GHANTESHER GHOSH versus MADAN MOHAN GHOSH AND ORS.

GHANTESHER GHOSH versus MADAN MOHAN GHOSH AND ORS.

Section 4 of the Partition Act, 1893 is available to a co-owner to enforce pre-emption against a stranger transferee not only during suit for partition but also up to complete execution and satisfaction of the final decree, covering execution proceedings. The purpose is to protect family dwelling houses from intrusion by strangers; 'sues for partition' includes legal actions for execution of partition decrees. Once the partition decree is fully executed and actual possession is delivered, Section 4 ceases to operate.

Parties
Appellant: Ghantesher Ghosh; Respondent: Madan Mohan Ghosh
Jurisdiction
India
Judgment Date
18 September 1996
Procedural Posture
Civil Appeal / Appeal by Special Leave Against Division Bench Decision of Calcutta High Court in Civil Revision Application No. 2250 of 1987
Outcome
Appeal disposed of
Legal Topics
Partition Act – Section 4 Pre Emption, Execution of Final Partition Decree, Undivided Family Dwelling House, Interpretation of 'suing for Partition'
Property Law Civil Procedure Partition Act – Section 4 Pre Emption Execution of Final Partition Decree Undivided Family Dwelling House Interpretation of 'suing for Partition'

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Parties

Ghantesher Ghosh

Appellant

Madan Mohan Ghosh

Respondent

Procedural Posture

Civil Appeal / Appeal by Special Leave Against Division Bench Decision of Calcutta High Court in Civil Revision Application No. 2250 of 1987

Legal Issues

  1. 1 Whether Section 4 of the Partition Act, 1893 can be invoked during execution proceedings arising from a final decree for partition by co-owner against stranger transferee.
  2. 2 Whether 'suing for partition' in Section 4 includes initiation of execution proceedings by a stranger transferee.

Ratio Decidendi

Section 4 of the Partition Act, 1893 is available to a co-owner to enforce pre-emption against a stranger transferee not only during suit for partition but also up to complete execution and satisfaction of the final decree, covering execution proceedings. The purpose is to protect family dwelling houses from intrusion by strangers; 'sues for partition' includes legal actions for execution of partition decrees. Once the partition decree is fully executed and actual possession is delivered, Section 4 ceases to operate.

Court Disposition

Appeal disposed of

Orders

  • Application of Respondent No. 1 under Section 4 of the Partition Act is granted.
  • Respondent No. 1 to pay Rs. four lakhs to appellant in full satisfaction of his claim as donee of the share.