Court : Delhi
Decided on : Nov-12-2018
..... , advs. for lrs of d-3. coram: hon'ble mr. justice rajiv sahai endlaw ia no.14870/2018 (of the defendant no.3 under section 4 of the partition act, 1893) 1. vide order dated 10th july, 2015 in this suit, for partition of property no.43-a, rajpur road, civil lines, new delhi-110054, filed by girdhari lal batra against his brothers krishan lal batra ..... by metes and bounds, but the parties were in possession of respective portions of the house and enjoying the same and it had already been held that the property was incapable of partition by metes and bounds, in these circumstances the provision of section 44 of the transfer of property act and section 4 of the partition act have no application; and, (v) that cs(os) 650/2008 ..... without an actual division of the property by metes and bounds; (iv) partition consists in defining shares of the coparceners in the joint property, and a physical division of the property is not necessary; (v) once the shares are defined, there is a severance of the joint status; the parties may then make a physical division of the property or they may decide ..... the shares are defined, whether by agreement between the parties or otherwise, partition is complete; (iv) the parties may thereafter choose to divide the property by metes and bounds, or may continue to live together and enjoy the property in common as before; and, (v) if they live together, the mode of enjoyment alone remains joint, but not the tenure of the property. (iv .....Tag this Judgment!
Court : Delhi
Decided on : Oct-01-2018
..... in the inter se bidding, if required.9. having heard the learned counsel for the parties, the issue which falls for our consideration is in a very narrow compass, that is whether the learned single judge could have denied the appellants the right under section 4 of the partition act, 1893 by passing the following order: - however, in the facts and circumstances of this case, legal ..... (os) 216/2017 page 5 of 17 counsel appearing for the appellants that the learned single judge has not given an opportunity to the appellants to file their response to the application. that apart, the impugned order has been passed without giving an opportunity to the appellants to invoke their right of preemption under section 4 of the partition act, 1893. according to the him, the ..... ghantesher ghosh v. madan mohan ghosh and ors. (1996) 11 scc446in support of his submissions.7. on the other hand, mr. a.k. singla, learned sr. counsel appearing for the m/s. ombir creation pvt. ltd. / respondent no.1 stated that appellants do not have the right to fao (os) 216/2017 page 7 of 17 invoke section 4 the partition act, 1893 inasmuch as ..... this suit in place of plaintiff, the defendant no.1 and defendant no.2, are directed to maintain status quo qua title, construction and possession of the property. 5. the order reveals that a representation was made by the counsel for the respondent nos. 2 to 4 herein (plaintiff, defendant no.1 and defendant no.2) that they have sold the portions .....Tag this Judgment!
Court : Delhi
Decided on : May-11-2018
..... court shall follow the procedure prescribed by sub-section (2) of the last foregoing section.5. representation of parties under disability.- in any suit for partition a request for sale may be made or an undertaking, or application for leave, to buy may be given or made on behalf of any party under disability by any person authorized to act on behalf of such party in such suit, but the court shall not ..... on their respective shares.61. the case may, however, also present a scenario where the parties make a prayer within the four corners of the partition act for sale to be directed under section 2. an order of sale of the property and distribution of the proceeds under section 2 of the partition act, 1893 being an order which the court even otherwise could reach, as discussed above, is a ..... decree (as also specifically so deemed by section8) but for the same reasons as mentioned above, cannot be construed as the last and final order disposing of the suit since the fruits of partition are not forthcoming to the parties directly in .....Tag this Judgment!
