Partition Suit
The name of the plaintiffs and other co- sharers, by inheritance or otherwise, appear in the latest SA/RoR khatina. No decree can be passed by the trial court, when it admits that, the suit property is not identifiable with SA/RoR plots or khatian. Nor any saham can be given in respect of an unspecified property. The trial court in its judgment has recorded that, the suit property is not identifiable with reference to the RoR or SA khatain, although both the courts below are silent about non-identification of suit property for lacking any boundary and for lack of any reference to the latest survey or khatian bearing names of the plaintiffs as the tenants, and both the courts below have failed to appreciate that no unidentified property can be partitioned. [ 73 DLR 111]
The Code of Civil Procedure, 1908
Suit for partition
The appellate court though affirmed the sahams allotted by the trial court to the plaintiffs and the defendant No.30 but disapproved the saham allotted to the defendant No.31 and allotted a separate saham of 1.44 acres of land to the defendant Nos. 10,14 to 20 and another separate saham of. 701/2 acre of land to the defendant No.21 out of Plot No.605 accepting the case of the defendant Nos. 10,14-20 and 21. Abdul Halim vs. Dina Bandhu Chandra Das (Nazmun Ara Sultana J) (Civil) 9 ADC 394
Suit for partition
Simple suit for partition was not main- tainable in the absence of consequential relief .....(9) M
There is infirmity in the impugned judgment and order passed by the High Court Division for which it warrants interference with the same by this Division. .....(12)
Abdul Motaleb Howlader vs. Sonab Ali Bepari (Obaidul Hassan J) (Civil) 20 ADC 101
Code of Civil Procedure (V of 1908)
Order XIV, rules 1 and 2
If the plaintiff does not make proper prayer in the plaint, the suit must not be dismissed on the said ground; rather it would be the duty of the Court to frame appropriate issue/s on the basis of the pleadings and submissions put forwarded by all the parties to the suit and proceed with the suits towards its effective disposal......(19) [ 73 DLR 52]
Code of Civil Procedure (V of 1908)
Section 9
When a natural/juristic person would find a dispute in the way of her/his enjoyment of any right of a civil nature, s/he is entitled to institute a civil suit in a competent Civil Court unless its cognizance is either expressly or impliedly barred by a statute. [ 73 DLR 52]
Code of Civil Procedure (V of 1908)
Order XX, rules 18(1) and 18(2)
The consequential division/separation by metes and bounds, considered to be a ministerial or administrative act requiring the physical inspection, measurements, calcula tions and considering various permutations/ combinations/ alternatives of division is referred to the Collector under Order 20, rule 18(1) of the CPC and is the subject matter of the final decree under Order 20, rule 18(2) of the CPC.
Since in a partition suit, a person approaches the Civil Court with a grievance of not being able to enjoy his/her property absolutely or independently or peacefully and, in responding to the plaintiff's case, if the defendant questions the very title of the plaintiff, in that scenario, it is incumbent upon the Court to assess and determine the plaintiff's title, right and interest in the suit land. Even, if the plaintiff is not opposed/encountered by the defendant as to title on the suit land, it would be a prudent performance for a Court to examine the source/basis of the plaintiff's as well as defendant's ownerships in the suit land and thereby determine the title of the plaintiff and the defendant/s. Because, it would not only be useful and helpful for the Court-appointed Commissioner or the Collector to proceed further with the suit towards execution of the decree, but it would also help to curb multiplicity of suits. That is to say, in a suit for partition or separation of a share, irrespective the defendant's challenge as to the plaintiff's share in the suit land, the Court, at the first stage, would decide whether the plaintiff has a share in the suit property and whether s/he is entitled to division and separate possession. [ 73 DLR 52]
Code of Civil Procedure (V of 1908)
Order VII, rules 1(e) and (g)
When a grievance or complaint or dispute is placed before a Court, the Court's primary duty is to consider its substance, which may be derived from not only the averments and prayer, but also from the evidence led by the parties at the trial. Because, considerations of form cannot override the legitimate considerations of substance. From the averments and/or prayer (pleadings), if it transpires that a plea is not specifically made but it is covered by an issue by implication, and it appears to the Court that other side would not be prejudiced; in other words, it is within the knowledge of the other side that the plea was involved in the trial, then, the mere fact that the plea was not expressly taken in the pleadings would, in my opinion, not necessarily debar a party from relying upon it if it is satisfactorily proved by evidence. [ 73 DLR 53]
Code of Civil Procedure (V of 1908)
Section 16
At the very beginning of the averments of the plaint there should be a 'cause title'; meaning a brief statement about the reason for institution of the suit, that information should be sufficient for the nazarat section of the court for classifying the suit as 'suit for declaration of title', 'suit for specific performance of contract', 'suit for recovery of rent, etc. If there is really a need of naming the suit, the litigants, Advocates and Courts may use the simple expressions of 'Civil Suit' for all classes of substantive suits and 'Civil Miscellaneous Case' for all types of civil miscellaneous proceedings, such as, pre-emption case, application for restoration of the suit or any other miscellaneous application arising out of the substantive suit. ..(13) [ 73 DLR 53]
Hotchpotch
Suit for Partition-When various properties are put together or blended for the purpose of achieving the portion of property to be distributed among the beneficiaries or legal heirs as per the laws of the concerned country; in words, in order to divide the properties, which are presently enjoyed by the different individuals by virtue of inheriting or purchasing from a single person/source, 'hotchpotch' is the process of combining and assimilating of the properties. Although the terminology may seem to be a jargon to the commoners, however, it is widely used in legal parlance in the suits for partition in all over the common-law jurisdiction. [ 73 DLR 53]
Code of Civil Procedure (V of 1908)
Section 54
In a suit for partition, once the Court passes the preliminary decree (i.e. make a declaration as to saham of the plaintiff/s and defendant/s), it is incumbent upon the Court to proceed with the separation (i.e. the ministerial or administrative act) of the plaintiff's saham from other parties of the suit, without expecting/waiting for a formal application from the parties of the suit. [ 73 DLR 53]
Appellate Court can take additional evidence
Evidence Act (1 of 1872)
Sections 165
The appellate Court, in an appropriate suit if required, is not only empowered to take additional evidence, which would not amount to filling up lacuna caused due to the negligence/failure of any party to the suit, but also competent to call for necessary documents and persons by invoking the Court's power under section 165 of the Act read with sections 30, 31, 32 and Order 19 of the CPC. Under the constitutional duty of superintendence in addition to being invested with the revisional power by the CPC, this Court notifies that when the learned Judges of the subordinate Courts perform their functions as the trial Court's Judge or the appellate Court's Judge, they should not hesitate to resort to the provisions of section 165 of the Act, sections 30, 31, 32 and Order 19 of the CPC in an appropriate case for the purpose of fair and effective adjudication of a suit. The trial Courts and appellate Courts, under the provisions of laws, possess ample powers to summon and, if the situation warrants, then, to compel the appearance of any person in the Court and to produce the necessary relevant papers to the Court and take their deposition as Court Witness/es. [ 73 DLR 54]
Partition Suit
The name of the plaintiffs and other co sharers, by inheritance or otherwise, appear in the latest SA/ROR khatina. No decree can be passed by the trial court, when it admits that, the suit property is not identifiable with SA/ROR plots or khatian. Nor any saham can be given in respect of an unspecified property. The trial court in its judgment has recorded that, the suit property is not identifiable with reference to the RoR or SA khatain, although both the courts below are silent about non-identification of suit property for lacking any boundary and for lack of any reference to the latest survey or khatian bearing names of the plaintiffs as the tenants, and both the courts below have failed to appreciate that no unidentified property can be partitioned.......(27 & 28) [ 73 DLR 111]
Partition Suit
Partition—suit for, by mortgagee—Suit for partition by a usufructuary mortgagee of an undivided share—maintainable.
