in order to deprive the tenants of their right to become statutory purchasers of the ..... effected on 28th november, 1956 i.e. on the eve of tillers' day.5. section 31(3) of the act makes special provisions in a situation where the landlord is a minor or a widow or a person subject to mental or physical disability. proviso to section 31(3) of the act provided that where a person falling in the specified category is a member of ..... /landlady of the land on the tillers' day is a widow or a minor or a person under disability.7. it is well settled that special law prevails over general law. almost an identical question arose before the supreme court in the case of balkrishna somnath v. sada devram koli : 2scr678 . this leading case was decided by the hon'ble bench of ..... petition is as to whether the impugned partition is in conformity with the provisions of the tenancy act and whether the said partition can be recognised for the purposes of tenancy act. in the case of arwindlal v. khandu, cited supra, the question of construing the proviso to section 31(3) or the proviso to section 32f(1) of the act did not arise. accordingly, with respect, this .....Tag this Judgment!
Court : Mumbai Aurangabad
..... ) all mr 918 [s.c.] [gyan chand and anr. v. sumant rani and ors.]. in this case, the apex court has laid down that if stranger purchaser seeks actual division and possession either in a suit or in execution proceeding, co-sharer can exercise right of pre-emption given under section 4 of partition act, 1893. 18. there cannot be dispute over the proposition made by ..... used in the present matter. however, following circumstances are against the defendant no. 1. (i) there is record to show that partition had taken place amongst the brothers of defendant no. 1 and defendant no. 1 was party to the partition and it had taken place prior to 1989. (ii) all the sisters had relinquished their right in the property in favour of ..... and steps were taken to see that separate portions were entered in the names of parties. defendant no. 1 himself had taken such step by giving application in city survey office and he had requested to enter specific portion in his name as owner under the so called partition. 19. submission was made by the learned counsel for plaintiff that the property cannot ..... contended that the suit is not tenable as five sisters are not joined as defendants and three brothers who have allegedly sold their shares and mother are not joined as parties to the suit. 7. defendant no. 1 contended that he has filed regular civil suit no. 632/1983 for getting the possession of shop premises from defendant no. 1 and .....Tag this Judgment!
Court : Mumbai
Reported in : AIR2001Bom224; 2001(2)ALLMR592; 2001(2)BomCR479; (2001)1BOMLR670; 2001(2)MhLj536
..... :-the appellant is the brother of one madhuben @ mridulaben amritlal shah who had filed the suit before this court. the suit was filed invoking section 44 of the transfer of property act and section 4 of the partition act, 1893. the case was that the suit property was a dwelling house in the occupation of an undivided family, that the original defendant nos. 1 to ..... residing therein. whether they have such an intention or not is a question of fact, to be decided upon the circumstances prevailing in each case. for example, if the parties have given a permanent lease, it may be said to militate against their having an intention of resuming residence.(10) that some of the members of the family have transferred ..... the difference in phraseology used in section 212 which deals with representation of the estate by an administrator and section 213 which deals with representation of the estate by a legatee or executor. in his submission, the grant of an administration certificate was a condition precedent under section 212 of the indian succession act, 1925. he also drew our attention to section 214 which talks of a ..... bhavanji and others.. the learned single judge of this court following the judgment of the privy council in meyappa chetty v. supramanian chetty,; chandra kishore roy v. prasanna kumari, and the judgment of this court in jamsetji nassarwanji v. hirjibhai naoroji, took the view that the personal property of the testator including all rights of action vests in the executors after .....Tag this Judgment!
Court : Mumbai
Reported in : AIR1975Bom257; (1975)77BOMLR558; 1975MhLJ682
..... family property. on the other hand, on behalf of the contesting defendants, the contention was that in a notional partition as provided under section 6 of the act laxmibai will not be entitled to any share on the footing of a partition but under the proviso to section 6 she will be entitled to 1/2 share in the 1/3rd share which will be allotted to ..... gone. however, on the facts, as the mother of the deceased minor was necessary party continuance of the suit was regarded as suffering from infirmity. in karuppa gounder v. palaniammal. : air1963mad245 , the division bench of madras high court considered the effect of the proviso and explanation 1 to section 6. according to the division bench, the intendment of this provision is very clear ..... in the proviso to section 6 the provisions of the proviso were attracted and she inherited the property which would have been allotted to the minor son on a partition immediately before his death. the single judge of the calcutta high court in narayan prasad ruja v. mutuni kohain, : air1969cal69 , took the view that the mother was a necessary party to the suit and ..... bench consisting of patel and bal, jj. and the decision of the division bench is reported in rangubai lalji patil v. laxman lalji patil, : air1966bom169 , patel, j., who delivered the judgment in the earlier case in shiramabai's case was a party to this decision and he declined to follow that decision and took a contrary view on the ground that in .....Tag this Judgment!