Court : Orissa
Decided on : Apr-03-2000
Reported in : 2000(I)OLR623
..... in appeal by the present appellant, the appellate court held that the impugned order of the trial court being not an order under sections 2 and 3. or 4 of the partition act was not appealable as decree as contemplated under section 8 of the partition act. it was further observed that even assuming that appeal was maintainable, the order passed by the trial court should not be ..... the defendant. the report of the commissioner dividing the property was accepted by order dated 6.7.1981.thereafter, the plaintiffs filed a petition purporting to be one under section 4 of the partition act seeking to purchase the portion of the property which had fallen to the share of the defendant on the ground that the defendant had objected to the commissioner's ..... eventuality, any other shareholder may apply to buy the share or shares of the party or parties seeking for such sale. a careful consideration of the provisions contained in both the sections makes it clear that the persons who have sought the leave of the court under section 2 of the act for selling the entire property cannot have the option of buying out the share ..... all costs of or incident to the application or applications.'5. section 3 has got no independent applicability unless an application under section 2 is made. this is clear from the opening words of section 3 to the effect 'if, in any case in which the court is requested, under the last foregoing section......' the provisions contained in sections 2 and 3 are to be read together and .....Tag this Judgment!
Court : Supreme Court of India
Decided on : May-04-2000
Reported in : (2000)10SCC560
..... and; m.b. shah, jj.1. having heard learned senior counsel for the parties, in our view, from the impugned judgment two points arise for our consideration:(i) whether the application under section 4 of the partition act, 1893 was maintainable at the execution stage?(ii) even if it is maintainable, whether section 4 of its own even applies to the facts of the present case and ..... whether the property in question was a dwelling house belonging to an undivided family as laid down in that section?2. so far as the ..... of the high court is fully governed by a decision of this court in ghantesher ghosh v. madan mohan ghosh1 wherein this court has taken a view that section 4 of the partition act can be pressed into service even at execution stage after the final decree in partition suit is passed. consequently, the view taken by the high court on this point remains well ..... has found to be not supported by relevant evidence. only on this short ground and without expressing any opinion on the merits of the controversy, the appeal is partly allowed.5. the finding of the high court that the suit house is a dwelling house is set aside. however, the impugned final order of the high court remanding the proceedings is .....Tag this Judgment!
Court : Supreme Court of India
Decided on : Oct-17-2000
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 : Mumbai
Decided on : Dec-13-2000
Reported in : AIR2001Bom224; 2001(2)ALLMR592; 2001(2)BomCR479; (2001)1BOMLR670; 2001(2)MhLj536
..... :-the appellant is the brother of one madhuben @ mridulaben amritlal shah who had filed the suit before this court. the suit was filed invoking section 44 of the transfer of property act and section 4 of the partition act, 1893. the case was that the suit property was a dwelling house in the occupation of an undivided family, that the original defendant nos. 1 to ..... residing therein. whether they have such an intention or not is a question of fact, to be decided upon the circumstances prevailing in each case. for example, if the parties have given a permanent lease, it may be said to militate against their having an intention of resuming residence.(10) that some of the members of the family have transferred ..... the difference in phraseology used in section 212 which deals with representation of the estate by an administrator and section 213 which deals with representation of the estate by a legatee or executor. in his submission, the grant of an administration certificate was a condition precedent under section 212 of the indian succession act, 1925. he also drew our attention to section 214 which talks of a ..... bhavanji and others.. the learned single judge of this court following the judgment of the privy council in meyappa chetty v. supramanian chetty,; chandra kishore roy v. prasanna kumari, and the judgment of this court in jamsetji nassarwanji v. hirjibhai naoroji, took the view that the personal property of the testator including all rights of action vests in the executors after .....Tag this Judgment!
Court : Rajasthan
Decided on : Sep-13-2000
Reported in : 2001(4)WLC533; 2007(3)WLN469
..... rules, could not survive in view of the definition of the family as defined under section 30-b of the rajasthan tenancy act. rules were held to be ultravires so far they include hindu undivided family and no notional partition could be considered in the light of the definition given in section 30-b itself. the judgment dated 4.9.1986 given by the learned ..... of the holder of the land the property in question was being held notionally by both the heirs in equal shares at the time when the act came into force as co-owners;(5) the actual partition was done in the year 1970; and(6) whether on the death of the holder of the land before the notified date of the succession opens ..... said person shall be entitled to 30 acres of land as per law as separate one unit. they would be entitled to give their option. the transfers made by the parties contrary to law shall stand ignored as already held by the courts below.19. with the above-said directions, the writ petition is allowed and the impugned orders are quashed ..... alternatively, it is submitted that even if the above contention is not accepted, in that situation and in view of the supreme court judgment reported in : 1scr1120 , additional commissioner v. kala devi, if the surplus land has not been utilised, in that situation, mutation opens on the event of the death of the landlord khatedar and legal heirs of such .....Tag this Judgment!
Court : Delhi
Decided on : Jul-21-2000
Reported in : 2000(55)DRJ544
..... solicitor general of india. accordingly, an application under section 21 of arbitration act, 1940 (1a 2020/78) was filed on 17-5-1978. by an order passed on 23-5-1978, subject matter of suit no. 878/76 namely, the dispute about partition of property no. 22, ratendon road, new delhi and other matters and proceedings pending between the parties were referred to the sole arbitration of ..... our view, it is doubtful that the appellant could avail of the provisions of section 3 of the partition act. section 3 of the partition act comes into play only if an application for sale is made under section 2. the application for sale has to be by the other party. a reading of section 2 shows that such an application has to be made prior to a decree being ..... passed in a suit for partition. in this case, the decree directing sale has been passed ..... in question is concerned simply declared the pre-existing rights of the parties that they had equal shares therein and further provided for the mode and manner in which partition of the same would take place. same in our view would not require registration under any part of section 17 of the registration act. an arbitration award in which a recital is no more than .....Tag this Judgment!