In the present case the question for consideration is whether it is necessary to have a partition to give effect to the transfer i.e. the mortgage in favor of the plaintiff.
The mortgage in the present case is a usufructuary one and so the plaintiff is entitled to possession of the mortgaged property. Partition is, therefore, necessary for giving possession to the plaintiff— mortgagee.
Suit for partition is maintainable at the instance of the usufructuary mortgagee whether he is in actual possession or out of possession of the mortgaged land, provided the mortgagor is a party to the Suit and the suit is necessary for giving effect to the mortgage.
In case the mortgagee be not in actual possession of the mortgaged land it would be necessary to pray not only for partition but also for khas possession of the share allotted to him on ejectmcnt of other co-sharers from that portion. Md. Eshaque vs. Afzal Ahmed (1960) 13 DLR 115.
Where defendant also asks for partition of his share—procedure to follow—Effect on the jurisdiction of the Court when defendant joins in asking a share.
If a defendant wants to get his share by partition the ordinary rule should be that he files a suit for it. He may however be allowed to make such claim even in a written statement provided he pays court fee on this claim.
In such a case, truly speaking, the written statement is only a plaint, and proceedings in the two suits, that is one filed by the plaintiff and the other by the defendant, arc deemed to be consolidated and the answer to the question as to what is henceforth the jurisdictional value of the suit would depend upon whether the Court regard the two suits as one or regard it an ordinary case of consolidation. If it is a simple consolidation of two suits, i.e., there is no effect on jurisdictional value. If the view is taken that the defendant who has prayed for a partition of his share should also be regarded as plaintiff in the suit then the jurisdictional value would be the total of the values of the shares of the plaintiff and of those defendants who claim to have their shares separated. Ajiruddin Mondal vs. Rahman Fakir (1961) 13 DLR (SC) 191.
Plaintiff out of possession—Claim amounts to asking for two reliefs.
When the plaintiff is out of possession of joint property the grant to him of separate possession of his partitioned share amounts really to two reliefs. (1) Joint possession of his share, and (2) the transformation of that joint possession into separate possession of his partitioned share, for a plaintiff out of possession is not entitled to partition unless he first gels joint possession. Ibid
Partition suits and suit for mesne profits, drawing up of the final decree.
In partition suits and in suits for mesne profits, the drawing up of the final decree may depend upon the filing of the necessary stamp paper or court fees.
Barada Prasanna vs. Kobbad Mia (1961) 13 DLR 765.
A surplus of two decimals of land with nobody to claim it—No other co-sharer being in existence, the suit for partition maintainable.
The trial court has discovered that a residium of 2 decimals of land would ensue on a computation of he figures that have been given by the parties to the suit. True, but it does not follow that, of necessity, there must be another co-sharer in existence with regard to the aforesaid 2 decimals of land which appears to be a surplus on actual measurement of land as claimed by the parties.
In this view of the matter there is no substance in the argument that the prayer for partition is incompetent without impleading a co-sharer whose existence has not been proved and who may not exist at all.
Bazlur Rahman vs. Mahmudur Rahman Bhuiyan (1967)19 DLR 344.
Partition suit remained pending till the passing of the final decree.
The judgment does not clearly lay down the shares of the respective parties and also about the allotment of saham. We do not consider that there is any bar in the learned Subordinate Judge’s doing so, for a partition suit remains pending till the passing of the final decree.
Muzaffar Vs. Kabiruddin, (1969) 21 DLR 97.
Partition suit—where plaintiff (co-sharer) out of possession of his share of property— Remedy lies in a partition suit.
Plaintiff having right and title in respect of his share to the property in suit but being out of possession, his remedy for separate possession lies in a partition suit.
Haji Sorkum Ali Vs. Huson Ali (1969) 21 DLR 423.
Declaration of title in a partition suit when not necessary.
The main question is whether the Suit IS maintainable without declaration of title of the plaintiffs. On the death of Sachindra his title passed on to the plaintiffs, his minor sons, and his widow, defendant No. I, but the plaintiffs for some reason or other was thrown out of possession, according to the defendant No.2 since their father’s death. But their dispossession will not disentitle them to recover possession on payment of ad—valorem court—fee. The suit is not barred by limitation as the suit has been filed within one year of attainment of majority by plaintiff no.1. He is entitled to file the suit within three years from attainment of his majority as laid down in section 6 of the Limitation Act. During the period of their minority plaintiffs’ title was not extinguished and as such there is no necessity for getting a declaration of their title. The view taken by j the High Court Division that the suit is not maintainable without declaration of title is clearly erroneous.
Sanjib Kumar Bose & another, Vs. Syed Shamsuddin Ahmed. (1981) 33 DLR (AD) 347.
Partition suit— General rule that all joint properties be included is a rule of equity and can be relaxed when necessary on this ground of equity and convenience.
Md. Shahidul Alam Khan Vs. Md. Gulzar Alam (1984) 36 DLR 290.
