SRILEKHA GHOSH (ROY) AND ANR. versus PARTHA SARATHI GHOSH

SRILEKHA GHOSH (ROY) AND ANR. versus PARTHA SARATHI GHOSH

Section 4 of the Partition Act, 1893 does not apply where the transferee is not a stranger, but a married daughter of the undivided family; daughters are not strangers to the family; and no intention to transfer interest to a stranger was expressed by the plaintiffs. Hence, the petition for pre-emption by the defendant brother is not maintainable and is premature.

Parties
Appellant Plaintiff No.1: Srilekha Ghosh (Roy); Appellant Plaintiff No.2: Sulekha Ghosh (Mitra); Respondent Defendant: Partha Sarathi Ghosh
Jurisdiction
India
Judgment Date
09 July 2002
Procedural Posture
Civil Appeal / Appeal Against Order of Calcutta High Court in CO 3529/92, Judgment Dated 19.04.1999
Outcome
Appeal disposed of; order of High Court modified; petition under Section 4 Partition Act not maintainable.
Legal Topics
Partition of Dwelling House, Pre Emption Under Partition Act Section 4, Status and Rights of Married Daughters in Undivided Family Property
Property Law Partition of Dwelling House Pre Emption Under Partition Act Section 4 Status and Rights of Married Daughters in Undivided Family Property

Case Brief

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Parties

Srilekha Ghosh (Roy)

Appellant Plaintiff No.1

Sulekha Ghosh (Mitra)

Appellant Plaintiff No.2

Partha Sarathi Ghosh

Respondent Defendant

Procedural Posture

Civil Appeal / Appeal Against Order of Calcutta High Court in CO 3529/92, Judgment Dated 19.04.1999

Legal Issues

  1. 1 Whether Section 4 of the Partition Act, 1893 applies to allow a co-sharer (brother) to pre-empt and purchase the share of his married sister in an undivided family dwelling house
  2. 2 Whether married daughters are 'strangers' to the family under Section 4, Partition Act
  3. 3 Under what conditions can family members transfer their interest to a stranger

Ratio Decidendi

Section 4 of the Partition Act, 1893 does not apply where the transferee is not a stranger, but a married daughter of the undivided family; daughters are not strangers to the family; and no intention to transfer interest to a stranger was expressed by the plaintiffs. Hence, the petition for pre-emption by the defendant brother is not maintainable and is premature.

Court Disposition

Appeal disposed of; order of High Court modified; petition under Section 4 Partition Act not maintainable.

Orders

  • High Court order granting pre-emption set aside to the extent stated; trial court not to proceed with valuation for pre-emption under Section 4.
  • If plaintiffs decide not to reside and wish to transfer interest, offer must be made to defendant; he may purchase at agreed price or at court-fixed valuation.