Court : Delhi
Decided on : May-24-2018
..... out his right to sue for partition. former is the limit and the latter is extent of what he had acquired by purchase. supreme court virtually gave a sanction to the legal proposition propounded in surendra nath's case (supra). in dorab cawasji v. coomi sorab ..... surendra nath v. ram chandra, (1971) 75 cwn195 this high court went so far as to say that a stranger-purchaser is reduced to the position of a trespasser. his purchase vests in him title only and gives him a right to sue for partition and nothing more. section 44of the transfer of property act negatives his claim to possession before partition. section 4 of partition act spells ..... 25 and 28 that denial of right of injunction under section 44 of the transfer of property act would cause irreparable injury to the other members of the family.? 28. now in the light of above law let me take a look the provisions of memorandum of family settlement/deed of partition viz., ?(1) the parties hereto are co-owners having life interest in of ..... residence was given to her in lieu of and in recognition of her pre-existing right to maintenance. once this is so, it is sub-section (1) of section 14 that applies and not sub-section (2) vide v. tulasamma v. v. sesha reddi (1977 (3) s.c.c. 99). it has recently been held by a bench of this j.and one of us, s .....Tag this Judgment!
Court : Delhi
Decided on : May-10-2018
..... there were any talks between the plaintiff and the defendant for partition of the property; (h) that the defendant, in this suit has filed an application under section 4 of the partition act, 1893 and as such the plaintiff is not entitled to any decree for partition.3. the defendant has filed ia no.17463/2013 under order vii rule 11 of the code of civil procedure, 1908 ..... be permitted to derail the proceedings in this manner.38. as far as the plea of the defendant of the suit being bad for non- joinder of suneet seth as party to this suit is concerned, the claim of suneet seth can be only against the plaintiff and not against the defendant and there is no reason to doubt the stand ..... stranger; (viii) that a stranger who purchases his share of the co-owner gets his share separated and thereafter can always possess and enjoy his separate share; (ix) thus, the disability to take possession is only temporary, till partition and when there is already a stranger in the house, factually cs(os) 149/2011 page 12 of 19 there is ..... land underneath the property prohibits sale/transfer of land, without permission in writing of the lessor i.e. government of india but neither prem kumar cs(os) 149/2011 page 5 of 19 dewan having only 50% undivided share therein nor the plaintiff as agreement purchaser of the rights of prem kumar dewan, could alone, without the defendant, being the owner .....Tag this Judgment!
Court : Supreme Court of India
Decided on : Apr-19-2018
..... commencement of the 1989 amendment. therefore, in view of clause (iv) of the section 29-a of the hindu succession (tamil nadu amendment) act, 1989, appellants could not institute the suit for partition and separate possession at first instance as they were not the coparceners.10) moreover, under section 29-a of the act, legislature has used the word the daughter of a coparcener . here, the ..... , this appeal has been filed before this court by way of special leave.3) we have given our solicitous consideration to the submissions of learned counsel appearing for both the parties and perused the relevant material on record. 3 point(s) for consideration:-4) the short question that arises before this court is whether in the light of present peculiar facts ..... have had if she had been a son, inclusive of the right to claim by survivorship: and shall be subject to the same liabilities and disabilities in respect thereto as the son: (ii) at a partition in such a joint family the coparcener property shall so divided as to allot to a daughter the same share as is allotable to a son ..... termed as ancestral property. in other words, property inherited from mother, grandmother, uncle and even brother is not ancestral property. in ancestral property, the right of property accrues to the 5 coparcener on birth. the concept of ancestral property is in existence since time immemorial. in the state of tamil nadu, in order to give equal position to the females in .....Tag this Judgment!
Court : Delhi
Decided on : Jul-11-2018
..... . the alleged settlement decree relied upon by the applicants is an unregistered document without any stamp duty affixed. even otherwise, per section 44 of the transfer of property act and section 4 of the partition act a transferee may seek a right to partition in a joint undivided property but cannot seek forceful enjoyment of the same. moreso till date the applicants rely upon agreements in ..... of the properties after the final adjudication/settlement of all cs(os) no.238/1989 page 5 of 12 the cases. it is further made clear that the second party shall to execute the aforesaid documents only when the first party has made complete payment of consideration under this mou without default or delay. 2. it is submitted that the compromise/settlement dated 17 ..... to the lis it may take action against such party in appropriate proceedings but not in a partition suit amongst the family members. the applications are therefore dismissed. i may leave here by quoting portion of vidur impex traders private limited vs. tosh apartments private limited 2012 (8) scc384as under: 42. xxxx the appellants and bhagwati developers are total strangers to that ..... 7 scc342the court held: 34. reliance has been placed on a. nawab john v. v.n. subramaniyam (2012) 7 scc738 laying down thus : 18. it is settled legal position that the effect of section 52 is not to render transfers effected during the pendency of a suit by a party to the suit void; but only to render such transfers subservient to the rights .....Tag this Judgment!
