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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Valuation of property as per Partition Act

 It is next contended on behalf of the respondent No. 1 that, as prayed by the plaintiff appellants and respondent No. 2, the property should be put up for auction sale so that the highest bid in the auction may determine the market value of the property. This was exactly the order that was passed by the learned Single Judge of (he High Court, but the respondent No. 1 felt aggrieved by the said order and preferred an appeal to the Division Bench of the High Court. Such a contention is not only devoid of any merit, but also is not maintainable at the instance of the respondent No. 1, who has expressed his willingness by an application under Section 3(1) of the Partition Act to buy up the shares of the other parties at a valuation. The respondent No. I, therefore, cannot be allowed to blow hot and cold. The contention is, therefore, rejected.

Supreme Court of India

Dr. Kishore Chand Kapoor And Ors. vs Dharam Pal Kapoor And Ors. on 24 October, 1986

Equivalent citations: AIR 1987 SC 66, 1986 (2) SCALE 684, (1986) 4 SCC 505

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Partition Act s. 2 & 3-right to defendent to purchase property

As soon as a shareholder applies for leave to, buy at a valuation, the share of the party asking for a sale under s. 3 of the Partition Act he obtains an advantage in that the court is bound thereafter to order a valuation and after getting the same done to offer to sell the same to such shareholder at the valuation so made. This advantage, which may or may not fulfil the juridical meaning of a right, is nevertheless a privilege or a benefit which the law confers on the shareholder. If the plaintiff is allowed to withdraw the suit after the defendant has gained or acquired the advantage or the privilege of buying the share of the plaintiff in accordance with the provisions of s.3(1) it would only enable the plaintiff to defeat the purpose of s. 3(1) and also to deprive the defendant of the above option or privilege which he has obtained by the plaintiff initially requesting the court to sell the property under s.2 instead of partitioning it. Apart from these considerations it would also enable the plaintiff in a partition suit to withdraw that suit and defeat the defendant's claim which, according to Crump, J. Tukaram's case cannot be done even in a suit where the provisions of the Partition Act have not been invoked., [915G-916A] The trial court bad prima facie come to the conclusion that a division by metes and bounds was not possible. That was sufficient so far as the proceedings in the present case were concerned.. The language of s.3 of the Partition Act does not appear to make it obligatory on the court to give a positive finding that the property is incapable of division by metes and bounds. It should only 'appear' that it is not so capable of division. [916C]

Section 3(1) does not contemplate a formal application being filed, in every case. The words employed therein simply mean that the other shareholder has to inform the court or notify to it that he is prepared to buy at a valuation the share of the party asking for sale. In the written statement of the defendant in the present case it was said that even if the court held that the property was incapable of division into two shares the defendant was ready and willing to buy the plaintiff's share in the suit at a valuation to be made in such a manner as the court might think proper. That was sufficient compliance with the, requirements of s. 3 of the Partition Act. [916F-G] Tukaram Mahadu Tandel v. Ramchandra Nahadu Tandel, I.L.R. 49 Bom. 672, applied.

Supreme Court of India

R. Ramamurthi Iyer vs Raja V. Rajeswara Rao on 22 August, 1972

Equivalent citations: 1973 AIR 643, 1973 SCR (1) 904

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