Court : Allahabad
Decided on : May-13-1927
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 : Kolkata
Decided on : Jul-05-1927
Reported in : AIR1928Cal41
..... . they also claimed a decree for possession of their said shares and incidental relief.3. the trial court dismissed the suit upon the ground that it was not maintainable under section 149, estates partition act, 1876. the lower appellate court reversed the decree of the trial court, holding that the suit was maintainable and remitted the case to the trial court to be heard ..... page, j.1. this appeal depends upon the true construction of section 149, estates partition act (8 of 1876), now section 119 of act section 1897. section 149 runs as follows:no order of a revenue officer...(d) made under part iv, part v, part vi, part vii, part viii, (except as provided in the next succeeding section) or part ix..shall be liable to be contested or set aside by ..... the legislature in enacting section 149 was to prohibit any attempt that otherwise might have been made by way of litigation to ..... safe-guarded. a perusal of the act discloses that the revenue officer is to have regard to the claims of the recorded proprietors of the estate. it is only a recorded proprietor who is entitled to claim a partition under the act, and it is the recorded proprietors whose names are to appear in the paper of partition (section 77.)5. in my opinion the object of .....Tag this Judgment!
Court : Kolkata
Decided on : Aug-04-1927
Reported in : AIR1928Cal553
..... to give to the appellant additional rent for additional area under section 52, ben. ten. act.2. plaintiff's case is that there was a partition under the estates partition act in the year 1909, that the deputy collector in accordance with powers given to him under ch. 6 of that act, measured the lands comprised in the tenancy and that it ..... the area which the tenants had been paying previous to 1898, or was the rent assessed or adjusted after dispute during the settlement proceedings between the parties as to the amount payable. in my opinion, the area shown in the record-of-rights was the area with reference to which the rent previously ..... may be of no great value as against the tenant. indeed, in one of the cases which were cited to us, this was pointed out : janki dobey v. kirtarath roy  13 c.w.n. 93. but apart from the mere value! of evidence it seems to me that there is a question of ..... possession of land not included in that area and on which no rent was assessed, it may be sufficient to refer to the case of durga priya v. nazra gain a.i.r. 1921 cal. 345 in these circumstances, it is contended on the part of the appellant that the present case is ..... intermediate assessment or adjustment, the language of the decisions is sometimes apt to mislead. in particular, there is a decision of my own in manindra chandra nandi v. kaulat shaik : air1924cal374 , where no question of intermediate assessment or adjustment was raised and it may be that the language used with reference to those .....Tag this Judgment!
Court : Kolkata
Decided on : Apr-11-1927
Reported in : AIR1928Cal94
..... for the petitioners has argued that the decision of the. subordinate judge is wrong and that he has put a wrong interpretation under section 170, bengal tenancy act, in holding that that section applies not merely when a tenure or holding is attached in execution of a decree for arrears due thereon, but also when a ..... other obligations imposed upon the tenure. as has been pointed out by sir comer petheram, c.j., in joykrishna mukhopadhya v. sarfannessa (1888) 15 cal. 345 that until the fee (as required by section 5) has been paid, the zamindar shall not be bound to register the transfer and further than that, until the ..... personal debts, and subject to the process of the courts of judicature in the same manner as other real property.9. by section 5 of the regulation, the transfer, however, is subject to the payment of fee and security to the landlord, and until the conditions mentioned in the ..... observe that it will be open to the petitioners, if so advised, to raise objection to the attachment in question under section 47, civil p.c.13. in the circumstances of the present, case each party will bear his own costs.14. this judgment will govern rule no. 953 of 1926.15. let the records ..... in which the land comprised in the tenure or holding is situate, the yearly rent payable for the same arid the total amount recoverable under the decree.5. this section also shows that attachment and sale of the entire holding was contemplated in execution of a decree for rent. in does not appear from .....Tag this Judgment!
Court : Allahabad
Decided on : Dec-22-1927
Reported in : AIR1928All172; 114Ind.Cas.177
..... would, however, also hold, in agreement with the lower courts' decision, that it was barred by limitation under section 120 of the lim. act. as regards the question of jurisdiction the intention of the partition court underlying its order of 4th july 1924 has to be observed from the surrounding circumstances. one of these circumstances is the law which should have been in the mind ..... and has been construed), i hold that this appeal should be dismissed on the ground that a necessary party has not been given notice and that the appeal in the absence of that party, cannot be decided.8. the case of shankerbhai manoharbhai patel v. moti lal ram das shah a.i.r. 1925 bom. 122, relied on by my learned brother, is ..... rest of the appeal or suit must continue and cannot be dismissed for want of parties. i am, however, prepared to look into the merits of this contention. if we look into the contention of the parties we shall see that pat ram and defendants 5 to 8 were recorded in the khewat as holding 7 out of 89 shares. the result of ..... clear and it is that the appeal should abate only so far as pat ram is concerned.5. it has, however, been contended that from the nature of the suit it is impossible for this court to adjudicate on the rights of the contending parties without the presence of the legal representatives of pat ram before it. it is my definite opinion .....Tag this Judgment!
Court : Allahabad
Decided on : Jul-26-1927
Reported in : AIR1928All124; 108Ind.Cas.573
..... zamindari and a house are sold together, the claim to preempt the zamindari would be under section 5, read with section 11, and the claim to preempt the house under the mahomedan law would be in accordance with the provisions of section 3. both claims would, therefore, be under the act and section 16 would require that the plaintiff must preempt the whole of the property which he is ..... pressing mills were the exclusive property of the vendor or the joint property of the coparcenary body.13. as this aspect of the question was overlooked, we direct that the parties should have the opportunity of producing any further evidence on this issue, which they may choose to do. the finding should be returned by the 31st october 1927, and the ..... -emptor might very well rely on one such right and not on all. properties may be sold under one sale-deed to some of which a person has right under a prevailing custom, to another portion under some special contract between the parties and to a third under the mahomedan law provided he fulfills the necessary conditions. a pre-emptor might well abandon his right ..... based on any special contract which might be difficult to prove, or on the mahomedan law, in which case also the oral demands may be difficult to prove, and may fall back exclusively on his right under the .....Tag this Judgment!
