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 a party can exercise the right of pre-emption for an indefinite number of transactions?

 We suppose that the aforesaid answers the dilemma, i.e. whether the

right of pre-emption can be enforced for an indefinite number of

transactions or it is exercisable only the first time. We opine that it is only

exercisable for the first time when the cause of such a right arises, in a

situation where the plaintiff-pre-emptor chooses to waive such right after

the 1966 Act becoming operational. Section 9 of the said Act operates as a

bar on his exercising such right on a subsequent transaction relating to the

same immovable property. We also wonder what really remains of this right

of pre-emption after so many years in the facts of this case when the

purchaser has been enjoying it for more than four decades!

 Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1442 OF 2016

RAGHUNATH (D) BY LRS. Vs RADHA MOHAN (D) THR. LRS 

Author: SANJAY KISHAN KAUL, J.

Dated: OCTOBER 13, 2020.

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