Whether S 4 of Partition Act is applicable if there is partition but property is yet to be divided by metes and bounds?

 In H. Vasudeva Pai v. Kamarunnisa, 2011 (15) SCC 768, the issue of applicability of Section 4 has again been examined at length to hold that even if family is divided in status, in the sense that they were holding the property as tenants in common, but undivided qua the dwelling house in question, and is yet to be divided by metes and bounds, would be covered within the provisions of Section 4 of the Act. Para 4 to 10 of the aforesaid judgment is relevant and is accordingly reproduced hereinbelow:-

"4. The learned District Judge referred to Mayne's Hindu Law and Usage and emphasised the concept of a joint Hindu family and was at pains to point out that the evidence on record did not warrant a finding that the Pai brothers constituted a joint Hindu family. It was only on account of this finding that the learned Judge persuaded himself to hold that section 4 of the partition act did not apply and that the appellant had no preemptive right to purchase the share of the property bought by the respondent.

{Para 17}

 IN THE HIGH COURT OF ALLAHABAD

Matters Under Article 227 No. 7008 of 2016

Decided On: 06.11.2017

Gurudwara Sri Guru Singh Sabha and Ors. Vs. A.D.J., Court No. 16, Muzaffarnagar and Ors.

Hon'ble Judges/Coram:

Ashwani Kumar Mishra, J.

Citation: MANU/UP/3036/2017

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Whether right of pre-emption is available to coparcener even if transferee has not filed suit for partition?

The next question arises as to whether the plaintiffs
have a right of re-purchase as provided under Section 4 of the
Partition Act.
Law is well-settled that a coparcener/co-owner/cosharer
is permitted to exercise his right of re-purchase under Section
4 of the Partition Act only when the transferee has sued for partition
of his/her purchased property by filing a suit for partition. In the
instant case, the transferee, namely, defendant no. 10 has not filed 
any suit for partition and for allotment of his purchased property to
the share of his vendor. In the case of Babulal –v- Habibnoor Khan
(Dead) by L.Rs. and others, reported in AIR 2000 SC 2684, the
Hon’ble Supreme Court held as follows:-
“10. Therefore, one of the basic conditions for
applicability of Section 4 as laid down by the
aforesaid decision and also as expressly mentioned
in the section is that the stranger-transferee must
sue for partition and separate possession of the
undivided share transferred to him by the co-owner
concerned. It is, of course, true that in the said
decision it was observed that even though the
stranger-transferee of such undivided interest moves
an execution application for separating his share by
metes and bounds it would be treated to be an
application for suing for partition and it is not
necessary that a separate suit should be filed by
such stranger-transferee. All the same, however,
before Section 4 of the Act can be pressed into
service by any of the other co-owners of the dwelling
house, it has to be shown that the occasion had
arisen for him to move under Section 4 of the Act
because of the stranger-transferee himself moving for
partition and separate possession of the share of the
other co-owner which he would have
purchased………...”
A similar view has also been taken in a decision in the
case of Gautam Paul –v- Debi Rani Paul and others, reported in
AIR 2001 SC 61, wherein the Hon’ble Supreme Court in paragraph
23 held as follows:-
“23. We are in agreement with this opinion. There
is no law which provides that co-sharer must only
sell his/her share to another co-sharer. Thus
strangers/outsiders can purchase shares even in a
dwelling house. Section 44 of the Transfer of
Property Act provides that the transferee of a share
of a dwelling house, if he/she is not a member of
that family, gets no right to joint possession or
common enjoyment of the house. Section 44
adequately protects the family members against
intrusion by an outsider into the dwelling house.
The only manner in which an outsider can get
possession is to sue for possession and claim
separation of his share. In that case Section 4 of the
Partition Act comes into play. Except for Section 4
of the Partition Act there is no other law which
provides a right to a co-sharer to purchase the
share sold to an outsider. Thus before the right of
pre-emption, under Section 4, is exercised the
conditions laid down therein have to be compliedwith. As seen above, one of the conditions is that
the outsider must sue for partition. Section 4 does
not provide the co-sharer a right to pre-empt where
the stranger/outsider does nothing after purchasing
the share. In other words, Section 4 is not giving a
right to a co-sharer to pre-empt and purchase the
share sold to an outsider anytime he/she wants.
Thus even though a liberal interpretation may be
given, the interpretation cannot be one which gives
a right which the legislatures clearly did not intend
to confer. The legislature was aware that in a suit
for partition the stranger/outsider, who has
purchased a share, would have to be made a party.
The legislature was aware that in a suit for partition
the parties are interchangeable. The legislature was
aware that a partition suit would result in a decree
for partition and in most cases a division by metes
and bounds. The legislature was aware that on an
actual division, like all other co-sharers, the
stranger/outsider would also get possession of his
share. Yet the legislature did not provide that the
right for pre-emption could be exercised “in any suit
for partition”. The legislature only provided for such
right when the “transferee sues for partition”. The
intention of the legislature is clear. There had to be
initiation of proceedings or the making of a claim to
partition by the stranger/outsider. This could be by
way of initiating a proceeding for partition or even
claiming partition in execution. However, a mere
assertion of a claim to a share without demanding
separation and possession (by the outsider) is not
enough to give to the other co-sharers a right of preemption.
There is a difference between a mere
assertion that he has a share and a claiming for 
possession of that share. So long as the strangerpurchaser
does not seek actual division and
possession, either in the suit or in execution
proceedings, it cannot be said that he has sued for
partition. The interpretation given by Calcutta,
Patna, Nagpur and Orissa High Courts would result
in nullifying the express provisions of Section 4,
which only gives a right when the transferee sues
for partition. If that interpretation were to be
accepted then in all cases, where there has been a
sale of a share to an outsider, a co-sharer could
simply file a suit for partition and then claim a right
to purchase over that share. Thus even though the
outsider may have, at no stage, asked for partition
and for the delivery of the share to him, he would be
forced to sell his share. It would give to a co-sharer
a right to pre-empt and purchase whenever he/she
so desired by the simple expedient of filing a suit forpartition. This was not the intent or purpose of
Section 4. 

 HIGH COURT OF ORISSA: CUTTACK

 F.A. NO. 82 OF 2000

Rama Chandra Prusty 

-Versus
Bidyadhar Prusty and others 
 Date of Judgment: 11.12.2015

P R E S E N T:
 THE HONOURABLE SHRI JUSTICE K.R. MOHAPATRA
Citation:AIR 2016 (NOC)730 Orissa

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