Court : Chennai
Decided on : Mar-31-1927
Reported in : 105Ind.Cas.414
..... application m.p. no. 3101 of 1916 was, therefore, one between parties to a suit under section 47 of the civil procedure code and as such it is clear that order xxi, rule 103 of the civil procedure code and article 11-a of the limitation act are altogether inapplicable. in this view, the arguments addressed to us and ..... a daughter. mammakutty died leaving as his heirs the 2nd defendant his widow, and the 1st defendant his daughter. the 2nd defendant instituted a suit for partition (o.s. no. 407 of 1903) and obtained a decree. in the meanwhile, mammakutty had mortgaged his interest to one kunheen in may, 1899, ..... is clearly not barred by limitation.5. we, therefore, set aside the decree of the lower appellate court and restore ..... that of the district munsif. the appellant will get his costs in the lower appellate court and in this court each party will bear his own costs. ..... v. ismail moideen rowther 29 ind. cas. 976 : 28 m.l.j. 642 : (1915) m.w.n. 414, to be enforced not by a mere application for execution but by instituting a suit for partition; and since 12 years have not elapsed since his rights came into existence his pre sent suit for partition .....Tag this Judgment!
Court : Chennai
Decided on : Mar-29-1927
Reported in : (1927)53MLJ232
..... 000) and the discount allowed to the lender (rs. 3,250) . the facts i have set forth show that not only was the representation on which the 3rd defendant acted was true, but that as a matter of fact the monies lent by him went in discharge of antecedent debts.9. i shall now turn ..... have been elicited conclusively negative any such case. subsequent to the partition veera-perumal started, as i have said, a business in timber under the name of burrang and co. the dealings were on a large scale and monies were borrowed from third parties. appasami had no concern in this trade, did not make himself ..... his sons to take his property as their ancestral estate. the exact opposite of this was held in yethirajulu naidu v. mukunthu naidu : (1905)15mlj299 where the learned judges observed that in the absence of expressed intention the sons take in severally and not as joint ..... and point out that there has been divergence of opinion; but they do not state their own view and leave the question open.25. in nagalingam v. ramachandra : (1901)11mlj210 it was laid down that if there were no words indicating a contrary intention, the inference should be that the father intended ..... bear on this question, the only text which gives the son exemption from payment of commercial debts is the text of gautama. in my judgment in muthammal v. sivagami ammal (1925) 21 lw 606 1 set forth all the texts that deal with this point. the word 'avyavaharika' occurs in the text .....Tag this Judgment!
Court : Chennai
Decided on : Mar-31-1927
Reported in : AIR1927Mad952
..... whole does not. the case of the present defendant 3 in that petition was, as stated in the order itself, that the counter-petitioner (the present plaintiff)should sue for partition and possession of mahmmadkutty's shareand this we think is the result of that order. paragraph 3 of the order runs thus:it is clear, if it has not been ..... facts of the present case and that the plaintiff is entitled to get mahmmadkhtty's share of the suit properties which he purchased in auction by instituting a suit for partition which is the only remedy that he is entitled to pursue. we must accept this argument. the lower appellate court has misunderstood the nature of the application made by the ..... two children, mahmmadkutty, a son, and biyyakutty, a daughter. mahmmadkutty died leaving as his heirs defendant 2, his widow, and defendant 1, his daughter. defendant 2 instituted a suit for partition (o. s. no. 407 of 1903) and obtained a decree. in the meanwhile mahmmadkutty had mortgaged his interest to one kunheen in may 1899 and the plaintiff had purchased that ..... . defendant 5. ex. k makes that very clear. the application m. p. no. 3101 of 1916, was, therefore, one between parties to a suit under section 47, civil p c., and as such it is clear that order 21, rule 103, civil p. c., and art. 11-a, limitation act are altogether inapplicable. in this view, the arguments addressed to us and the cases quoted .....Tag this Judgment!
Court : Chennai
Decided on : Mar-22-1927
Reported in : AIR1927Mad805; 103Ind.Cas.150
..... support to the view that it was not intended to be operative as between the parties to it. i have now dealt with the general features of this partition. let me proceed to examine more closely the acts and conduct of parties: first, during the lifetime.of ratnavelu, secondly, after his death while nagappa was ..... as cancelled. in supersession of that document, an agreement to divide the property and a trust deed were executed in 1917. when a party obtaining an advantage under a document voluntarily chooses to treat it as inoperative and of no effect, it is wholly unnecessary to come to a court seeking an ..... lien can be supported, on the ground of acquiescence, two ingredients must co-exist. first, it must be shown that the man making the payment was under a mistake with' regard to the title which he had in the property and believed himself to have a larger title than he had; and secondly, ..... fund informed singara on 25th june 1917, that the transfer was accordingly effected.9. now singara negotiated with the fund for a loan, and as under the rules of the fund the borrower must take a certain number of shares, 170 shares were taken and an application was made for a loan ..... idle relief. secondly, the cases cited by mr. radhakrishnayya, petherpermal chetty v. muniandy servai  35 cal. 551 directly applies. the transaction was from the .....Tag this Judgment!