Court : Kolkata
Decided on : Apr-28-1950
Reported in : AIR1950Cal431
..... the tank would then be sold amongst the parties to the suit and the sale proceeds would be divided amongst them according to their respective shares. 5. after the passing of this preliminary decree, the defendants filed a petition under section 3, partition act on 28th september 1945, for leave to ..... third share belonging to the plaintiffs was according to law. the learned district judge came to the conclusion that the defendants' application under section 3, partition act, was not maintainable after the passing of the preliminary decree. the application was accordingly rejected. 7. the defendants have preferred the ..... , since such a person is precluded from offering to buy up the interest of the party owning the smaller ..... section 4 will not be attracted. section 3 contemplates a request by a party with certain qualifications for the sale of the entire property, in suit. it is significant that this section favours the smaller share-holder at the expense of the larger and the fact of a person owning a larger share is a disability under the section ..... share. 9. it has been repeatedly held that the application by a party to attract the provisions contained in section 4 of the act may be .....Tag this Judgment!
Court : Mumbai
Decided on : Oct-17-1950
Reported in : AIR1951Bom309; (1951)53BOMLR177; ILR1951Bom443
..... the shoes of her deceased husband. no such thing is ever contemplated by the act. the right of claiming partition as a male owner which is given to her under section 3, sub-section (3) of the act itself shows that until partition it remains the property belonging to the joint family. the interest which she has ..... the limited interest known as a hindu woman's estate, provided, however, that she should have the same right of claiming partition as a male owner. even though under section 3, sub-section (2), it was enacted that the widow was to have in the property the same interest as the deceased husband had, ..... h. c. itself in chinniah v. siva-gami achi i. l. r. (1945) mad. 402 : a. i. r. 1945 mad. 2l. in that case the widow of a pre-deceased son of a hindu claimed partition under the provisions of section 3 (3), hindu women's rights to property act against her father-in-law & ..... ganga had adopted a son by name dattatarya about five years before the institution of the suit & that, therefore, ganga & her son dattatraya were necessary parties to the suit. he further contended that the pltf's husband had l/6th share in the family properties at the time of his death & that the ..... extent, would be by succession or inheritance if she claimed under the hindu women's bights to property act, & held that a succession certificate was necessary to the extent of her interest in the property. this decision also suffers from the same disability which we have pointed out in the case of the decision .....Tag this Judgment!
Court : Allahabad
Decided on : May-11-1950
Reported in : AIR1950All648; 24ITR395(All)
..... same act ?(2) whether in the circumstances of the case, the effect of the partial partition of the hindu undivided family ..... the partial partition had been accepted by the income-tax officer and the business was treated as having been discontinued for the purpose of assessment under the income-tax act, the same business could legally be treated as having continued unbroken in respect of the same chargeable accounting period for the purpose of section 10a, e. p. t. act, read with sections 4 and 5 of the ..... on 16-3-43 and the formation of two different firms was a transaction within the meaning of section 10a, e.p.t. act?(3) whether on the ..... singh v. commr. excess profits tax, u.p.c.p. & berar, decided on : 18itr988(all) , that the excess profits tax officer is not bound by the findings arrived at by the income-tax officer. the income-tax officer had accepted the plea of partial partition by his order dated 24th july 1946, and the claim for relief under section 25 (3), income-tax act .....Tag this Judgment!
Court : Allahabad
Decided on : May-11-1950
Reported in : 19ITR199(All)
..... quoted above our answer to the question is that the excess profits tax officer was not bound by the decision of the income-tax officer and if under section 10a of the excess profits tax act he came to the conclusion that the main purpose behind the transaction was avoidance of payment of excess profits tax, he could proceed in accordance with the ..... by the income-tax officer and it was argued on that basis that the excess profits tax officer having accepted the partial partition and having accepted that the joint family had discontinued business for purposes of assessment under the income-tax act, the same business could not legally be treated as having been continued during the same period for purposes of payment of ..... the purpose of assessment under the income-tax act, the same business could legally be treated as having continued unbroken in respect of the same chargeable accounting period for the purpose of section 10a of the excess profits tax act read with sections 4 and 6 of the same act ?ii. whether in the circumstances of the case, the effect of the partial partition of the hindu ..... singh v. commissioner of excess profits tax, u.p., decided on april 25, 1950, that the excess profits tax officer is not bound by the findings arrived at by the income-tax officer. the income-tax officer had accepted the plea of partial partition by his order dated july 24, 1946, and the claim for relief under section 25(3) of the income-tax act .....Tag this Judgment!
