Court : Kolkata
Decided on : Feb-27-1952
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 : Kolkata
Decided on : Aug-21-1952
Reported in : AIR1952Cal893,57CWN439
..... the banks keeping the watery portion of the tank joint between the parties.33. i have already referred to section 9, partition act, 1893. that section does not confer an independent power of sale. it is merely an enabling section and not an empowering section. it merely entitled the court in a suit for partition to direct a partition of a portion of the property in suit and a sale ..... the case of ramprosad v. mt. mukandi, a. i. r. 1929 all. 443. this decision gave a direction similar to that in debendra nath bhattacharya's case (is cal. w. n. 552: 13 cal. l. j. 322) but no reason whatsoever was given why the court was granting a direction for a sale under section 3(2) of the partition act. in a later decision ..... and 3, partition act, and i shall try to show that there is no cursus curia, which compels us to hold 'that there is an inherent power in the court to direct a sale in lieu of partition under certain circumstances.23. the earliest decision to which our attention was drawn by mr. mukherjee is the case of basunta kumar ghose v. motilal ghose, 15 ..... of this court viz. in the case of mohit krishna v. pranab chandra, 52 cal. l. j. 68, s. k. ghose j. also directed a sale among the co-sharers and in .....Tag this Judgment!
Court : Chennai
Decided on : Jul-18-1952
Reported in : AIR1953Mad320; (1952)2MLJ500
..... plaintiff an one-third share and the other contesting party who is the petitioner before me, a two-third share. subsequent to the decree of this court, the petitioner filed an application in the court below purporting to be under sections 2 and 4 of the partition act, act iv of 1893, praying that the provisions of that act may be applied to him. only the prayers were ..... directed a division of the property, he thought an application invoking the provisions of the partition act was not competent thereafter. in this he was obviously in error.2. there is clear authority of this court in -- 'kadir batcha sahib v. abdul rahman sahib', 24 mad 639 that section 2, partition act, can be applied though a preliminary decree defining the share of a plaintiff and ..... directing partition had been passed. the learned judges pointed out that the act can be applied until the scheme of partition has been finally approved, i.e., until a final decree ..... aside the order of the learned judge dismissing the application as not sustainable. he will restore the petition to his 'file and proceed to deal with it as an application under section 2, partition act. i wish to say nothing at this stage on the merits of the application. there will be no order as to costs.3. the petition will be disposed of .....Tag this Judgment!
Court : Kolkata
Decided on : May-21-1952
Reported in : AIR1953Cal259,56CWN681
..... house returning to its occupation. the tenant may voluntarily give up possession or he may be ejected. what seems to me to be important under section 4(1), partition act is that the house concerned should either be actually in use, though not necessarily in constant occupation, by the owners as a residential house or ..... it to be occupied by a licensee. it has already been held in cases, too numerous to mention, that in order that an application under section 4(1), partition act may lie it is not necessary that the co-sharer owners should be in constant residence at the house. from that position to the position ..... v. maung mye', a.i.r. 1940 rang. 53 : 12 rang 343. it was contended on the supposed authority of that decision that if a house was mostly let out to tenants, it could no longer be said to be a dwelling-house and in respect of such a house, no application wider section 4(1), partition act ..... the undivided family owning it, cease to be a dwelling-house. it may be that if a permanent and irrevocable lease is granted to a third party, a question may arise as to whether the character of the house as a dwelling-house, in so far as the owners are concerned, still survives ..... dhirendra nath bhattacharjee. 5. even on those facts it was contended by mr. nalin chandra pal, who appeared on behalf of the appellant, that the house had ceased to be a 'dwelling-house' within the meaning of section 4, partition act. in his submission, a dwelling-house, as contemplated by the section, was a house .....Tag this Judgment!
Court : Allahabad
Decided on : Nov-12-1952
Reported in : AIR1953All332
..... in the plaint that the plaintiff might be awarded the entire house on the principle embodied in section 4, partition act, 4 of 1893. 2. the original owner of the house was one parag who had two sons, mahabir and sahdeo. the former left a daughter mt. munesari, the plaintiff-opposite party, and the latter two sons, shyam narain and bal makund, defendants 4 and ..... a one-third share without allowing to the plaintiff the benefit of section 4, partition act. there was a finding that these defendants had spent rs. 50 on repairs and that the plaintiff was liable to pay one-third of this amount which was made a charge on her one-third share. 5. an appeal by the plaintiff and a cross objection by defendants ..... entire house. 3. the defence taken by defendants 1 to 3 was that as a mere life estate holder the plaintiff was not entitled to sue for partition, much less to claim the entire house under section 4, partition act, that the plaintiff was not entitled to the latter relief also because she never dwelled in the house, that the house was not capable of ..... obtained a decree. pending an appeal filed by defendants 1 to 3 against that decree these defendants purchased the proprietary title in the house from their mortgagors, defendants 4 and 5, and hence the decree passed by the appellate court in the redemption suit was confined only to the one-third share in which the plaintiff had a life interest. the .....Tag this Judgment!
