Court : Kolkata
Decided on : Sep-02-1955
Reported in : AIR1957Cal65,60CWN871
..... which the disputed property belonged, and, secondly that the application was not maintainable in law. the learned court below overruled both the objections and allowed the application of bibhabati under section 4, partition act.2. mr. gupta on behalf of the appellant does not raise before us any of the two points taken before the trial court, but raises a new point ..... partition. there was a preliminary decree on 17-6-1952. thereafter she made an application under section 4, partition act. the application was opposed by ..... an appeal by defendant 1 ganga dutt murarka who had purchased 5/6th share of the disputed property from one of the co-sharers from an order under section 4, partition act. after the purchase of 5/6th share of the disputed property by defendant 1, bibhabati who acquired 1/6th share of the disputed property under the will of her mother instituted a suit for ..... 5 in division i of dihi panchahnogram khas mahal collectorate in the district of 24 pargarias within the limits of corporation of calcutta.'the point raised en behalf of the appellant is, as already stated, that the whole of this disputed property is not a dwelling house within the meaning of section 4, partition act so that no order could be passed under that section .....Tag this Judgment!
Court : Orissa
Decided on : Oct-03-1955
Reported in : AIR1956Ori56; 22(1956)CLT139
..... these two contentions must prevail.6. it was decided in the well-known full bench case of the allahabad high court in -- 'sultan begum v. debi prasad', 30 all 324 (fb) (a), that the object underlying section 4, partition act is to prevent a transferee of a member of a family who is an outsider, from forcing his way into a dwelling house in which ..... which requires strious consideration is whether defendant 1 the appellant, who is willing to purchase the 4 annas interest of kadambini from the plaintiffs is entitled to any relief under section 4, partition act.the courts below have negatived the appellant's claim on the ground that on samuel's death the plaintiffs who became cosharers in the suit house were still members of ..... that have been brought to our notice, and we are of opinion, if i may say so with respect, that that decision correctly brings out the principle underlying the legislative policy in enacting section 4, partition act. what is contemplated is that the dwelling house should have been left undivided and must have belonged to the jurnily.a transfer of the interest of any ..... , the entire interest of samuel in the suit dwelling house to plaintiffs 1 and 2 -- which obviously she was not entitled to do.the parties being christians are governed by the provisions of section 106, indian succession act and kadambini would be entitled only to a half share in the interest of samuel, the other half going to samuel's brother and his .....Tag this Judgment!
Court : Allahabad
Decided on : Mar-30-1955
Reported in : AIR1956All687
..... thereafter the respondents, who are the remaining heirs, instituted the suit out of which this appeal arises for partition of the entire property. they claimed that they were entitled under section 4 of the partition act, 1893, to include in the property the subject of the suit the share of the first appellant upon payment to ..... is 'the property in suit falls within the definition of dwelling houses for the purpose of section 4, partition act. it was a chopal and in the sale deed in favour of defendant no. 1 ex. 5 it has been described as haveli. it belonged to a family undivided qua the dwelling house ..... as plaintiff and then figuring as a defendant is allowed to defeat the claim for pre-emption under section 4 of the act on a narrow and literal, interpretation of the section. in a suit for partition, the parties to the suit are in the position of counter claimants and it can very well be 'predicated ..... the additional civil judge, bijnor, dismissing an appeal from the judgment and decree of the munsif of bijnor in a suit for partition.2. the dispute between the parties relates to certain property which belonged to one tafazzul hussain. after tafazzul husain's death one of his heirs sold his undivided ..... 46 bom 341: (air 1922 bom 121) (c) and of the madras high court in butchi ramayya v. g. venkata subbarao : air1950mad214 .8. it is however a well known principle that a party to a partition suit, whether plaintiff or defendant, is for many purposes at the same time a plaintiff as well as .....Tag this Judgment!