Allotment of a Share in respect bow of non contested defendant
As defendant no. 17 never contested the suit nor prayer for any share, her entitlement in the joint suit land could not be decided. Consequently, she did not get any share declared in the joint property in the preliminary decree. So the order of the appellate Court for allotment of a share to her and! or other defendants beyond the terms of preliminary decree is wholly Misconceive and baseless and arbitrary.
A. Ali Sheikh & Anr Vs. K. Ali Sheikh & Ors. 11 BLT (HCD)-444
Whether in a Suit for Simple Partition the court is debarred to decide question of title or genuineness of a document, incidentally
When a suit is based on joint ownership and enjoyment, a co-sheerer in possession is always entitled to seek partition simplicitor without seeking any declaration of his title. In deciding such suit, questions of title and nature of particular transaction may come up for decision, incidentally and need to be decided as incidental to adjudication of the shares of the co-owners.
Birendra Nath Mondal & Ors Vs. Dulal Chandra Mondal & Ors 13BLT (HCD)10
Section-4
(a) “Dwelling house” co-sharer’s attachment to ancestral house intention of the legislators to make the provisions of S. 4 of the Partition Act
After considering the modes of our people, the co-sharer’s attachment to their ancestral house and their anxiety to preserve the purdah and privacy of the members and inmates of the undivided dwelling house, the legislators made the provisions of section 4 of the Partition Act. The expression a dwelling house belonging to an undivided family is to be liberally construed. We have done so in Sree Jugal Kishori Sarker Vs. Azizur Rahman & Ors. 40 DLR(AD) 150. A co-sharer’s prayer to buy up a stranger-purchaser may not be refused on a technical ground.
Syesta Bibi and Other’s Vs. Juma Shah and Other’s 1BLT (AD)-34
(b) There is no time limit for filing an application under section 4 of the Partition Act
The appellate Court’s finding that “That suit land is no doubt a homestead, but is not a dwelling house of an undivided family” is utterly Misconceived. In the suit land an undivided dwelling house is situated. The defendant himself claimed to be residing in a portion there. The suit property never lost its character of an undivided homestead because there had admittedly been not partition by metes and bounds by any previous arrangement. The impartible character of the suit property remained undisturbed when the suit was filed in 1962. There is no time limit for filing an application under section 4 of the Partition Act. In the instant case, the plaintiffs claim cannot be called sale.
Syesta Bibi and Other’s Vs. Juma Shah and Ors. 1BLT (AD)-34
(c) To buy-out a stranger purchaser-Inordinate delay in filing application under S-4 of Partition Act from the date of purchase consequences— What involves a kind of forced sale for the stranger purchaser
If an application under section 4 of the Partition Act is filed to buy out a stranger purchaser after an inordinate delay from the date of the purchase, then the applicant himself may suffer. When an applicant’s prayer is allowed under section 4 of the Partition Act, it involves a kind of forced sale for the stranger purchaser. And hence, the court would, in equity, determine the valuation of the transferred share on the date of the filing of the application for permission to purchase the share of the stranger purchaser.
Syesta Bibi and Others Vs. Juma Shah and Others. 1BLT (AD)-34
Section-4
Partition suit by transferee of share in dwelling house —the plaintiff petitioner is in possession of .5612 acres of land in ejmali by registered kabala, filed the present partition suit —opposite party No. 1 as defendant No.1 contested the suit, contending inter alia that he has been possessing the suit land as cosharer and suit land being dwelling house that the defendant is ready to purchase the share of the plaintiff-petitioner. The learned trial court decreed the suit in part with direction that the ‘defendant may purchase .04 decimals of homestead having the dwelling hut and courtyard on it and the plaintiff will get .5212 decimals of land out of the jote — the lower appellate court reversing the judgment and decree of the trial court in the manner and on the finding that the plaintiff is a stranger in the suit land, if plaintiff is allotted shaham in the ejmali homestead and ejmali tank the members of the Hindu family cannot conveniently use the homestead and the tank which is a cartilage of their dwelling house, trial court ought to have allowed pre-emption in favour of the contesting defendant No. 1 in full—Held: It appears that the appellate court while reversing arrived at its own independent findings on the issues involved in the case rule is therefore discharged.
Hafizuddin Bepari Vs. Nepal Chandra Das & Ors. 4BLT (HCD)-109
Section-4
Delivery of possession by the Advocate Commissioner
The Advocate Commissioner while delivering possession to the parties in a partition suit shall abide by the final decree and not by the preliminary decree.
Md. Shahjalal & Ors Vs. Sultan Gazi & Ors. 6BLT (AD)-233
Section-4
Applicability—The Kha schedule property may be a dwelling house but it was not under direct occupation of the plaintiff and defendant No. 1 and the plaintiff was not residing in that house when the suit for partition was filed and there is no evidence that the undivided family occupied Kha schedule property—we hold that Section 4 of the Partition Act has no manner of application in the present case.
Bina Roy Chowdhury Vs. Amullya Roy Chowdhury & Ors. 7BLT (HCD)-80
Exceptions; When all property need not be included
The general rule that a partition suit should embrace all the joint properties of the parties concerned is indeed a rule of convenience. If properties are left out in a partition suit it brooks further litigation. It is true that this rule is relaxable. But there are specific situations calling for relaxation. They are generally (a) where different portions of the property lie in different jurisdictions, or (b) when some portion of the property is at the time incapable of partition, or (c) when the property from its nature is impartible, or (d) when property is held jointly with strangers who cannot be joined as parties to a general suit for partition, or (e) where cotenants, by mutual agreement, decide to make partition of a part of the joint property retaining the rest in common.
Nurul Afsar Vs Rafiqul Ahmed 7BLT (AD)-335
Section-4
Decrees never put into execution within 12 years.
Decree in partition suit of I 1 6, appears that the decree in Title Suit No. 167 of l9I was never put into execution within 12 years and as such the decree holder plaintiff including plaintiff nos. 4 and 5 (Safunnessa and Jahra Bibi) could not get into possession in the decreetal land particularly in ‘Cha and Tha’ of the schedule upon evicting the defendants including the sons of Moinuddin Kochwan, the defendant no. 21, the substituted heirs of defendant no. 21-Kha Abdus Sattar, the predecessor-in-interest of defendant nos. 6-9 and Abdul Halim, the substituted defendant no. 21-Ga, the predecessor-in-interest of defendant nos. 1-5, the transferors of the defendant nos. 10-17.