Court : Supreme Court of India
Decided on : Apr-26-2000
Reported in : AIR2000SC2684; 2000(4)ALT1(SC); JT2000(5)SC365; (2000)3MLJ94(SC); RLW2000(2)SC309; 2000(4)SCALE313; (2000)5SCC662
..... of india is as to whether application moved under section 4 of the partition act, 1893 (for short 'the act') by respondent no. 1, who was the decree-holder in the partition suit, was maintainable in law.2. a few facts leading to this appeal are required to be noted at the outset to appreciate this controversy between the parties.3. respondent no. 1 had brought a suit ..... his share in the dwelling house and accordingly can be effectively denied entry in any part of such family dwelling house.9. in para 5 of the report it was observed that the real controversy between the parties is whether the appellant who was a stranger transferee of 1/3rd undivided interest of smt. radha rani in the suit property can be ..... judge for making a valuation of the transferee's share in such manner as he may think fit and proceed to deal with the matter as laid down in section 4 of the act.5. it is this decision of the high court which has been challenged in the present appeal on grant of special leave, as noted earlier.6. learned senior counsel ..... of a decision of this court in the case of ghantesher ghosh v. madan mohan ghosh and ors. : air1997sc471 . in the said case this court has taken the view, speaking through one of us (s.b. majmudar, j.) that before section 4 can apply five conditions have to be satisfied as under:(1) a co-owner having undivided share in the family dwelling .....Tag this Judgment!
Court : Andhra Pradesh
Decided on : Oct-19-2000
Reported in : 2000(6)ALD487; 2000(6)ALT513
..... entitled to seek a partition. he can seek a partition only after the death of te father.13. the learned counsel for theappellants further relied on a recent judgment of the supreme court in rameshwari devi v. state of bihar and others, 2000 (2) ald 42 (sc). the subject matter in this case also arises under section 16 of thehindu succession act, 1956, concerning the dispute ..... that in case it was held that the first defendant had a share in the properties, then the court should determine the shares and partition the properties and give the same in the respective possession of the parties. the main thrust of the plaintiffs, therefore, in the suit was that the defendants were not the legal heirs of tukaram because the defendant ..... 2 married tukaram during the subsistence of the latter's valid marriage with dagu bai, the first plaintiff. under the facts and circumstances, the court held that under section 16(1) of the hindu marriage act, assubstituted by act 68 ..... of the indian succession act, 1925 before the subordinate judge, rayachoty, by the petitioners therein to issue succession certificate in their favour, as legal heirs of late subba rachaiah in respect of the petition schedule securities and for costs of the petition.4. for the sake of convenience, the parties arc referred as they are referred in the op as petitioners and .....Tag this Judgment!
Court : Chennai
Decided on : Mar-07-2000
Reported in : 2000(2)CTC159; (2000)IIMLJ275
..... and another, : (1970)1mlj358 ; . valliyil sreedevi amma v. subhadra devi and others, : air1976ker19 ; (4). muralidhar das v. bansidhar das, : air1986ori119 in sachindra nath's case, 67 c.w.n. 792 a learned judge of the calcutta high court has held that the law of pre-emption refers to sale already effected under section 4 of the partition act or under any other law. before the transfer actually ..... right to acquire the interest proposed to be transferred.(2) the consideration for which any interest in the property of the deceased may be transferred under this section snail, in the absence of any agreement between the parties, be determined by the court on application being made to it in this behalf, and if any person proposing to acquire the interest is not ..... filed by the plaintiff seeking to exercise his right has no substance and the suit has been filed only for the purpose of harassing his co-sharers and also third party purchaser, namely the seventh defendant who has already taken the sale deed. the co-sharers of the plaintiff namely the defendants 1 to 6 have offered to sell their share ..... procedure for the enforcement of the right of pre-emption conferred under section 22(1). s. 22(1) embraces only the situation where the co-heir proposing to transfer his interest is agreeable to transfer the same in favour of the other co-heir exercising his right of pre-emption but the parties cannot reach on agreement as to the consideration for the .....Tag this Judgment!
Court : Chennai
Decided on : Mar-01-2000
Reported in : AIR2000Mad279
..... a separate right and that the rights of the parties have to be adjudicated independently.12. the relevant section that is applicable to the present case is section 37 of the tamil nadu court-fees and suits valuation act, 1955. section 37(1) of the act deals with the payment of court-fee in a suit for partition and separate possession by a plaintiff who has been ..... pleas.4. i have given my anxious consideration to the rival contentions and carefully perused the affidavits of the parties and other records.5. the respondents/plaintiffs filed c.s. no. 214 of 1996 claiming for partition and separate possession of the suit schedule properties bearing door nos. 6 and 15, meeran sahib street. chennai in respect of ..... a clear and specific averment in the plaint that the defendant had been excluded from the joint possession, it cannot be contended that the respondents alone are in possession.19. under those circumstances, it is not necessary to direct the applicants/defendants to file a separate application for seeking the relief of declaration of shares.20. in view of what is ..... their share of the rental income.2. this application is resisted through the counter-affidavit filed by the respondents/ plaintiffs.3. on the basis of the grounds mentioned. mr. t. v. ramanujam, the learned senior counsel appearing for the applicants/defendants and mr. r. thiagarajan, learned counsel appearing for the respondents plaintiffs argued the matter at length and made their respective .....Tag this Judgment!