Court : Kolkata
Decided on : Aug-11-1950
Reported in : AIR1951Cal412,55CWN289
..... ejected simply on the ground that is was not possible for such a transferee to have obtained joint possession through ct.13. section 44, t. p. act & section 4, partition act, 1893, are complementary provisions. section 4, partition act, gives under certain conditions the co-sharer member of a joint-family the option of buying out the interest of a transferee of an ..... strength of his purchase of the interest of narayani. the pltf. has impleaded only the transferee jogendra nath. the other co-sharers have not been joined as parties.4. the defence inter alia raised various issues. the deft. claimed that he was an agnatic relation of the pltf's. family, the property in question ..... the pltf. resp. for permanently restraining the deft. from taking joint possession of the homestead.2. the property originally belonged to the members of a family & the relationship amongst the parties 'will appear from the following genealogical table: nilmoni | _________________________________________________________________ | | | | dinanath troilokya baikuntha=giribala rameswar | | siddhesar=narayani ________________ | | | daughter adhar pashupati | pltf. _______________ | | jaladhar sasadhar3 ..... to his remedy by a separate suit for partition, girijakanta v. mohimchandra, 20 c. w. n. 675: (a. i. r. (3) 1916 cal. 170). if such a suit for partition is brought by a stranger transferee the parties will be entitled to invoke the provisions contained in the partition act iv  of 1893.10. on behalf of the pltf., .....Tag this Judgment!
Court : Chennai
Decided on : Aug-04-1950
Reported in : AIR1951Mad399; (1950)2MLJ587
..... that it is only where a person who is sui juris seeks to set aside a sale to which he was a party on some ground rendering it voidable at his option, that section 41 applies. he argues that the section has no application to a case where a sale is wholly void as being a sale of the minor's property effected ..... . he relied on a decision of the judicial committee and two decisions of this court which will presently be examined. section 39, specific relief act, empowers the court to adjudge a written instrument void and order its cancellation at the instance of a party who may be injured by the instrument, if left outstanding. that the person seeking cancella-tion need not himself ..... as a nullity and treating the vendee as a trespasser for recovery of possession. section 41, specific relief act was, according to him, inapplicable to the present case.3. section 41, specific relief act, is in theseterms :''on adjudging the cancellation of an instrument,the court may require a party to whom such relief is granted to make any compensation to the other which justice ..... been executed by the mother of the minor plaintiffs acting as their guardian, was void under the mahomedan law, and wholly inoperative to convey any title to the property to the vendee; see imambandi v. mutsaddi, 45 cal. 878 : a. i. r. 1918 p. c. 11. the plaintiffs are therefore entitled to a partition of their shares of the lands sold by their mother .....Tag this Judgment!
Court : Chennai
Decided on : Aug-16-1950
Reported in : AIR1951Mad48; (1950)2MLJ472
..... view propounded therein or with the reasoning underlying it. the bench relied on two main reasons, the first being that, section 128,contract act, is not intended to govern all future changes in the liability of the parties, when there is no warrant in that section for any such conclusion. the second ..... surety is co-extensive with that of the principal debtor unless it is otherwise provided for ..... an illustration of the effect of section 128, contract act occurs in shek sulaiman v. shivram bhijai, 12 bom. 71 where it was observed that if an amount recoverable by a plaintiff, from a defendant debtor ..... c. 898), that a barred debt is a good foundation for a written promise to pay, signed by the party liable to be charged therewith. whereas it has been held in suryanarayana v. alwandararao : air1946mad111 by a bench of this court, that if an agriculturist debtor executes a promissory note in favour ..... against the guarantor will not be affected. in other words, they held, like the bench which decided the nellore co-operative urban bank ltd. v. mallikarjunayya : air1948mad252 (patanjali sastri and thyagarajan jj.) that a statutory discharge of the whole or any part of a principal debtor's debt ..... has been the cause for this reference to this full bench, owing to the conflict of views it embodies. the bench which decided subramanian chettiar v. batcha rowther : air1942mad145 consisted of wadsworth and patanjali sastri jj. in that case they held that, where the discharge of a principal debtor .....Tag this Judgment!