Sahani Bibi & Ors. Vs. Nurul Islam & Ors 12 BLT (AD)-11
Section—4
It is proved beyond doubt the homestead upon the plot No.2523 and the land of plot No.2525 are the part and parcel of the ancestral homestead of the plaintiff and as well as of the defendant No.2 and they’re having been no partition by metes and bounds and the defendant No.1 being an outsider and being not a member of the plaintiffs family, the land purchased by him comes within the Mischief of section 4 of the Partition Act.
Surajit Kumar Das & Ors. Vs. Jahanara Hossain & Ors 14 BLT (HCD)383
Section-4 read with Specific Relief Act, 1877 Section-42
A complicated question of title is involved in the suit which cannot be settled in a simple suit for partition without claiming declaration of title.
Jotimoy Datta & Ors Vs Mritunjoy Datta @ Palash & Ors 16 BLT (HCD)446
Civil Justice in respect of Partition
In a partition suit the rights of the parties are finally determined in the preliminary decree by which specific sahams are allotted. The final decree is just a follow-up of the preliminary decree whereby actual partition of the ejmali property is effected through the Court in execution of the preliminary decree. In effecting partition by metes and bounds the existing possession of the parties is usually maintained as for practicable and in so far it is not inconsistent with the decree. Possession or no possession in a particular plot or plots of an ejmali property cannot therefore, be a ground to refuse a decree for partition once the plaintiffs title and possession is found in any portion of the suit property.
Md. Azimuddin Talukder & Ors. Vs. Md. Abdul Mannan Talukder & Ors. 7BLT (HCD)-43
Principle—Partition Suit
The cause of action for a partition suit being recurring one the dismissal of a partition suit for default does not bar again a suit for partition.
Abdul Jabbar Vs Sultan Mia & Ors. 2BLT (HCD)-139
Patent and Designs Act, 1911 Section-51A(1)(a)
When a design is registered prima facie it is presumed to be new and original. But entry in the register is not conclusive thereof and the presumption is rebuttable one. We have examined the sample, compared them and looked at their design as a whole and found that the design of the respondent is nothing but an imitation of the petitioner’s design. So, the design of respondent No.1 is not a new or original one. The respondent’s design is, therefore, liable to be called on all the grounds stated in Section 51A(1)(a) of the Act.
Mr. Yar Mohammad Vs. Mr. Satadal Dhali 9 BLT(HCD)-31
Section-51A
Has no locus standi-in the instant case the petitioner has utterly failed to show how he is an interested person in respect of a design relating to cycle and rickshaw parts inasmuch as he has failed to bring home his claim that he is a dealer of those parts or that at any point of time he manufactured them. In that view of the matter it appears that he has failed to fulfill the condition precedent for filing an application under section 51 of the Act. Moreover, on a perusal of the materials on record it appears that it has been finally established that the registered design bearing No.01010, dated 12.8.92 is a new and original one-application is rejected.
Md. Shahidullah Vs. Year Mohammad. 9BLT(HCD)-132
Section-51A(1)
It appears that the design of the respondent No.1 substantially resembles with the design of the petitioner, which is apparent in the neck eye. Therefore, it appears that the respondent No.1 by suppressing the fact that a similar design had already been registered as back as in 1994 obtained the registration of their design by committing a fraud upon the Controller of Designs. It further appears that the respondent No.2 also failed to discharge the legal duties cast upon him and after proper scrutiny failed to discover the fact that the design applied for already registered. Thus, the registration given by the respondent No.2 in favour of the respondent No.1 being registration No.01638 dated 14.5.96 in class-I is neither a new nor an original design and it has previously been published in Bangladesh and also registered by the petitioner in 1994. Thus the registered design No.01638 dated 14.5.96 is class-I is liable to be cancelled.
Golam Rabbani Chowdhury Vs. Md. Izzat Ali Khan & Anr. 9 BLT(HCD)-170.
S.2. Persons owing interests, which are not coordinate in degree can claim partition and get relief.
Persons in joint possession have a right to partition although their rights may not be identical; Section 2 of the Partition Act provides that if it appears to the court that by reason of the nature of the property or of any other special circumstances a division of the property cannot conveniently be made and that a sale of the property and distribution of the proceeds would be more beneficial for all the shareholders, the court may direct sale of the property and a distribution of the assets.
Financial condition of either of the parties cannot be a guide for application of the provisions of section 2 of the Act.
Santa Kumari De Vs. Nanda Kumar De (1951) 3 DLR 266; (1954) 6 DLR 379.
S.4. Relief may be granted in the execution proceeding.
Relief under section 4 of the Partition Act may be granted in the execution proceeding in a partition suit. Its provision shows that the time for granting relief is co-extensive with the partition proceeding which commences with institution of the Suit and terminates with the delivery of possession. PLR (Dac.) 844.
There is no reason to limit the operation of the section up to the stage of the final decree nor is there anything to limit the word “Court” to the Thai court and the appellate court only and not to include the executing court. Ibid.
Executing Court not to amend the final decree—but to give direction.
When the executing court grants relief under section 4 of the Partition Act, the said court is not to amend the final decree but to make an order directing conveyance by the party concerned within a specified time failing which the court will execute the conveyance at the cost of the other party in whose favor the conveyance is to be executed. Such order is deemed to be a decree under section 8 of the Partition Act. 1 PLR (Dac) 844.
This section is equally applicable to a suit brought by a co-sharer and not only when a suit under the section is brought by a 3rd party purchaser.
Section 4 of the Partition Act will apply not only when a suit is brought by a stranger — purchaser for partition of a dwelling house but also in a case instituted by any other co-sharer, because in a suit for partition all the parties are in the capacity of plaintiffs.
When a partition suit is instituted every co sharer, will be entitled to have a share in the joint properties and will be in a position to proceed with the suit.
The criterion to decide whether section 4 of the Act will apply or not will be whether a stranger-purchaser is going to have a share in the dwelling house belonging to an undivided family.
Md. Madgu Bhuiya vs Jabban Haq (1959) 11 DLR 355.
Residence, whether necessary.
In order to get the benefit of section 4 of the Partition Act, it is not necessary that a person must live in the family dwelling—house. It is not the residence but the ownership of the dwelling house that entitles a person to apply under section 4 of the Act. 7 PLR (Dac) 945.
Plaintiff entitled to purchase share of undivided family property from a stranger transferee or ask for partition.
The question is whether a plaintiff, who is not a transferee in respect of a share of a dwelling house belonging to an undivided family, but a member of the family and a share—holder of the dwelling house, can claim to purchase the share of a stranger-transferee?
