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 .....Tag this Judgment!
Court : Kolkata
Reported in : AIR1997Cal59,(1996)2CALLT12(HC)
..... the court the method of assessing the value is different from the method adopted for determining the valuation for allotting shares to the different parties. in the case of a sale to an outsider under s. 2 of the partition act the valuationis fixed only for the purpose of having a reserve price above which outsiders would be required to bid. in the case ..... of a sale under s. 3 of the partition act the co-sharers applicants become entitled to get the property at the valuation fixed by the court. as was observed in nitish chandra ghose v. promode kumar ghose, : air1953cal18 (see also manick lal dutt v. pulin behari pal, : air1950cal431 that requires. 'a very careful decision by ..... ) 60cal wn 829 at page 833 (subal v. gostha) onthe basis of which this court decided in (1971)75 cal wn 195. in the decision cited suprathis court has held :--'there is another aspect of the question to which also reference may be made. while dealing with the application under s. 4 of the partition act the court is required to value the stranger ..... the report by examining any other witnesses to countermand the effect of the report. it has been held in a decision reported in : air1966ori121 in the case of harihor misra v. narhari setti sitaramiah (para 4) :--'rule 10 of o. 26 does not make the report of the commissioner as concluding the question of valuation. on the contrary, the rule gives .....Tag this Judgment!
Court : Chennai Madurai
..... each plaintiff / respondent 1 and 2 are entitled to 1/5 share. so the only point to be considered is whether the appellant is entitled to get preemptive right without filing an application under sections 2 and 3 of partition act, 1893. it is appropriate to incorporate sections 2 and 3 of partition act, which reads as follows:- section 2. power to court to order sale instead of division in ..... . 8. on the basis of the rival contentions, the following points raised before me, for consideration:- 1. whether the appellant /second defendant is entitled to filed an application under sections 2 and 3 of partition act, 1893, to claim preemptive right in the second item of the suit property? 2. whether the findings given by the trial court in additional issue is sustainable? 3. to ..... filing of written statement is not sufficient and only during the final decree proceedings, if the property is incapable of division, she ought to have filed an application under sections 2 and 3 of partition act, 1893. hence, the findings of the trial court does not warrant any interference and hence, prayed for dismissal of the appeal suit. 7. i have heard the learned ..... . procedure when sharer undertakes to buy. (1) if, in any case in which the court is requested under the last foregoing section to direct a sale, any other shareholder applies for leave to buy at a valuation the share or shares of the party or parties asking for a sale, the court shall order a valuation of the share or shares in such manner .....Tag this Judgment!
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 .....Tag this Judgment!
Court : Orissa
Reported in : AIR1985Ori137; 58(1984)CLT632
..... to the plaint andfor allotment of half share in their favour andthe other half share to defendants 4 and 5.they also prayed for buying out the undivideddwelling house situated on plot nos. 790 and791 under section 4 of the partition act. thegenealogy showing the relationship betweenthe parties as given in the plaint is reproducedhereinbelow : -- kebei jena ______________________|________________________ | | | |denei rudra kurup ..... . the defendants contended that the disputed homestead having been divided long since, the plaintiffs are not entitled to relief under section 4 of the partition act. defendants 6 and 7 filed written statement supporting the plaintiffs. defendant 5 did not contest the suit and was set ex parte.3. though the trial court framed several issues the most ..... 4 vender ananta and all the plaintiffs standing thereon, shall be construed as the undivided dwelling house as contemplated under section 4 of the partition act, shall prevail.'thus, he rejected the defendants' plea that there was a partition of the homestead and the dwelling house standing thereon by metes and bounds. accordingly, the trial court decreed the ..... guj 110 wherein after discussing various authorities on the point including the case of alekha mantri v. jagabandhu mantri, air 1971 orissa 127 (supra) the court summed up its conclusion as follows : --'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 .....Tag this Judgment!
Court : Orissa
Reported in : AIR1991Ori83; 70(1990)CLT851
..... filed any objection to the commissioner's report and not having made the application under section 2 of the partition act at the appropriate time, this court should not interfere with the final decree. in view of the rival submissions of the parties, the only question that falls for determination is, whether in the facts and ..... '.6. it is, no doubt, true as contended by mr. misra for the respondents that the defendant-appellant should have made this application under section 2 of the partition act earlier in the court below, but at the same time, merely because it has not been made in the court below and has been made ..... -70. on an appeal being carried, the s. d.o. reversed the order dated 17-9-70 of the tahsildar vide his order dated 16-5-71. therefore the plaintiff filed the suit claiming l/3rd interest in the suit properties.2. the defendant took the stand in the written statement that ..... been expressed by the patna high court in the case of gopal ram v. ram prasad (air 1952 pat 351). in effecting the partition where a court is confronted with a situation that an item of property is not capable of physical partition and if divided it will loss its intrinsic worth, in such a ..... circumstances of the present case, the defendant can be permitted to purchase ac. 0.007 decimals of land belonging to the plaintiff and the plaintiff can be duly compensated for the same.5. there is no .....Tag this Judgment!