Court : Kolkata
Decided on : Jun-29-1950
Reported in : AIR1952Cal253,54CWN912
..... of the tank are not known to us.mr. chakravarty relied upon the case of. 'masitullah v. umrao,' 119 ind gas 523 (all) in support of the proposition that the fact that certain cosharers did not exercise the right of pre-emption under section 4 of the partition act on a previous occasion will not debar them from exercising that right on a subsequent occasion ..... sale of the plaintiffs has given rise to a fresh cause of action and there is nothing in law to preclude the defendants from exercising their statutory right under section 4 of the partition act.'it is no doubt true that in the case before me there is no question of any estoppel but at the same time i hold that the sale to ..... has certainly a title to a portion of the disputed land but his remedy lies in a suit for partition and he can possess his own share by instituting a suit for partition unless, of course, he is pre-empted under section 4 of the partition act.11. mr. jana appearing in support of the respondent has urged, in the first place, that the courts below ..... were not right in holding upon the evidence on the record that there was no partition of the family dwelling house. in particular, he .....Tag this Judgment!
Court : Chennai
Decided on : Apr-11-1950
Reported in : AIR1951Mad213; (1950)2MLJ338
..... a partition wag a transfer, it would be invalid undar the said act. the learn-ed judges at p. 248 defined the words 'transfer' with lucidity and they say;'a 'transfer' in law must be deemed to imply ..... counsel strongly relied upon the judgment of wadsworth and patanjali sastri jj. in schwelo firm v. subbiah : air1944mad381 . in that case the learned judges held that where the partition was fair and in accordance with the proper shares of the parties, it was not liable to be impeached under section 53, although it was entered into with a view to prevent attach-ment of the ..... though the terms of the partition cannot be proved. obviously the restricted principle of part per-formance now given statutory recognition would not permit of such treatment of unregistered partition deeds though partially performed. in raman singh v. dilla singh, 4 luck. 243: a.i. r. 1929 oudh 334, the construction of the word 'transfer' in section 5, oudh rent act, fell to be decided. if ..... evidence.4. the next question raised by the learned advocate raises an interesting point of law, namely, whether tbe doctrine of part performance embodied in section 53a, t. p. act applies to partition arrangements. section 53-a, t. p. act reads :'where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms .....Tag this Judgment!
Court : Chennai
Decided on : Dec-01-1950
Reported in : AIR1951Mad917; (1951)IMLJ596
..... forth relates, the mortgagor although under disability to claim subrogation by virtue of his redemption is under no disability to enter into a covenant for subrogation with such third party, there is no reason why the redeeming co-mortgagor although under disability to claim subrogation should be under a disability to enter into such covenant. there is nothing in the covenants in the partition deed which in express language or ..... take away the right of the appellants to claim a right of subrogation where the requirements of para. 3 to section 92, t. p. act have been fully satisfied.5. on behalf of resp.-pltf. 1 the contention raised was that the mortgagors under ex. d. 3 & ex. d. 11 are different from the personwith whom the appellants had entered into an agreement, securing ..... rights & remedies of the creditor. vide jones on 'mortgages', edn. 6, vol. 1, section 874 & 'gurdeo singh v. chandrika singh', 36 cal 193 .22. the law as embodied in section 92, t. p. act newly enacted in 1929 is in some respects different. the statute as amended requires that a party claiming subrogation must either fall within the one or other of the categories of ..... by the privy council as long ago as 1878 at the earliest that is, four years before the t. p. act (vide 'norendar narain v. dwarkalal mundur', 3 cal 397 is indisputably entitled so to redeem after the act, although to what section of the statute the right should be ascribed has been a matter of some debate before us. that the right is .....Tag this Judgment!