Court : Kolkata
Reported in : AIR1941Cal311
..... that judgment:this was an appeal from an order of the learned subordinate judge of hughly made under section 4, partition act (iv of 1893) in the course of a suit for partition. under section 8 of the act, such an order must be deemed to be a decree within the meaning of section 2, civil p.c., so that an appeal lies therefrom to this court.8. the learned ..... share in a larger dwelling house of which the plaintiff and defendant 1 were part owners. to appreciate this argument it is necessary to refer to the relationship between the parties. as pointed out above, the property in suit formerly belonged to ram kamal guha. ram kamal's maternal grand-father was ram saran ghose. the plaintiff and the husband of ..... that the plaintiff and defendant 1 were strangers to the family. this view was approved by the learned subordinate judge in appeal.5. it seems to us that both the courts below have failed to appreciate the exact provisions of section 4. the fact that the plaintiff and the husband of defendant 1 were members of the family to which the property ..... to be a decree and be appealable as such. in support of this argument the learned advocate referred to the case in pran krishna v. surath chandra roy ('19) 6 air 1919 cal 1055. that was a case in which an application under section 4, partition act, had been allowed and the appeal was by the transferee and not by the person who had applied .....Tag this Judgment!
Court : Andhra Pradesh
Reported in : AIR1989AP320
..... the court in respect of items 1, 12, 13 of the plaint b.3. as the court allowed a sale between the co-sharers, the case falls under section 3 of the partition act and not under section 2. as each of the co-sharer agreed to purchase a specific item, and all of them so agreed, no objection was taken nor can be raised about ..... civil procedure and of rules 193 to 205 of the civil rules of practice. the point is whether upon a sale among co-sharers of joint property under section 3 of the partition act (hereinafter called the act), failure to deposit the bid amount would automatically require the property to be resold by invoking order 21, rule 84, c.p.c. or whether the court ..... either directing the parties to deposit 25% of the bid amount or granting time to deposit the balance of the bid amount. it is against this order that the 2nd defendant has preferred this revision petition.5. the plea of the respondents counsel sri m.s.k. sastry that there was no order for sale passed under section 3 of the partition act and that the ..... be paid by the purchaser into court before the court closes on the 15th day from the sale of the property.7. but the partition act, 1893 provides in section 2 for sale of joint property by public auction and in section 3 for auction in favour of the co-sharer or co-sharers so applying and as i shall presently show, these two types .....Tag this Judgment!
Court : Supreme Court of India
Reported in : 2000(6)ALT36(SC); 2001(1)BLJR45; 2000(4)CTC503; 2000(7)SCALE145; (2000)8SCC330; Supp3SCR733
..... separate allotment can be claimed by any party irrespective of whether he was plaintiff or defendant. he submitted that if a stranger is a defendant, in a suit for partition, then irrespective of whether he asks for a separate allotment or not, any co-sharer can claim a right for pre-emption under section 4 of the partition act.18. in support of his submission he ..... relied upon the authority of special bench of the calcutta high court in siba prosad bhattacharyya and ors. v. bibhuti bhushan bhattacharjee and anr. reported in : (1988)1callt204(hc) . he points out that this authority ..... has upheld the consistent view of the calcutta high court. in this case it has been held that section ..... paul and bimal chandra paul. as stated above, nilratan paul and bimal chandra paul were two sons of jonoranjan paul. nirode baran paul was the son of kiran chandra paul.5. nilratan paul's share went to his son bejoy ratan paul. on 25th february, 1957 bejoy ratan paul sold his share in the property to nirode baran paul. even though .....Tag this Judgment!
Court : Chennai
Reported in : AIR1989Mad88
..... second appeal.(2) the provisions contained in section 100 c.p.c. are not applicable to applications under section 4 of the partition act since the cause of action for section 4 application is entirely different and is based upon the provisions of the act.(3) application under section 4 of the act will have to be decided before concluding the shares between the parties.' in that case, neither in the ..... finding that the members of the family had abandoned the idea of residing in the house. learned counsel invited my attention to a number of decisions of various courts under section 4 of the partition act and submitted that the principles laid down in these decisions have been ignored by the courts below. per contra, learned counsel for the first respondent submits that there ..... living elsewhere for a long time, did not arise for consideration in that case.10. learned counsel placed considerable reliance on the following observations of walsh j. in subramania sastri v. sheik ghannu : air1935mad628 . 'but it is a cardinal principle of interpretation of statutes that we must first look to the words of the statute itself and if these words are ..... integrity of joint property. the object of the section was to prevent fragmentation or disintegration of a family dwelling house at the instance of a transferee of a share therein. a sea change has taken place in the life style of the people in the country and what prevailed in 1893 when the act was passed is a matter of ancient history. joint .....Tag this Judgment!