Held— The right of pre—emption in relation to a dwelling house as envisaged and authorized in section 4 of the Partition Act is exercisable by a member of an undivided family not only when a stranger— transferee figures as a plaintiff, but also as a defendant in a partition suit, and claims a saham out of the homestead.
The object of the section 4 of the Partition Act is to prevent intrusion of strangers in the dwelling— house of an undivided family. This object would be frustrated if a stranger—purchaser forces himself into the dwelling house of an undivided family, drives the other co—owners to file a suit as plaintiffs, and then figuring as a defendant is allowed to defeat the claim for pre-emption under sec. 4 of the Act on a narrow and literal interpretation of the section. In a suit for partition, the parties to the suit arc in the position of the counter—claimants, and it can very well be predicated of a defendant in a suit for partition that he is suing for partition.
The language of section 4 does not militate against the view that the object of the Legislature being to prevent intrusion by strangers to the dwelling—house of an undivided family, the terms of section 4 should be liberally construed.
Bhaba Kanta Joddar Vs. Satish Ch. Mandal, (1960) 12 DLR 649.
A stranger-purchaser of a dwelling-house of an undivided family is not entitled to get joint possession or other common or part enjoyment of the house. His only remedy is to file a suit for partition and for specific possession on partition of his share, subject to the right of co-sharer under section 4 of the Partition Act.
Md. Habibulla Patwari Vs. Pranballav Bhakta (1957) 9 DLR 119.
Where plaintiff is a stranger to the joint Hindu family—he is not entitled to a share on partition in the homestead of the family.
Radha Chandra Sardar vs Harihar Mondal (1961) 13 DLR 347.
The applicability of the section depends on certain factors. The prerequisites to the applicability of section 4 are:-
(1) The property must be a dwelling house.
(2) It must belong to an undivided family.
(3) There must be transfer of a share of the dwelling house.
(4) The transferee must be a person who is not a member of the undivided family.
(5) There must be a suit for partition.
(6) One or more members of the undivided family must undertake to purchase the share of the transferee
The above fundamental requirements of law must be satisfied before the benefit of section 4 can be claimed by a member of the undivided family.
Section 4 was enacted to afford protection to the members of an undivided family against a stranger purchaser. Its simple object was to prevent intrusion into the dwelling house of an undivided family by strangers on the basis of purchase of some share in such dwelling house.
Md. Habibullah Vs. Mvi. Saleh Chowdhury, (1968) 20 DLR 489.
Dwelling house, buying up share by share-holder—
Elements necessary for attracting section 4 of Partition Act are (i) the house belongs to an undivided family; (ii) the share thereof has been transferred to one who is not a member of such undivided family and (iii) the transferee should sue for partition.
Partition suit—
In a Suit for partition the plaintiff and the defendant stand on the same footing with regard to a party’s capability to ‘sue’ and to be ‘sued’.
Dwelling house, buying tip the share of the transferee—For buying up the shares of the transferee the transferee must be found to have sued at the relevant time when actually the partition suit under section 4 of the Partition Act is filed.
In a partition Suit a particular plaintiff or a defendant might have prayed for having their shares partitioned but unfortunately for some reason or other they might have given up that claim and in that case it cannot be said while considering a petition under section 4 of the Partition Act that the petitioner can be allowed to buy up the shares of those parties who subsequently gave up their claim. The transferee must be found to have sued at the relevant time when actually the partition Suit under section 4 of the Partition Acts is filed for buying up the shares of the transferee.
Kefatulla Sikdar Vs. Korban Sk. (1974) 26 DLR 96.
Female member of undivided family upon marriage goes to the husband’s house— No longer to be treated as a member of the undivided family.
A female member of an undivided family who marries and goes to live in her husband’s house prima fade gives up her intention of continuing to reside in her old house and so she is prima facie no longer a member of the family and as such she is not entitled to the benefit of section 4 of the Partition Act.
Abdul Gani Vs. Asifadullah (1982) 34 DLR 245.
“Undivided family” means undivided qua the dwelling house—When there was no partition of the dwelling house.
“An undivided family” must be taken to mean, “Undivided qua the dwelling house in question and to be a family which owns the house but has not divided it.”
Azizur Rahman Vs. Jugal Kishori Sarkar (1984) 36 DLR 351.
When claim u/s. 4 arises
—When a stranger transferee sues for partition then only the claim under section 4 of the Partition Act can be laid. Ibid.
—Section 4 will apply also in a case instituted by a co-sharer. Ibid.
Under section 4 only the area actually covered by the dwelling house can be claimed by the co sharer and not any area beyond that. Ibid
S. 4 (I) The conditions to be fulfilled for application of the section 4(I).
The house concerned should be in actual use though not necessarily in constant occupation. Grant of a tenancy (not a permanent and irrevocable lease) will not have the effect of making a house owned by members of an undivided family cease to be a dwelling—house.
Md. Tozammal Hossain vs. Purni Agarwalini (1958) 10 DLR 318—8 PLR (Dac.) 778
Where co-sharer has permanently left the country—whether he can invoke the provisions of sub-section.
The principle that the creation of a tenancy by co-sharer owner does not terminate the possibility of his returning to its occupation and, therefore the provisions of section 4(I) of the Partition Act are available to him as a co-sharer has no application where the co-sharer owner has left the country, where the house is situated for good.
Priya Sarkar Sen vs. Abdul Wahed Sheik (1960) 12 DLR 584.
S. 8. Orders under section 4 arc deemed to be a decree under section 8. (See under section 4, above). 1 PLR (Dac.) 844.
Simple Partition –Maintainability
In a suit for partition the Court will no doubt consider the title of the plaintiff to the suit land in some details. In this case I have already noticed that the title of the plaintiffs predecessors/vendors to the partible property is not clear, the suit for simple partition is not maintainable without declaration of title.
Ibrahim Alt Vs Alhaj Md. Nazim Vddin Akhter & Ors 21 BLT (HCD) 276.
Section-4
The very purpose of Section 4 is to protect and preserve the sentiment of the co-sharers and attachment to their ancestral property and also preserve the privacy of the members of the undivided family.
Sreemati Sobita Rani Bonik Vs Sree Gouranga Prasad Acharjee & Ors 17 BLT (HCD) 470.