Court : Supreme Court of India
Decided on : Mar-15-2018
..... application for setting aside the award is pending under section 34 of the 1996 act. even on the assumption that there is such a vested right, it is taken away, given the clear legislative intent of section 26 of the amendment act. lastly, he argued that on facts, clause 22.2(5) of the agreement between the parties automatically brought in all amendments to the 1996 ..... , cannot begin to run till it is engrossed on requisite stamp paper. there is thus, it has been contended, a legislative bar under section 35 of the indian stamp act 87 for enforceability of partition decree. mr mani contended that enforcement includes the whole process of getting an award as well as execution since execution otherwise means due performance of all formalities, ..... duties in respect of transactions already accomplished. 41 in stark contrast to the first part of section 26 is the second part, where the amendment act is made applicable in relation to arbitral proceedings which commenced on or after the ..... be made. in hitendra vishnu thakur v. state of maharashtra (1994) 4 scc602at 633, this court stated: (iii) every litigant has a vested right in substantive law but no such right exists in procedural law. (iv) a procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new .....Tag this Judgment!
Court : Delhi
Decided on : Oct-31-2018
..... (os) 3171/2014 page 2 of 10 the present application is filed by the defendant under section 4 of 6. the partition act, 1893 seeks a right of pre-emption in the dwelling house. section 4 of the act reads as under: 4. partition suit by transferee of share in dwelling- house. (1) where a share of a dwelling-house belonging to an undivided family has been transferred to ..... which there has of property act,1882 must take into account the aspect that it is not as if the dwelling house is permanently impartible. the stranger who purchases the share of the co-owner can always get his share separated and thereafter possess and enjoy his share. thus the disability to take possession is only temporary till partition and therefore if there ..... a judgment of a division bench of the calcutta high court in gopal chandra mitra and ors. v. kalipada das and ors., f.m.a no.820 of 1986 (decided on 23rd december, 1986).9. the court has heard the submissions of the parties on the question of whether the house is a dwelling house. counsel for the defendant submits that the ..... is already living a stranger in the house factually there is separation of a share the tenant/stranger lives, though in law a partition by metes and bounds between co-owners has to take place. therefore to be a balanced interpretation of section 44 of transfer of property act,1882 keeping .....Tag this Judgment!
Court : Delhi
Decided on : Mar-21-2018
..... , then registry will list the matter in the court for taking appropriate action against the appellants/plaintiffs. costs are imposed in exercise of powers under section 151 cpc because section 35 cpc deals with imposition of costs in favour of a successful party whereas there is no provision of imposition of costs for abuse of process of law and which will therefore be covered ..... /3rd shares in the suit property and mutation accordingly done in their names in the house tax records and such mutation and partition having also been acted upon thus showing the best proof of partition already having taken place by acting upon the partition made.15. there is no merit in the appeal and which is dismissed with costs of rs.20,000/- as the ..... the death of sh. karam chand kapur, if so, its effect?. opd.8. whether the plaintiff is entitled to the decree of partition as claimed in the suit?. opp. rfa no.906/2017 page 5 of 14 9. relief. in order to prove plaintiffs' case, plaintiff sh. onkar nath kapoor 9. examined himself as pw-1 and deposed on the lines of ..... kishore defendant no.3 and sh. nawal kishore defendant no.4 and sh. kunj bihar has also three sons namely nand kumar defendant no.6, sh. ashok kumar defendant no.5 and sh. vijay kumar, defendant no.7. it has been stated that late karam chand acquired custodian property bearing no.10060-62, gali zamir wali, nawab ganj, pul bangash, delhi .....Tag this Judgment!