Partition Act, 1893 [IV of 1893]
Allotment of a Share
in respect bow of non contested defendant
As
defendant no. 17 never contested the suit nor prayer for any share, her
entitlement in the joint suit land could not be decided. Consequently, she did
not get any share declared in the joint property in the preliminary decree. So
the order of the appellate Court for allotment of a share to her and! or other
defendants beyond the terms of preliminary decree is wholly Misconceive and
baseless and arbitrary.
A. Ali Sheikh & Anr Vs. K. Ali Sheikh & Ors.
11 BLT (HCD)-444
Whether in a Suit
for Simple Partition the court is debarred to decide question of title or
genuineness of a document, incidentally
When a
suit is based on joint ownership and enjoyment, a co-sheerer in possession is
always entitled to seek partition simplicitor without seeking any declaration
of his title. In deciding such suit, questions of title and nature of
particular transaction may come up for decision, incidentally and need to be
decided as incidental to adjudication of the shares of the co-owners.
Birendra Nath Mondal
& Ors Vs. Dulal Chandra Mondal & Ors 13BLT (HCD)10
Section-4
(a) “Dwelling house”
co-sharer’s attachment to ancestral house intention of the legislators to make
the provisions of S. 4 of the Partition Act
After
considering the modes of our people, the co-sharer’s attachment to their
ancestral house and their anxiety to preserve the purdah and privacy of the
members and inmates of the undivided dwelling house, the legislators made the
provisions of section 4 of the Partition Act. The expression a dwelling house
belonging to an undivided family is to be liberally construed. We have done so
in Sree Jugal Kishori Sarker Vs. Azizur Rahman & Ors. 40 DLR(AD) 150. A
co-sharer’s prayer to buy up a stranger-purchaser may not be refused on a
technical ground.
Syesta Bibi and
Other’s Vs. Juma Shah and Other’s 1BLT (AD)-34
(b) There is no time
limit for filing an application under section 4 of the Partition Act
The
appellate Court’s finding that “That suit land is no doubt a homestead, but is
not a dwelling house of an undivided family” is utterly Misconceived. In the
suit land an undivided dwelling house is situated. The defendant himself
claimed to be residing in a portion there. The suit property never lost its
character of an undivided homestead because there had admittedly been not
partition by metes and bounds by any previous arrangement. The impartible
character of the suit property remained undisturbed when the suit was filed in
1962. There is no time limit for filing an application under section 4 of the
Partition Act. In the instant case, the plaintiffs claim cannot be called sale.
Syesta Bibi and
Other’s Vs. Juma Shah and Ors. 1BLT (AD)-34
(c) To buy-out a
stranger purchaser-Inordinate delay in filing application under S-4 of
Partition Act from the date of purchase consequences— What involves a kind of
forced sale for the stranger purchaser
If an
application under section 4 of the Partition Act is filed to buy out a stranger
purchaser after an inordinate delay from the date of the purchase, then the
applicant himself may suffer. When an applicant’s prayer is allowed under
section 4 of the Partition Act, it involves a kind of forced sale for the
stranger purchaser. And hence, the court would, in equity, determine the
valuation of the transferred share on the date of the filing of the application
for permission to purchase the share of the stranger purchaser.
Syesta Bibi and
Others Vs. Juma Shah and Others. 1BLT (AD)-34
Section-4
Partition
suit by transferee of share in dwelling house —the plaintiff petitioner is in
possession of .5612 acres of land in ejmali by registered kabala, filed the
present partition suit —opposite party No. 1 as defendant No.1 contested the
suit, contending inter alia that he has been possessing the suit land as
cosharer and suit land being dwelling house that the defendant is ready to
purchase the share of the plaintiff-petitioner. The learned trial court decreed
the suit in part with direction that the ‘defendant may purchase .04 decimals
of homestead having the dwelling hut and courtyard on it and the plaintiff will
get .5212 decimals of land out of the jote — the lower appellate court
reversing the judgment and decree of the trial court in the manner and on the
finding that the plaintiff is a stranger in the suit land, if plaintiff is allotted
shaham in the ejmali homestead and ejmali tank the members of the Hindu family
cannot conveniently use the homestead and the tank which is a cartilage of
their dwelling house, trial court ought to have allowed pre-emption in favour
of the contesting defendant No. 1 in full—Held: It appears that the appellate
court while reversing arrived at its own independent findings on the issues
involved in the case rule is therefore discharged.
Hafizuddin Bepari
Vs. Nepal Chandra Das & Ors. 4BLT (HCD)-109
Section-4
Delivery of
possession by the Advocate Commissioner
The
Advocate Commissioner while delivering possession to the parties in a partition
suit shall abide by the final decree and not by the preliminary decree.
Md. Shahjalal &
Ors Vs. Sultan Gazi & Ors. 6BLT (AD)-233
Section-4
Applicability—The
Kha schedule property may be a dwelling house but it was not under direct
occupation of the plaintiff and defendant No. 1 and the plaintiff was not
residing in that house when the suit for partition was filed and there is no
evidence that the undivided family occupied Kha schedule property—we hold that
Section 4 of the Partition Act has no manner of application in the present
case.