Court : Kolkata
Reported in : AIR1953Cal18,56CWN375
..... sri p.n. lahiri, subordinate judge, first court, 24 parganas, refusing the application of plaintiffs 1 and 2 under section 3, partition act (act no. 4 of 1893).2. the subject-matter of dispute is premises no. 25a, harish mukherjee road, which is the dwelling house of the parties. a preliminary decree was passed on. 25th january 1949, holding that plaintiffs l, 2 and 3, and defendants ..... .4. on 14th january 1950, defendant 2 filed a petition with a prayer that the entire house should be put up to sale under section 2, partition act; and it appears that this petition was supported by some other co-sharers.5. on 25th january 1950, the learned subordinate judge recorded an order which runs as follows :'co-sharers owning five-sevenths share are now ..... we are unable to accept this view. an order under section 2, partition act, is dependent upon a further order made under section 3 of the said act. if the court makes an order under section 3, the order for sale under section 2 will disappear.14. reliance is also placed upon the decision of the madras high court in angamutku mudaliar v. ratna mudaliar, 48 mad. 920, where it has been .....Tag this Judgment!
Court : Chennai
Reported in : AIR1989Mad119; (1988)IMLJ297
..... share of the appellant to respondents 3 to 7 and the court has no jurisdiction to order such a sale excepting under the provisions of the partition act (act iv of 1893). learned counsel proceeded to contend that there was no application by any party under section 2 of the partition act, for a sale of the property and in the absence of such an application, the provisions of the ..... partition act could not be invoked learned counsel placed reliance on the decision of gokulakrishnan j. in muthusami gounder v. kaithamalai gounder (1976) mlw 652 ..... the appellant and equalise the respective shares by direction to pay owelty.18. in support of his contention that an application under section 2 of the partition act is a sine qua non for directing a sale of the share of one of the parties to the other sharers, learned counsel for the appellant cited the decision of the supreme court in badri narain prasad .....Tag this Judgment!
Court : Chennai
Reported in : (1988)1MLJ297
..... share of the appellant to respondents 3 to 7 and the court has no jurisdiction to order such a sale excepting under the provisions of the partition act (act iv of 1893). learned counsel proceeded to contend that there was no application by any party under section 2 of the partition act for a sale of the property and in the absence of such an application, the provisions of the ..... partition act could not be invoked. learned counsel placed reliance on the decision of gokulakrishnan, j. in muthuswami gounder v. a.p. kaithamalai gounder 89 ..... the appellant and equalize the respective shares by direction to pay owelty.18. in support of his contention that an application under section 2 of the partition act is a sine qua non for directing a sale of the share of one of the parties to the other sharers, learned counsel for the appellant cited the decision of the supreme court in badri narain prasad .....Tag this Judgment!
Court : Orissa
Reported in : 1993(I)OLR501
..... makes it obligatory to decide whether the principle o1 lis pendens would be applicable in respept of the rights of the parties under section 4 of the partition act. so far as the share of the plaintiff is concerned, there is no controversy between the parties, the same having been determined at one-sixth. the learned trial judge on the crucial issue in question came to ..... a sale deed in favour of the plaintiff, is on the face of it absurd and hence the present second appeal.5. the only question that arises for consideration in the present second appeal is whether a suit claiming relief under section 4 of the partition act can be said to involve a right to a specific immovable property and, therefore, would be governed by ..... for the aforesaid contention, as the right of pre-emption under section 4 of the partition act is also akin and similar to the rule of pre-emption under punjab pre-emption act which was under consideration before their lordships of the supreme court.a learned single judge of this court in the case of sundari bewa v. ranka behera and ors.. air 1968 orissa 134, had also ..... considered this question and in paragraph-9 of the judgment it has been held:'thus, when the jurisdiction of the court under section 5 of the the partition act on the basis of facts obtaining as on the date of the institution of the suit has been invoked, the same cannot be ousted by the transfer of interest .....Tag this Judgment!