Section-4 read with Code of Civil Procedure, 1908 Order-9 rule-9(1) read with Limitation Act, 1905
Article -120
It is an admitted legal position that there is no limitation for filing a suit for partition and unless there is a total ouster of the right of a co-sharer from the ejmali property he shall be deemed to be in ejmali possession of the properties sought to be partitioned, if not partitioned earlier by metes and bounds. It need not be discussed by wasting so many pages that the cause of action for filing a suit for partition arises when the other co-sharer or co-sharers refuse the plaintiff to give his due share from the ejmali property. And the cause of action for filing a suit for partition being continuing and recurring it shall continue unless the other co-sharers give the plaintiff his due share partitioning the suit land by metes and bounds.
Hormuz Sikder & Ors Vs Ayub All Sikder & Ors 17 BLT (HCD) 01.
Section 4— Legislative intent behind making the provisions of section 4—Mores of the people and co-sharers’ attachment to their ancestral house and their anxiety to preserve purdah and privacy of the members of the undivided dwelling house taken into consideration. Expression “a dwelling house belonging to an undivided family” is to be liberally construed—A co-sharer’s prayer to buy up a stranger-purchaser may not be refused on technical ground. There being no partition by metes and bounds by any previous arrangement the impartible character of the suit properly remained undisturbed when the suit was filed—Plaintiffs claim is sustainable. There is no time limit for filing an application under section 4 of the Partition Act. The claims of the parties in a case are to be determined with reference to their respective position existing at the time of the filing of the suit. When an applicant’s prayer is allowed under section 4 of the Partition Act, it involves a kind of forced sale for the stranger-purchaser. The Court would in equity determine the valuation of the transferred share on the date of the filing of the application for permission to purchase the share of the stranger-purchaser. Sayesta Bibi and others vs Juma Sha and others 42 DLR (AD) 53.
Section 4— Suit for partition filed by the defendant Nos. 1 and 3 who are appellants in this appeal by leave—Suit decreed in preliminary form subject to payment of ad valorem Court fee by the trial Court—The High Court Division modified the decree of the trial Court by holding that the plaintiff does get saham of 1062—1l2 acre of land out of a schedule property on partition by metes and bounds—Question arose as to whether the High Court Division has committed substantial error of law in failing to direct to identify and demarcate. 2125 acre of CS plot No 17 in order to effect partition of the suitland. Held : The demarcation of the plaintiff’s share out of SA plot No. 1162 will be done by the Advocate Commissioner having regard to all principles of partition and the defendants can take objection, if any, before the decree is made final. Waliullah and another vs Abdul Wahab and others 42 DLR (AD) 55.
Section 4— The concept of dwelling house had received a liberal construction (Ref. AIR 1960 Cal 467). The terms “house” or “dwelling house” are ambiguous terms and for the purpose of section 4 of the Partition Act, must be liberally construed. High Court Division exceeded the jurisdiction in setting aside the decree. Sree Jugal Kishori Sarker vs Azizur Rahman 40 DLR (AD) 150.
Section 4— The purpose of section 4 is to see that a transferee outsider does not force his way into a dwelling house in which other members of the transferor’s family have right to live. Once the partition decree is made in preliminary form, the rest is for the Commissioner. But the Court at that stage is not concerned as to what direction should be given to the Commissioner for completing the partition. The Court can only give a limited direction after perusing the Commissioner’s report as to which plot is to be partitioned. Sree Jugal Kishori Sarker vs Azizur Rahman 40 DLR (AD) 150.
Section 4— The expression a dwelling house belonging to an undivided family is to be liberally construed. Adjacent buildings, gardens, courtyard, orchard and all that is necessary for the convenient occupation of the house is a part of the dwelling house. Amena Khatun and ors vs Md Afsaruddin being dead his heirs 1 (ka) Maleka Khatun and ors 50 DLR 156.
Section 4— The stranger purchaser who is not acceptable to other members of the family can not come into the undivided dwelling house and possess it forcibly and section 4 of the Partition Act does not permit it. Amena Khatun and ors vs Md Afsaruddin being dead his heirs 1 (ka) Maleka Khatun and ors 50 DLR 156.
Section 4— The object of this legislation is to preserve the sanctity of an undivided dwelling house against the intrusion of a stranger on the basis of purchase of it portion of such a dwelling house from a co—sharer or some of the co—sharers. Protima Sen and others vs Chitra Rani Dey and another 52 DLR 218.
Section 4— In order to· get the benefit of section 4, it is not necessary that a person must live in the family dwelling house. It is not residence or occupation but ownership of the dwelling house that entitles a person to apply under section 4 of the Act. Noorjahan Akhter vs A Motaleb & ors 53 DLR 256.
Section 4— The main purpose behind enacting section 4 is to protect and preserve the co—sharer’s sentiment and attachment to their ancestral house and also to preserve pardah and privacy of the members and inmates of the undivided dwelling—house. It is further held in this case that a co—sharer’s prayer to buy up a stranger—purchaser may not be refused on technical ground. Noorjahan Akhter vs A Motaleb & ors 53 DLR 256.
Section 4— ‘Undivided family’ means simply a family not divided qua the dwelling house; in other words, a family which owns a dwelling house and has not divided it. The essence of the matter is that the house itself should be undivided amongst the members of the family who are its owners. The emphasis is really on the house which imparts to the family its character of an undivided family. Haripada Saha vs Md Shamsuddin Quraishi and others 54 DLR 606. PARTITION ACT, 1893 Partition Act, 1893
Section—4 If an application under Section 4 of the Partition Act is filed to buy-out a stranger purchaser after an inordinate delay from the date of purchase, then the applicant himself may suffer. When an applicant’s prayer is allowed under Section 4 of the Partition Act, it involves a kind of forced sale for the stranger-purchaser. And hence, the Court would, in equity, determine the valuation of the transferred share on the date of filing of the application for permission to purchase the share of the stranger-purchaser Sayesta Bibi and others Vs. Juma Sha and others, 13 BLD (AD) 168. Ref: Md. Tazammul Hossain Vs. Purni Agarwalini, 10 DLR. 318; Md. Magdu Bhuiyan Vs. Jabban Huq, 11 DLR. 355; Md. Habibullah Patwari Vs. Pran Ballav Bhakta & others, 9 DLR 119; Sree Jugol Kishori Sarker Vs. Azizur Rahman & ors., 40 DLR (AD) 150 Cited.
Section—4 The object of section 4 of the Act is to enable the members of the undivided family to buy out an outsider who is a transferee from one of the co-sharers. In order to get the benefit of section 4, it is not necessary that a person must live in the family dwelling house. Because it is not the residence or occupation but the ownership of the dwelling house that entitles a person to apply under section 4 of the Act. Noorjahan Akhter Vs A Motaleb & ors., 21 BLD (HCD) 130. Ref: AIR 1928 Calcutta 539; I.L.R. 1923 (Bom) 73; 1ODLR(1958)3 18—Cited.
