1958 Supreme(P&H) 118
A.N.BHANDARI, S.S.DULAT
Nihalu – Appellant
Versus
Chandar – Respondent
Judgement Key Points
- A suit for partition must include all the lands which form part of the common property and should bring before the Court all persons having right in the property. (!)
- Co-owners have no separate rights with respect to any distinct portion of the common property, but each is interested, according to the extent of his share, in every part of the whole of such property. [23000148070004]
- A transferee from a co-owner steps into the shoes of the transferor, subject to all the rights of the other co-owners, and may lose title if the specific property conveyed is not set off on partition. (!)
- The transferee can enforce compulsory partition to end co-ownership and hold the share in severally. (!)
- Every suit in partition should include the whole of the common property, even if the purchaser's interests are confined to a specific part, to properly adjudicate rights. (!)
- A person whose interest is not co-extensive with the common property may insist that omitted property be included in the suit, or properties sufficient to set off a portion co-extensive with their interest. (!)
- When adjusting equities in partition of joint family properties, the Court should endeavor to allot the transferee the specific properties transferred, if it does not prejudice other co-owners. (!)
- A co-owner transferring the entire specific property sells their share in the joint property, entitling the transferee to claim the share that would have fallen to the transferor. [23000148070005]
- Where a co-owner sells the entire specific item rather than just their fractional share, the transferee is entitled to have the entire property included in the partition suit, with the transferor impleaded if necessary. (!)
- A prior decree for joint possession declaring shares does not alter the right to insist on partitioning the entire joint property to obtain full entitlement as transferee. (!)
- The appeal was allowed, the Single Judge's order set aside, and the District Judge's order restored. (!)
Judgment
A.N.Bhandari, J.
1. This appeal under Clause 10 of the Letters patent raises the question whether the purchaser of a co-owners share in a specific part of the common property has a right to insist that the suit for partition should include the whole of the common property and not only the specific portion of the common property sold to him.
2. One Mam Chand died some time ago leaving behind him three sons and three houses, and each of the three sons came to own one-third share in each of the three properties. Dipan who was in possession of one of these houses represented to Nihalu and Chandi defendants that this property had fallen to his share as the result of a mutual partition and that he was full owner of the said property and acting upon this representation the defendants agreed to take his property by way of exchange for another. Shortly after they had been put in possession of this house Daryao Singh a brother of Dipan, and Chandar and others, nephews of Dipan, brought a suit against the defendants for joint possession of the house in question and obtained a decree for possession of two-thirds share along with the defendants who were allowed to retain possession of t
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