Court : Chennai
Reported in : AIR1949Mad772
..... trial on 26th september 1947 both parties 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. on the same day, the defendant who wanted to purchase the property under section 8 of the partition act was given time for filing an ..... 5 and 6 of the plaint, it is distinctly averred that as a division by metes and bounds was not possible, the property might be directed to be sold under the partition act and the proceeds divided. in para. 9 of the plaint the plaintiff prayed for a sale of the house under the partition act between the parties. ..... share of the plaintiff. it may also be that having regard to the fact that the defendant is a minor, the court may not, under section 5 of the partition act, sanction the purchase. it is no doubt true that an advantage has accrued to the defendant by reason of the admissions made in the ..... arisen, alleging that the property was capable of a convenient division by metes and bounds, that the statements to the contrary made in paras. 5 and 6 of the plaint and before the court on 26th september 1947 were all due to a mistake and that the proceeding should be amended ..... . no. 706 of 1946, declining to allow the plaintiff to amend his plaint by withdrawing certain allegations made in para. 5. the suit was laid by plaintiff, a minor, acting through a next friend, for partitiou and possession of a half share in a certain house property, the defendant being entitled to .....Tag this Judgment!
Court : Kolkata
Reported in : AIR1953Cal164,57CWN81
..... the lower court. the two questions raised in the present appeal are whether there had been a previous partition as between the parties, and whether on the facts of the present case the provisions of section 4 of the partition act can be invoked.3. the learned subordinate judge held that the plaintiff had her alleged title to and possession of the disputed properties. the ..... upon the decision of the judicial commissioner of peshawar in the case of -- 'mia jaffar v. mst. bibi gulla', air 1943 pesh 79 for this view. in that case, there was a transfer to the wife of a co-sharer, and the application under section 4 of the partition act was allowed upon the view that the transferee wife was not a co-sharer of ..... a member of the joint family, and the transfer to her was one to an outsider and not a member of the joint family.12. sub-section (1) of section 4 of the partition act (4 of 1893) provides:'where a share of dwelling-house belonging to an undivided family has been transferred to a person who is not a member of such family', and ..... plaintiff had not filed any award in writing, the surveyor appointed by them had prepared a map which made separate allotments in accordance with the respective shares of the parties. all the parties thereafter accepted the allotments so made and took possession according to the demarcation made. the said defendants further stated that 'only the heirs of late hiralal basu did not .....Tag this Judgment!
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. .....Tag this Judgment!
Court : Chennai
Reported in : AIR1972Mad195
..... suit, reported that none of the items was divisible physically. all the parties were agreed that the properties could not be conveniently divided. thereupon, the court passed an order on 28-11-1968, directing the commissioner to sell the three items in public auction, under section 2 of the partition act, 1893 (act 4 of 1893). then the first defendant came up with an application in i. a ..... . no. 1111 of 1969 under sec. 3(1) of the partition act applying for leave to buy the properties at a valuation, to be fixed by the court. on ..... case, notice the objection raised by the respondents to the maintainability of this civil revision petition. it is contended that under section 8 of the partition act, the order for sale under section 2 must be deemed to be a decree and as the decree is appealable under section 81, c. p. code, the petitioner should have presented an appeal against the order instead of a civil revision ..... to setting off or accounting for the purchase-money or any part thereof instead of paying the same as to the court may seem reasonable.' as pointed out by mr. v. varadarajulu naidu, learned counsel for the petitioner, even a decree-holder is normally permitted to bid at a court auction and set-off the decretal amount against the sale proceeds .....Tag this Judgment!
Court : Orissa
Reported in : AIR1956Ori105
..... the defendant 1 being the sister of defendant 4 is a membsr of the family and is not a stranger and hence the plaintiff is not entitled to any relief under section 4, partition act.5. in the present appeal, it is not necessary to go into the contentions of the defendants 6 to 8 but substantially they support the case of prior ..... to defendant 1 by binanda father of defendants 3 and 4, defendant 2 and udia, wife of sananda. the plaintiff being a four annas share-holder can undoubtedly claim relief under section 4, partition act, if the transfer in favour of defendant 1 is to a person who is not a member of such family.in the case of -- 'khirode chandra ..... evidence inclined me to come to the conclusion that there was a prior partition and the plaintiff's suit for partition of the one-fourth share is not maintainable.20. the appeal ..... in the judgment of the learned trial judge really supports the contention of the defendants that there was a prior partition of the homestead.ex. l the sale deed in favour of defendant 1 clearly shows that specific properties were conveyed. the parties were paying choukidari assessment separately. this document coupled with the evidence furnished by other documents as also the oral .....Tag this Judgment!
Court : Kerala
..... property, and especially when he is occupying the building therein as his residence, equity demands the principle of owelty to come into play under section 3 of the partition act, 1893. obviously, the learned judge took the view that section 3 of the partition act was applicable to the facts of the case, for which reliance was placed on the decision of the supreme court in badri narain ..... prasad choudhary v. nil ratan sarkar (air 1978 sc 845). a direction was issued to the trial court to ascertain the market value of the ..... order sale in public auction. 13. in antony's case (supra) the learned judge has observed: a sale among the sharers can be ordered by the court so that third parties will not outbid the sharers and acquire the property. an auction in a closed circle, namely, among the sharers, may appear to the court to be the most ideal solution ..... or shares at the price so ascertained, the applicant or applicants shall be liable to pay all costs of or incident to the application or applications. 6. in manapurath abdulla v. assiya and others (2014 (3) khc 146 = 2014 (3) klt 466) a learned single judge of this court considered a similar question. the extent of the land in that case .....Tag this Judgment!