Section—4 The main purpose behind enacting section 4 is to protect and preserve the co-sharers’ sentiment and attachment to their ancestral house and also to preserve purdah and privacy of the members and inmates of the undivided dwelling house. Noorjahan Akhter Vs A Motaleb & ors., 21 BLD (HCD) 130. Ref: Sayesta Bibi and ors. Vs. Juma Sha and ors. 42 DLR(AD)53—relied.
Section—4 Application under section 4 of the Act can be invoked at any stage of the proceeding be. for the preliminary decree. Noorjahan Akhter Vs A Motaleb & ors., 21 BLD (HCD) 130. Ref: AIR (1940) Romgoon 53; AIR (1953) Patna 344; 10 DLR (1958)3 18; 7 DLR (Dhaka)945–Cited.
Section—4 The word ‘family’ has not been defined in the Partition Act. The superior courts of the sub-continent area of the consistent view that the word should be liberally interpreted. In order to be a member of the family, there must be a blood relationship. Section 4 makes a distinction between members of a family undivided qua the property under partition and transferees who are not members of such family. The words ‘such family’ in section 4 do not mean the ‘family’ already referred to in the section without the qualification ‘undivided’. A transferee who is a descendant from a common ancestor of himself and the joint family cannot merely for that reason be said to be a member of ‘such family’. Where it appears from the evidence that co-sharers were not agnates or cognates, they never lived together nor messed together, but were merely brought close by marriage which did not integrate their families but helped continue their separate identities, it cannot be held that there was any common bond or cementing factor bringing them within the fold of an undivided : family. A house which has not actually been used by an undivided family for a number of years is not a dwelling house. The expression ‘dwelling house belonging to an undivided family’ refers to a family dwelling house. It does not mean any house or building for human dwelling belonging to an undivided family. A house which is in the occupation of tenants cannot be said to be a family dwelling house. Haripada Saha v. Md. Shamsuddin Quraishi and others, 22 BLD (HCD) 16. Ref: AIR 1941 Patna4l9O;IC(1940) 117; 88C WN147; AIR 1953(Pat) 344; AIR 1950 (Cal)111; Cases cited but not relied on : 30 Indian Cases 936; 97 Indian Cases 416; AIR 1963(Cal)161; 58 CU 1974.
Allotment of a Share in respect bow of non contested defendant
As defendant no. 17 never contested the suit nor prayer for any share, her entitlement in the joint suit land could not be decided. Consequently, she did not get any share declared in the joint property in the preliminary decree. So the order of the appellate Court for allotment of a share to her and! or other defendants beyond the terms of preliminary decree is wholly Misconceive and baseless and arbitrary. A. Ali Sheikh & Anr Vs. K. Ali Sheikh & Ors. 11 BLT (HCD)-444
Whether in a Suit for Simple Partition the court is debarred to decide question of title or genuineness of a document, incidentally When a suit is based on joint ownership and enjoyment, a co-sheerer in possession is always entitled to seek partition simplicitor without seeking any declaration of his title. In deciding such suit, questions of title and nature of particular transaction may come up for decision, incidentally and need to be decided as incidental to adjudication of the shares of the co-owners. Birendra Nath Mondal & Ors Vs. Dulal Chandra Mondal & Ors 13BLT (HCD)10
Section-4
(a) “Dwelling house” co-sharer’s attachment to ancestral house intention of the legislators to make the provisions of S. 4 of the Partition Act After considering the modes of our people, the co-sharer’s attachment to their ancestral house and their anxiety to preserve the purdah and privacy of the members and inmates of the undivided dwelling house, the legislators made the provisions of section 4 of the Partition Act. The expression a dwelling house belonging to an undivided family is to be liberally construed. We have done so in Sree Jugal Kishori Sarker Vs. Azizur Rahman & Ors. 40 DLR(AD) 150.
A co-sharer’s prayer to buy up a stranger-purchaser may not be refused on a technical ground. Syesta Bibi and Other’s Vs. Juma Shah and Other’s 1BLT (AD)-34
(b) There is no time limit for filing an application under section 4 of the Partition Act The appellate Court’s finding that “That suit land is no doubt a homestead, but is not a dwelling house of an undivided family” is utterly Misconceived. In the suit land an undivided dwelling house is situated. The defendant himself claimed to be residing in a portion there. The suit property never lost its character of an undivided homestead because there had admittedly been not partition by metes and bounds by any previous arrangement. The impartible character of the suit property remained undisturbed when the suit was filed in 1962. There is no time limit for filing an application under section 4 of the Partition Act. In the instant case, the plaintiffs claim cannot be called sale. Syesta Bibi and Other’s Vs. Juma Shah and Ors. 1BLT (AD)-34
(c) To buy-out a stranger purchaser-Inordinate delay in filing application under S-4 of Partition Act from the date of purchase consequences— What involves a kind of forced sale for the stranger purchaser If an application under section 4 of the Partition Act is filed to buy out a stranger purchaser after an inordinate delay from the date of the purchase, then the applicant himself may suffer. When an applicant’s prayer is allowed under section 4 of the Partition Act, it involves a kind of forced sale for the stranger purchaser. And hence, the court would, in equity, determine the valuation of the transferred share on the date of the filing of the application for permission to purchase the share of the stranger purchaser. Syesta Bibi and Others Vs. Juma Shah and Others. 1BLT (AD)-34
Section-4
Partition suit by transferee of share in dwelling house —the plaintiff petitioner is in possession of .5612 acres of land in ejmali by registered kabala, filed the present partition suit —opposite party No. 1 as defendant No.1 contested the suit, contending inter alia that he has been possessing the suit land as cosharer and suit land being dwelling house that the defendant is ready to purchase the share of the plaintiff-petitioner. The learned trial court decreed the suit in part with direction that the ‘defendant may purchase .04 decimals of homestead having the dwelling hut and courtyard on it and the plaintiff will get .5212 decimals of land out of the jote — the lower appellate court reversing the judgment and decree of the trial court in the manner and on the finding that the plaintiff is a stranger in the suit land, if plaintiff is allotted shaham in the ejmali homestead and ejmali tank the members of the Hindu family cannot conveniently use the homestead and the tank which is a cartilage of their dwelling house, trial court ought to have allowed pre-emption in favour of the contesting defendant No. 1 in full—Held: It appears that the appellate court while reversing arrived at its own independent findings on the issues involved in the case rule is therefore discharged. Hafizuddin Bepari Vs. Nepal Chandra Das & Ors. 4BLT (HCD)-109