Bina Roy Chowdhury
Vs. Amullya Roy Chowdhury & Ors. 7BLT (HCD)-80
Exceptions; When all property need not be
included
The
general rule that a partition suit should embrace all the joint properties of
the parties concerned is indeed a rule of convenience. If properties are left
out in a partition suit it brooks further litigation. It is true that this rule
is relaxable. But there are specific situations calling for relaxation. They
are generally (a) where different portions of the property lie in different
jurisdictions, or (b) when some portion of the property is at the time
incapable of partition, or (c) when the property from its nature is impartible,
or (d) when property is held jointly with strangers who cannot be joined as
parties to a general suit for partition, or (e) where cotenants, by mutual
agreement, decide to make partition of a part of the joint property retaining
the rest in common.
Nurul Afsar Vs
Rafiqul Ahmed 7BLT (AD)-335
Section-4
Decrees never put into execution within 12 years.
Decree
in partition suit of I 1 6, appears that the decree in Title Suit No. 167 of
l9I was never put into execution within 12 years and as such the decree holder
plaintiff including plaintiff nos. 4 and 5 (Safunnessa and Jahra Bibi) could
not get into possession in the decreetal land particularly in ‘Cha and Tha’ of
the schedule upon evicting the defendants including the sons of Moinuddin
Kochwan, the defendant no. 21, the substituted heirs of defendant no. 21-Kha
Abdus Sattar, the predecessor-in-interest of defendant nos. 6-9 and Abdul
Halim, the substituted defendant no. 21-Ga, the predecessor-in-interest of
defendant nos. 1-5, the transferors of the defendant nos. 10-17.
Sahani Bibi &
Ors. Vs. Nurul Islam & Ors 12 BLT (AD)-11
Section—4
It is
proved beyond doubt the homestead upon the plot No.2523 and the land of plot
No.2525 are the part and parcel of the ancestral homestead of the plaintiff and
as well as of the defendant No.2 and they’re having been no partition by metes
and bounds and the defendant No.1 being an outsider and being not a member of
the plaintiffs family, the land purchased by him comes within the Mischief of
section 4 of the Partition Act.
Surajit Kumar Das & Ors. Vs. Jahanara
Hossain & Ors 14 BLT (HCD)383
Section-4 read with Specific Relief Act, 1877 Section-42
A
complicated question of title is involved in the suit which cannot be settled
in a simple suit for partition without claiming declaration of title.
Jotimoy Datta &
Ors Vs Mritunjoy Datta @ Palash & Ors 16 BLT (HCD)446
Civil Justice in respect of Partition
In a
partition suit the rights of the parties are finally determined in the
preliminary decree by which specific sahams are allotted. The final decree is
just a follow-up of the preliminary decree whereby actual partition of the
ejmali property is effected through the Court in execution of the preliminary
decree. In effecting partition by metes and bounds the existing possession of
the parties is usually maintained as for practicable and in so far it is not
inconsistent with the decree. Possession or no possession in a particular plot
or plots of an ejmali property cannot therefore, be a ground to refuse a decree
for partition once the plaintiffs title and possession is found in any portion
of the suit property.
Md. Azimuddin
Talukder & Ors. Vs. Md. Abdul Mannan Talukder & Ors. 7BLT (HCD)-43
Principle—Partition Suit
The
cause of action for a partition suit being recurring one the dismissal of a
partition suit for default does not bar again a suit for partition.
Abdul Jabbar Vs
Sultan Mia & Ors. 2BLT (HCD)-139
Patent and Designs Act, 1911 Section-51A(1)(a)
When a
design is registered prima facie it is presumed to be new and original. But
entry in the register is not conclusive thereof and the presumption is
rebuttable one. We have examined the sample, compared them and looked at their
design as a whole and found that the design of the respondent is nothing but an
imitation of the petitioner’s design. So, the design of respondent No.1 is not
a new or original one. The respondent’s design is, therefore, liable to be
called on all the grounds stated in Section 51A(1)(a) of the Act.
Mr. Yar Mohammad Vs.
Mr. Satadal Dhali 9 BLT(HCD)-31
Section-51A
Has no locus
standi-in the instant case the petitioner has utterly failed to show how he is
an interested person in respect of a design relating to cycle and rickshaw
parts inasmuch as he has failed to bring home his claim that he is a dealer of
those parts or that at any point of time he manufactured them. In that view of
the matter it appears that he has failed to fulfill the condition precedent for
filing an application under section 51 of the Act. Moreover, on a perusal of
the materials on record it appears that it has been finally established that
the registered design bearing No.01010, dated 12.8.92 is a new and original
one-application is rejected.
Md. Shahidullah Vs.
Year Mohammad. 9BLT(HCD)-132
Section-51A(1)
It
appears that the design of the respondent No.1 substantially resembles with the
design of the petitioner, which is apparent in the neck eye. Therefore, it
appears that the respondent No.1 by suppressing the fact that a similar design
had already been registered as back as in 1994 obtained the registration of
their design by committing a fraud upon the Controller of Designs. It further
appears that the respondent No.2 also failed to discharge the legal duties cast
upon him and after proper scrutiny failed to discover the fact that the design
applied for already registered. Thus, the registration given by the respondent
No.2 in favour of the respondent No.1 being registration No.01638 dated 14.5.96
in class-I is neither a new nor an original design and it has previously been
published in Bangladesh and also registered by the petitioner in 1994. Thus the
registered design No.01638 dated 14.5.96 is class-I is liable to be cancelled.
Golam Rabbani
Chowdhury Vs. Md. Izzat Ali Khan & Anr. 9 BLT(HCD)-170.
