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BIBHAS RANJAN DE
Purnima Das @ Purnima Das Chowdhury – Appellant
Versus
Bipasha Raha – Respondent
JUDGMENT :
Bibhas Ranjan De, J.
1. I am dealing with the revision application under Article 227 of the Constitution of India whereby petitioners challenged proceeding of Misc. Case No. 09 of 1999 arose out of a petition under Section 4 of the Partition Act, 1893 (hereinafter referred to as Act, 1893), pending before the Learned Civil Judge (Senior Division), 9th Court, Alipore, South 24 Parganas (South).
Background in brief:-
2. The property in question being undivided dwelling house originally belonged to Dilip Kumar Dutta and Pradip Kumar Dutta. Dilip Kumar Dutta died leaving behind his wife, petitioner of the Misc. Case, and two married daughters. Pradip Kumar Dutta also died leaving behind his wife and sons (OP Nos 1 & 2 in the Misc. Case) and OP No. 3 Mihir Kumar Das is a tenant in a portion of the suit property. The heirs of Dilip took out a Partition Suit (T.S. 33/1997) against legal heirs of Pradip Kumar Das incorporating said Mihir Kumar Das as proforma defendant. In the partition suit said Mihir Kumar Das claimed himself the owner of share of Pradip Kumar Dutta by purchase. Thereby, said Mihir Kumar Das was transposed as defendant no. 3.
3. During pendency of the partition sui
The application under Section 4 of the Partition Act, 1893 read with Section 44 of the Transfer of Property Act, 1882 was not premature and should be reheard by the lower court.
Right to Pre-emption – Application for pre-emption under Section 4 of Partition Act can be made at any stage of partition suit so long entire partition decree is not satisfied – It is only when decre....
The right of pre-emption under the Partition Act can be invoked at any stage of a pending partition suit, irrespective of the limitation period under the Limitation Act.
The right of pre-emption under Section 4 of the Partition Act is valid throughout the pendency of partition proceedings, irrespective of limitations set by Article 97 of the Limitation Act.
The character of a property as a dwelling house under the Partition Act is retained even with temporary use for commercial purposes, necessitating fresh adjudication of related applications.
A co-sharer cannot invoke the right to repurchase under Section 4 of the Partition Act without the stranger purchaser instituting a partition suit.
Point of Law : In terms of Section 4, the duty is cast upon Court to determine the valuation of the share of the stranger purchaser.
The right of pre-emption under the Hindu Succession Act is contingent upon the property being that of a Hindu male who dies intestate, which was not applicable in this case.
The main legal point established in the judgment is the interpretation and application of the right of pre-emptive purchase under the Partition Act, 1893 in the context of a dwelling house.
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