Court : Mumbai
Decided on : Nov-27-1952
Reported in : AIR1954Bom47; (1953)55BOMLR658; ILR1953Bom955
..... of gift in favour of his daughter. that is how; the question as to the nature of the rights which devolve upon yelawwa under sub-section (2) of section 3 of act no. 18 of 1937 has to be considered in the present rase. the learned 'trial judge took the view that the deed of ..... are unable to accept this argument.it is well settled that in an undivided hindu family the share of each coparcener is not determined until a partition is effected and during jointness it is liable to fluctuation by deaths or births in the family; but that does not mean that the coparcener has ..... in the family properties does not go to the surviving coparceners after his death, but it devolves upon his widow in the manner contemplated by the act.5. it would be noticed that however this particular mode of devolution is described, there is no doubt that it devolves on the death of the ..... whether or not the adopted son can challenge this gift would depend upon whether the gift amounts to a valid alienation or not. in -- 'anant bhikappa v. shankar ramchandra' , their lordships of the privy council have expressly provided that the adopted son would be bound by prior alienations made by a sole surviving ..... described this devolution as by inheritance. bhagwati and dixit jj. 'have, however, taken a contrary view. it has been held by them in -- 'nagappa narayan v. mukambe', : air1951bom309 (a), that it would be 'fallacious' to describe the devolution of such interest on the hindu widow as based on inheritance or succession. on .....Tag this Judgment!
Court : Kolkata
Decided on : Sep-09-1952
Reported in : AIR1953Cal773,57CWN882
..... .e., from the beginning of the 1st quarter 1946-47.19. it is the common case of both the parties that the annual value now being fixed is under sub-section (1) of section 131 of the act and the relevant portion of the sub-section provides that the annual value as may be fixed by the executive officer, of lands and buildings situated in the ..... valued under sub-section (1) of section 131 for general revaluation under section 127 (a) of the act. the objection raised by the assessee was overruled ..... unreported judgment of this court in the matter of 'north british and mercantile insurance co. ltd. v. corporation of calcutta (judgment delivered by s. r. das j. on 13-5-1943) (b). the order in this case was made on the court being moved under section 45, specific relief act. a particular premises belonging to the assessee north british mercantile insurance co. ltd. had been ..... of the first quarter of 1946-47. please note that the land value of the above premises is taken at rs. 3000 per cottah.'5. on receipt of this notice objection was filed under section 139 of the act both about the quantum and the proposed period of currency of the said valuation. the deputy executive officer of the corporation disposed of the objection .....Tag this Judgment!
Court : Mumbai
Decided on : Feb-01-1952
Reported in : AIR1953Bom50; (1952)54BOMLR667; ILR1953Bom339
..... no a contention which was available to it under section 41, t. p. act. in regard to the bank leading evidence on this point, it may be observed that there is nothing in that contention. evidence was led on behalf of both the parties in regard to the partition and what the plaintiff is seeking by urging ..... on 22-3-1924, to the effect that he was the sole heir of the deceased bolakhi and laldas govardhandas.it was on the strength of this representation by chunilal jamnadas that the bank advanced the sum of rs. 60,000 to the firm of chunilal jamnadas & co. and the security for the ..... useful to quote the summary of the position in law which has been given in mulla's registration act, edn. 5, at p. 53, under the heading 'change of status.' it is stated there :'an instrument of partition among members of a joint hindu family dividing the family properties by metes and bounds requires registration. if ..... . 1977 for a consideration of its. 21,101. on 18-12-1920, i.e., magsar sud 5 s. y. 1977 a memo of partition was recorded and signed by the parties. this was, however, a partial partition of the properties belonging to the joint family. certain properties continued to be joint and certain adjustments of accounts ..... we are of the opinion that they do not avail the bank and we would be right in allowing the plaintiff to urge this alternative contention of here.5. in regard to this alternative contention of the plaintiff it was, however, urged by mr. rule g. thakore that what was sought to be proved .....Tag this Judgment!
Court : Chennai
Decided on : Jul-30-1952
Reported in : AIR1953Mad22; (1952)2MLJ575
..... of the properties left by subramania iyer which consists of properties which were allotted to the share of subramania iyer in a partition between subramania iyer, kalyanarama iyer and narayana iyer entered into under ex. b-l dated 4-2-1935. the second defendant is the widow of subramania iyer and the lower court conceded ..... the federal court reported in -- 'umayal achi v. lakshmi achi', 1945 1 mad l j 103 and it is urged that property obtained by a coparcener at a partition would not be 'separate property' as contemplated in section 3(1) of the hindu women's rights to property act of 1937. the contention is that the decision ..... the appellant that, even though by reason of her death no share need be set apart for her and the property may be divided asbetween the surviving parties, in any event as a question of mesne profits arises, it should be necessary to consider whether she would be entitled to any share after the ..... present appeal is confined to the finding as to the widow being entitled to a share in the partition under the hindu women's rights to property act and as to the rejection of the plaintiff's claim to items 29 and 30 of the a schedule to the plaint. ..... allotted to the dividing coparcener and there is nothing to prevent to call it 'separate property' as undoubtedly the dividing coparcener who acquires title to it under the partition would be entitled to deal with it absolutely, since there is no other to question his actions regarding the property. in the present case it may .....Tag this Judgment!
Court : Chennai
Decided on : Apr-24-1952
Reported in : AIR1953Mad425; (1952)2MLJ933
..... governed by the islamic law of inheritance.'it is under this act that the suit for partition has been laid by the plaintiffs and the sections referred to above enable any member of the tarwad or tavazhi to claim partition of the property and that once that partition is effected and any member obtains any property under such partition, succession to that property is governed by the islamic ..... the share of her deceased husband in the tarwad properties which were being partitioned at the instance of five of the members of the tarwad.3. the muslim personal law (shariat) application act did not apply to agricultural lands; and, in order to remove the disability, the madras legislature passed act 18 of 1949 which extended the scope of the muslim personal law (shariat ..... ) application act to agricultural lands as well within the then province of madras. prior to this amending ..... decision in 'moidin kutti v. krishnan', 10 mad 322. in that decision the suit was for a declaration that the debt for which the decree was obtained was not a debt properly due by the plaintiffs' tarwad and it appeared that the plaintiffs and defendants 1 and 2 alone of the members of the tarwad were parties to the suit and that .....Tag this Judgment!