Court : Supreme Court of India
Decided on : Oct-28-1955
Reported in : AIR1956SC77; 2SCR1117
..... of the said agriculture lands in punjab khore presumably by way of attornment of tenants who were in actual cultivating possession of the lands. under section 5-a of the east punjab evacuees' (administration of property) act, 1947 (east punjab act xiv of 1947), as amended in 1948 and applied to the state of delhi, such a transaction required confirmation by the custodian. in compliance ..... evacuee or such person, on or after the fifteenth day of august, 1947, shall be effective so as to confer any rights or remedies on the parties to such transfer or on any person claiming under them unless it is confirmed by the custodian. (2) an application for confirming such transfer may be made by any person claiming thereunder or by any ..... the order is not pronounced in the presence of the applicant, shall forthwith give notice in writing to the applicant of any order passed by him under sub-sections (3), (4) or (5). 5-b. if the original order under section 5-a is passed by an assistant or deputy custodian of evacuee property, any person aggrieved by such order may appeal within sixty days from the ..... became final and conclusive. it is urged that on the filing of the application in 1948, the appellant got a vested right to have it determined under section 5-a with the attribute of finality and conclusiveness under section 5-b attaching to such determination. according to the learned counsel this follows from the 'previous operation' of the repealed law and is in consonance with the .....Tag this Judgment!
Court : Andhra Pradesh
Decided on : Feb-25-1955
Reported in : AIR1955AP200
..... adiseshayya. defendant 2 is alleged to have been taken in adoption by adiseshayya subsequent to the plaintiff's adoption. there was a partition between the plaintiff and adiseshayya, where under the 'a' schedule properties were allotted to the share of the plaintiff and b-1 schedule properties to that of adiseshayya.adiseshayya ..... prayed for separate possession of their shares after a partition by metes and bounds.the learned judge held that the plaint was leviable to court-fee under s, 7(v) of the court-fees act and that clauses (iv) (b) (c) and (iv-a) of the act had no application to the case. at p. ..... b schedule properties were all purchased in the name of the defendant 1. it is alleged in the plaint that adiseshayya brought about the alleged partition fraudulently and that the defendants were setting up rights in the a and b-1 schedule properties.froth the allegations in the plaint, it is ..... partition one of the defendants pleaded that the plaintiff has purchased some properties in the names of strangers fraudulently and collusively and benami with a view to defeat the rights of the several members to the family properties and that those items should be brought into the hotchpot and the benamidars also were added as parties ..... . it was contended that the defendant had to pay court-fee in respect of his share in such items.(7) the learned judges held that in a suit for declaration, as no question of set-off or counter claim arises, and there is no provision in the court-fees act .....Tag this Judgment!
Court : Orissa
Decided on : Mar-15-1955
Reported in : AIR1955Ori143; 21(1955)CLT371
..... the appeal, set aside the judgment and decree of the two lower courts and declare that the defendants are entitled to the benefits of section 4, partition act. the trial court may now take steps to ascertain the value of upendra's share of the disputed plots and give the defendants a reasonable ..... main contention raised by the defendants was that as they were co-sharers of upendra and as the disputed plots formed part of their homestead, section 4 of the partition act should be applied. and they should be given the option of purchasing, the plaintiffs' share at the current market value. the two lower ..... part of the dwelling house of the defendants are well-settled. in -- 'khirode chunder ghosal v. saroda prosad mitra', 12 cal lj 525 (a) it was pointed out that the expression 'house' in section 4 of the partition act 'embraces not merely the structure or building but includes also adjacent buildings, curtilage, garden court ..... ) when he made local inspection on 12-2-1949. but there is no reason to disbelieve the defendant's statement that the hut was then under repair.there is absolutely 'no evidence on the side of the plaintiffs to show that the defendants' family abandoned all idea of using the hut ..... narasimham, j.1. this is an appeal against the concurrent decisions of the two lower courts decreeing the respondent-plaintiffs' suit for partition.2. the properties to be partitioned are two plots bearing nos. 1247 (having an area of six cents) and 1390/1827 (having an area of two cents) .....Tag this Judgment!
