Partition Act (IV OF 1983)
S.2. Persons
owing interests, which are not coordinate in degree can claim partition and get
relief.
Persons in joint possession have a right to
partition although their rights may not be identical; Section 2 of the
Partition Act provides that if it appears to the court that by reason of the
nature of the property or of any other special circumstances a division of the
property cannot conveniently be made and that a sale of the property and
distribution of the proceeds would be more beneficial for all the shareholders,
the court may direct sale of the property and a distribution of the assets.
Financial condition of either of the parties
cannot be a guide for application of the provisions of section 2 of the Act.
Santa Kumari
De Vs. Nanda Kumar De (1951) 3 DLR 266; (1954) 6 DLR 379.
S.4. Relief
may be granted in the execution proceeding.
Relief under section 4 of the Partition Act
may be granted in the execution proceeding in a partition suit. Its provision
shows that the time for granting relief is co-extensive with the partition
proceeding which commences with institution of the Suit and terminates with the
delivery of possession. PLR (Dac.) 844.
There is no reason to limit the operation of
the section up to the stage of the final decree nor is there anything to limit
the word “Court” to the Thai court and the appellate court only and not to
include the executing court. Ibid.
Executing
Court not to amend the final decree—but to give direction.
When the executing court grants relief under
section 4 of the Partition Act, the said court is not to amend the final decree
but to make an order directing conveyance by the party concerned within a
specified time failing which the court will execute the conveyance at the cost
of the other party in whose favor the conveyance is to be executed. Such order
is deemed to be a decree under section 8 of the Partition Act. 1 PLR (Dac) 844.
This section is equally applicable to a suit
brought by a co-sharer and not only when a suit under the section is brought by
a 3rd party purchaser.
Section 4 of the Partition Act will apply not
only when a suit is brought by a stranger — purchaser for partition of a
dwelling house but also in a case instituted by any other co-sharer, because in
a suit for partition all the parties are in the capacity of plaintiffs.
When a partition suit is instituted every co
sharer, will be entitled to have a share in the joint properties and will be in
a position to proceed with the suit.
The criterion to decide whether section 4 of
the Act will apply or not will be whether a stranger-purchaser is going to have
a share in the dwelling house belonging to an undivided family.
Md. Madgu
Bhuiya vs Jabban Haq (1959) 11 DLR 355.
Residence,
whether necessary.
In order to get the benefit of section 4 of
the Partition Act, it is not necessary that a person must live in the family
dwelling—house. It is not the residence but the ownership of the dwelling house
that entitles a person to apply under section 4 of the Act. 7 PLR (Dac) 945.
Plaintiff
entitled to purchase share of undivided family property from a stranger
transferee or ask for partition.
The question is whether a plaintiff, who is
not a transferee in respect of a share of a dwelling house belonging to an
undivided family, but a member of the family and a share—holder of the dwelling
house, can claim to purchase the share of a stranger-transferee?
Held—
The right of pre—emption in relation to a dwelling house as envisaged and
authorized in section 4 of the Partition Act is exercisable by a member of an
undivided family not only when a stranger— transferee figures as a plaintiff,
but also as a defendant in a partition suit, and claims a saham out of the
homestead.
The object of the section 4 of the Partition
Act is to prevent intrusion of strangers in the dwelling— house of an undivided
family. This object would be frustrated if a stranger—purchaser forces himself
into the dwelling house of an undivided family, drives the other co—owners to
file a suit as plaintiffs, and then figuring as a defendant is allowed to
defeat the claim for pre-emption under sec. 4 of the Act on a narrow and
literal interpretation of the section. In a suit for partition, the parties to
the suit arc in the position of the counter—claimants, and it can very well be
predicated of a defendant in a suit for partition that he is suing for
partition.
The language of section 4 does not militate
against the view that the object of the Legislature being to prevent intrusion
by strangers to the dwelling—house of an undivided family, the terms of section
4 should be liberally construed.
Bhaba Kanta
Joddar Vs. Satish Ch. Mandal, (1960) 12 DLR 649.
A stranger-purchaser of a dwelling-house of
an undivided family is not entitled to get joint possession or other common or
part enjoyment of the house. His only remedy is to file a suit for partition
and for specific possession on partition of his share, subject to the right of
co-sharer under section 4 of the Partition Act.
Md.
Habibulla Patwari Vs. Pranballav Bhakta (1957) 9 DLR 119.
