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2016 Supreme(Bom) 794
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH
T.V. NALAWADE, J.
Nandkumar – Appellant
Versus
Girish – Respondent
Second Appeal No. 611 of 2010 with Civil Application No. 8889 of 2016
Decided On : 30-06-2016
For the Appellant :Mr. V.P. Latange, Advocate.
For the Respondent:Mr. A.K. Gawali and Mr. R.R. Mantri, Advocates.
The main legal point established in the judgment is the court's interpretation of the right of pre-emption under section 4 of the Partition Act, 1893, and its application to the specific circumstances of the case.
Headnote:
Partition Act - Property Dispute - [Partition Act, 1893, Hindu Succession Act, 1956] - Section 4 of Partition Act, 1893 - The court discussed the provisions of the Partition Act, 1893 and the Hindu Succession Act, 1956 in a property dispute case involving a claim for partition and separate possession of shares. The court analyzed the right of pre-emption under section 4 of the Partition Act, 1893 and its applicability to the case. The court also considered the relinquishment of rights by family members and the implications of such actions on the property dispute.
Fact of the Case:
The case involved a dispute over the partition and separate possession of a property in Ahmednagar city. The plaintiff claimed a 3/7th share in the property and sought relief of partition, while the defendant contended his right of pre-emption under the Partition Act, 1893 and Hindu Succession Act, 1956. The court analyzed the facts related to the property ownership, prior transactions, and the contentions of the parties.
Finding of the Court:
The court found that the sisters had relinquished their rights in the property in favor of the brothers, and the defendant had given consent to the transaction made by the plaintiff. The court held that the defendant's claim of right of pre-emption under section 4 of the Partition Act, 1893 was not valid, and dismissed the appeal. The court also deferred the execution of the eviction decree until the actual partition was effected.
Issues: The main issues involved the validity of the plaintiff's claim for partition and separate possession, the defendant's right of pre-emption under the Partition Act, 1893, and the implications of the relinquishment of rights by family members on the property dispute.
Ratio Decidendi: The court's decision was based on the finding that the sisters had relinquished their rights in the property, and the defendant had given consent to the transaction made by the plaintiff. The court also considered the purpose behind section 4 of the Partition Act, 1893 and the burden of proof on the defendant to establish his entitlement to the right of pre-emption.
Final Decision: The appeal was dismissed, and the court deferred the execution of the eviction decree until the actual partition was effected. The defendant was given a time period to challenge the decision, with a stay on the execution of the eviction decree during that time.
T.V. NALAWADE, J.
1. The appeal is filed against judgment and decree of Regular Civil Suit No. 890/2000 (Old Special Civil Suit No. 67/1995), which was pending in the Court of Civil Judge, Junior Division, Ahmednagar and also against the judgment and decree of Regular Civil Appeal No. 9/2005, which was pending in the Court of District Judge-1, Ahmednagar. The previous number of the suit was Special Civil Suit No. 67/1995. Present proceeding is filed by original defendant No. 1 and the first appeal was also filed by the present appellant. There are concurrent findings in favour of respondent - Girish Madan.
2. In short, the facts leading to the institution of this appeal can be stated as follows:-
The suit was filed by respondent - Girish Madan for relief of partition and separate possession of his share from property bearing C.T.S. No. 3349, having area of 181.4 Sq. Mtrs. situated in Ahmednagar city. The property is given Municipal House No. 2542 for assessment purpose by the Local Body. It is the case of plaintiff that he has 3/7th share in this property as he has purchased such share from the owners of the property and so, the relief of partition was claimed. In the suit, present appellant, original defendant No. 1 filed counter claim and contended that he has right of pre-emption as provided under Partition Act, 1893 and Hindu Succession Act, 1956 and he is entitled to purchase the share which is purchased by plaintiff from the members of joint family. The suit is decreed and counter claim is dismissed.
3. The aforesaid property was owned by father of defendant Nos. 1 and 2 by name Shankar. Shankar was succeeded by six sons, widow and daughters. It was ancestral property of Shankar and he died on 9.12.1970.
4. It is the case of plaintiff that prior to purchasing the property, he was occupying a shop having size 12 x 34 ft. situated on the ground floor of the building which is northern side of the building. It was three storied building and situated on eastern side of the property. On western side, there is dilapidated portion of this building.
5. It is the case of plaintiff that prior to purchasing of the property by him, partition had taken place amongst defendant Nos. 1 and 2, other brothers of defendant No. 1 and mother of defendant No. 1. It is contended that the sisters of defendant Nos. 1 and 2 had relinquished their right in the property long back under registered document. It is contended that when plaintiff purchased the shares of two brothers of defendant No. 1 and mother of defendant No. 1, he had obtained consent of defendant No. 1 for the said transaction. It is contended that defendant No. 1 has now created dispute and he is avoiding to effect the partition in property card. It is contended that prior to purchasing property by plaintiff, defendant No. 1 had filed Regular Civil Suit No. 632/1983 and in that suit, possession of shop premises was claimed from present plaintiff by defendant. It is contended that as plaintiff has now purchased 3/7th portion, he may not be evicted from the suit property and property of his share viz. 3/7th needs to be given in his possession. Prayer was made to allot the portion of the property in which shop is situated to plaintiff in the partition.
6. Defendant No. 1 contested the matter by filing written statement. He contended that the suit is not tenable as five sisters are not joined as defendants and three brothers who have allegedly sold their shares and mother are not joined as parties to the suit.
7. Defendant No. 1 contended that he has filed Regular Civil Suit No. 632/1983 for getting the possession of shop premises from defendant No. 1 and due to this circumstances, the suit filed by the tenant needs to be stayed in view of the provision of section 10 of Civil Procedure Code.
8. Defendant No. 1, appellant admitted that the property was ancestral property of his father. He denied that his sisters had relinquished their right in favour of all the brothers. He contended t