Court : Allahabad
Decided on : Nov-09-1955
Reported in : AIR1956All161
..... contention has no force. section 14 of the act is the section which lays down what orders are appealable, and sub-section (1) of this section says that any person aggrieved by an order of the competent officer made under section 8 or section 10 may file an appeal. this order of the competent officer was under section 10, because it directed the partition of the property under clause (a), sub-clause ..... ' objections according to law.3. the order passed by the competent officer is not verv satisfactory and he has decided issue no. 3 simply by saying that none of the parties was willing to purchase the share of the other. this is not quite accurate. the petitioners were willing to purchase the share of the evacuee on payment of the price ..... can be effected. but the very power to select one or the other of the modes has been made subject to any rules that may be made in this behalf.5. the relevant rule on the point is rule 11b, which is headed as 'mode of: separation of interests of evacuees'. this rule says that a competent officer, having regard to ..... and the appellate officer decided the appeal by his judgment dated 11-5-1955. the main argument addressed on behalf of the petitioners before him was that the petitioners were willing to purchase the evacuee's share in the land and the competent officer was not justified in ordering a partition thereof. his attention was drawn to the proviso to s, 10 .....Tag this Judgment!
Court : Chennai
Decided on : Sep-12-1955
Reported in : (1956)1MLJ243
..... a family arrangement and the deed was void not only qua the minor, but with regard to all the parties including those who were sui juris.5. the result is that the partition deed is void and no rights could flow from such a partition deed which are capable of being enforced in courts. it is contended that in so far as the 4th ..... 1923. after the death of her husband, the 4th defendant rokia bi executed a power of attorney to the 1st defendant, who is her eldest son, on 21st february, 1933 under exhibit a-5 and on 16th october, 1933 there was a partition of the properties belonging to allauddin. the 1st defendant represented the plaintiff and defendants 2 to 4 in the said ..... partition deed even in respect of persons who are majors. transactions entered into on behalf of a muhammadan minor except by the legal guardian appointed by court have been uniformly held to be void and the rigour of muhammadan law in this respect cannot even uphold transactions which have been acted upon as in the present case, although the parties who claim benefits under ..... , would necessarily affect the immovable property of the infant plaintiffs.4. the latest pronouncement of the supreme court in mohammed amin and ors. v. vakil ahmed and ors. : 1scr1133 , regarding an alienation by a de facto guardian of a muhammadan minor may be referred to. in that case where disputes arose relating to .....Tag this Judgment!
Court : Chennai
Decided on : Oct-14-1955
Reported in : (1956)2MLJ168
..... to radhakrishnayya v. sarasamma : air1951mad213 , in which the applicability of section 53-a of the transfer of property act to a partition deed was considered by a bench of this court. it was held in that case that for purposes of section 53-a of the transfer of property act, a partition was not a transfer within the meaning of that section, in order to derive benefit under the ..... adjustment of rights and liabilities between the coparceners, and by no means could a partition be treated as a transfer or a conveyance or an assignment in favour of the parties to the same. learned counsel for the respondent relied upon the decision of govindarajachari, j., in govinda nair v. srinivasa pattar : (1948)2mlj463 , which held that there should be a legal assignment ..... as assets. mr. jagadisa ayyar, the learned counsel for the respondent has, however invited our attention to a passage in sankara pattar v. ramanatha ayyar (1954) 2 m.l.j. 155, to which one of us was a party, which is as follows:the second line of attack is centered round the manner of execution and that is that even if there ..... of a mortgage debt in a partition in order to enable the assignee-creditor to enforce the mortgage .....Tag this Judgment!
Court : Punjab and Haryana
Decided on : Mar-24-1955
Reported in : AIR1955P& H179
..... accepted by the parties and the property was sold to give effect to that particular mode of partition will not make the proceedings execution proceedings, they remain proceedings in the suit.the learned counsel for the appellant invited my attention to section 7 of the partition act which reads:'save as hereinbefore provided, when any property is directed to be sold under this act, the following procedure ..... become proceedings in execution. my attention was invited to a decision by johnstone j. in -- 'labhu ram v. ram gopal', air 1929 lah 245 (a), where it was laid down that an order passed on objections preferred against a sale held under section 7 of the partition act was appealabie.it appears from that judgment that the learned judge was of the opinion that the ..... decision on merits but that will be limited to the defendant's prayer that the amount of mesne profits allowed by the trial court should be reduced by rs. 110/-.5. the next point involved in the appeal if, whether the sale was properly held. the learned counsel for the appellant has urged before me that the defendant does not question ..... against a decree and the appellant must pay 'ad valorem on the value of the property involved in appeal and granted time till 12-5-1954.as the deficiency in court-fee was not made good by 12-5-1954 the appeal was rejected on that day. the defendant has come to this court in second appeal.3. the appeal was filed .....Tag this Judgment!