Where plaintiff is a stranger to the joint
Hindu family—he is not entitled to a share on partition in the homestead of the
family.
Radha
Chandra Sardar vs Harihar Mondal (1961) 13 DLR 347.
The applicability of the section depends on
certain factors. The prerequisites to the applicability of section 4 are:-
(1) The
property must be a dwelling house.
(2) It must
belong to an undivided family.
(3) There
must be transfer of a share of the dwelling house.
(4) The
transferee must be a person who is not a member of the undivided family.
(5) There
must be a suit for partition.
(6) One or
more members of the undivided family must undertake to purchase the share of
the transferee
The above fundamental requirements of law
must be satisfied before the benefit of section 4 can be claimed by a member of
the undivided family.
Section 4 was enacted to afford protection to
the members of an undivided family against a stranger purchaser. Its simple
object was to prevent intrusion into the dwelling house of an undivided family
by strangers on the basis of purchase of some share in such dwelling house.
Md.
Habibullah Vs. Mvi. Saleh Chowdhury, (1968) 20 DLR 489.
Dwelling
house, buying up share by share-holder—
Elements necessary for attracting section 4
of Partition Act are (i) the house belongs to an undivided family; (ii) the
share thereof has been transferred to one who is not a member of such undivided
family and (iii) the transferee should sue for partition.
Partition
suit—
In a Suit for partition the plaintiff and the
defendant stand on the same footing with regard to a party’s capability to
‘sue’ and to be ‘sued’.
Dwelling house, buying tip the share of the
transferee—For buying up the shares of the transferee the transferee must be
found to have sued at the relevant time when actually the partition suit under
section 4 of the Partition Act is filed.
In a partition Suit a particular plaintiff or
a defendant might have prayed for having their shares partitioned but
unfortunately for some reason or other they might have given up that claim and
in that case it cannot be said while considering a petition under section 4 of
the Partition Act that the petitioner can be allowed to buy up the shares of
those parties who subsequently gave up their claim. The transferee must be
found to have sued at the relevant time when actually the partition Suit under
section 4 of the Partition Acts is filed for buying up the shares of the
transferee.
Kefatulla
Sikdar Vs. Korban Sk. (1974) 26 DLR 96.
Female
member of undivided family upon marriage goes to the husband’s house— No longer
to be treated as a member of the undivided family.
A female member of an undivided family who
marries and goes to live in her husband’s house prima fade gives up her
intention of continuing to reside in her old house and so she is prima facie no
longer a member of the family and as such she is not entitled to the benefit of
section 4 of the Partition Act.
Abdul Gani
Vs. Asifadullah (1982) 34 DLR 245.
“Undivided
family” means undivided qua the dwelling house—When there was no partition of
the dwelling house.
“An undivided family” must be taken to mean,
“Undivided qua the dwelling house in question and to be a family which owns the
house but has not divided it.”
Azizur Rahman
Vs. Jugal Kishori Sarkar (1984) 36 DLR 351.
When claim
u/s. 4 arises
—When a stranger transferee sues for
partition then only the claim under section 4 of the Partition Act can be laid.
Ibid.
—Section 4 will apply also in a case
instituted by a co-sharer. Ibid.
Under section 4 only the area actually
covered by the dwelling house can be claimed by the co sharer and not any area
beyond that. Ibid
S. 4 (I) The
conditions to be fulfilled for application of the section 4(I).
The house concerned should be in actual use
though not necessarily in constant occupation. Grant of a tenancy (not a
permanent and irrevocable lease) will not have the effect of making a house
owned by members of an undivided family cease to be a dwelling—house.
Md. Tozammal
Hossain vs. Purni Agarwalini (1958) 10 DLR 318—8 PLR (Dac.) 778
Where
co-sharer has permanently left the country—whether he can invoke the provisions
of sub-section.
The principle that the creation of a tenancy
by co-sharer owner does not terminate the possibility of his returning to its
occupation and, therefore the provisions of section 4(I) of the Partition Act
are available to him as a co-sharer has no application where the co-sharer
owner has left the country, where the house is situated for good.
Priya Sarkar
Sen vs. Abdul Wahed Sheik (1960) 12 DLR 584.
S. 8. Orders under section 4 arc deemed to be a
decree under section 8. (See under section 4, above). 1 PLR (Dac.) 844.