Section-4
Delivery of possession by the Advocate Commissioner The Advocate Commissioner while delivering possession to the parties in a partition suit shall abide by the final decree and not by the preliminary decree. Md. Shahjalal & Ors Vs. Sultan Gazi & Ors. 6BLT (AD)-233
Section-4
Applicability—The Kha schedule property may be a dwelling house but it was not under direct occupation of the plaintiff and defendant No. 1 and the plaintiff was not residing in that house when the suit for partition was filed and there is no evidence that the undivided family occupied Kha schedule property—we hold that Section 4 of the Partition Act has no manner of application in the present case. Bina Roy Chowdhury Vs. Amullya Roy Chowdhury & Ors. 7BLT (HCD)-80
Exceptions;
When all property need not be included
The general rule that a partition suit should embrace all the joint properties of the parties concerned is indeed a rule of convenience. If properties are left out in a partition suit it brooks further litigation. It is true that this rule is relaxable. But there are specific situations calling for relaxation. They are generally (a) where different portions of the property lie in different jurisdictions, or (b) when some portion of the property is at the time incapable of partition, or (c) when the property from its nature is impartible, or (d) when property is held jointly with strangers who cannot be joined as parties to a general suit for partition, or (e) where cotenants, by mutual agreement, decide to make partition of a part of the joint property retaining the rest in common. Nurul Afsar Vs Rafiqul Ahmed 7BLT (AD)-335
Section-4
Decrees never put into execution within 12 years. Decree in partition suit of I 1 6, appears that the decree in Title Suit No. 167 of l9I was never put into execution within 12 years and as such the decree holder plaintiff including plaintiff nos. 4 and 5 (Safunnessa and Jahra Bibi) could not get into possession in the decreetal land particularly in ‘Cha and Tha’ of the schedule upon evicting the defendants including the sons of Moinuddin Kochwan, the defendant no. 21, the substituted heirs of defendant no. 21-Kha Abdus Sattar, the predecessor-in-interest of defendant nos. 6-9 and Abdul Halim, the substituted defendant no. 21-Ga, the predecessor-in-interest of defendant nos. 1-5, the transferors of the defendant nos. 10-17. Sahani Bibi & Ors. Vs. Nurul Islam & Ors 12 BLT (AD)-11
Section—4
It is proved beyond doubt the homestead upon the plot No.2523 and the land of plot No.2525 are the part and parcel of the ancestral homestead of the plaintiff and as well as of the defendant No.2 and they’re having been no partition by metes and bounds and the defendant No.1 being an outsider and being not a member of the plaintiffs family, the land purchased by him comes within the Mischief of section 4 of the Partition Act. Surajit Kumar Das & Ors. Vs. Jahanara Hossain & Ors 14 BLT (HCD)383
Section-4 read with Specific Relief Act, 1877 Section-42
A complicated question of title is involved in the suit which cannot be settled in a simple suit for partition without claiming declaration of title. Jotimoy Datta & Ors Vs Mritunjoy Datta @ Palash & Ors 16 BLT (HCD)446
Civil Justice in respect of Partition
In a partition suit the rights of the parties are finally determined in the preliminary decree by which specific sahams are allotted. The final decree is just a follow-up of the preliminary decree whereby actual partition of the ejmali property is effected through the Court in execution of the preliminary decree. In effecting partition by metes and bounds the existing possession of the parties is usually maintained as for practicable and in so far it is not inconsistent with the decree. Possession or no possession in a particular plot or plots of an ejmali property cannot therefore, be a ground to refuse a decree for partition once the plaintiffs title and possession is found in any portion of the suit property. Md. Azimuddin Talukder & Ors. Vs. Md. Abdul Mannan Talukder & Ors. 7BLT (HCD)-43
Principle—Partition Suit
The cause of action for a partition suit being recurring one the dismissal of a partition suit for default does not bar again a suit for partition. Abdul Jabbar Vs Sultan Mia & Ors. 2BLT (HCD)-139
Patent and Designs Act, 1911 Section-51A(1)(a)
When a design is registered prima facie it is presumed to be new and original. But entry in the register is not conclusive thereof and the presumption is rebuttable one. We have examined the sample, compared them and looked at their design as a whole and found that the design of the respondent is nothing but an imitation of the petitioner’s design. So, the design of respondent No.1 is not a new or original one. The respondent’s design is, therefore, liable to be called on all the grounds stated in Section 51A(1)(a) of the Act. Mr. Yar Mohammad Vs. Mr. Satadal Dhali 9 BLT(HCD)-31
Section-51A
Has no locus standi-in the instant case the petitioner has utterly failed to show how he is an interested person in respect of a design relating to cycle and rickshaw parts inasmuch as he has failed to bring home his claim that he is a dealer of those parts or that at any point of time he manufactured them. In that view of the matter it appears that he has failed to fulfill the condition precedent for filing an application under section 51 of the Act. Moreover, on a perusal of the materials on record it appears that it has been finally established that the registered design bearing No.01010, dated 12.8.92 is a new and original one-application is rejected. Md. Shahidullah Vs. Year Mohammad. 9BLT(HCD)-132
Section-51A(1)
It appears that the design of the respondent No.1 substantially resembles with the design of the petitioner, which is apparent in the neck eye. Therefore, it appears that the respondent No.1 by suppressing the fact that a similar design had already been registered as back as in 1994 obtained the registration of their design by committing a fraud upon the Controller of Designs. It further appears that the respondent No.2 also failed to discharge the legal duties cast upon him and after proper scrutiny failed to discover the fact that the design applied for already registered. Thus, the registration given by the respondent No.2 in favour of the respondent No.1 being registration No.01638 dated 14.5.96 in class-I is neither a new nor an original design and it has previously been published in Bangladesh and also registered by the petitioner in 1994. Thus the registered design No.01638 dated 14.5.96 is class-I is liable to be cancelled. Golam Rabbani Chowdhury Vs. Md. Izzat Ali Khan & Anr. 9 BLT(HCD)-170.
Section-4(a) ‘Dwelling house’-co-sharer’s attachment to ancestral house intention of the legislators to make the provisions of S. 4 of the Partition Act After considering the modes of our people, the co-sharers attachment to their ancestral house and their anxiety to preserve the purdah and privacy of the members and inmates of the undivided dwelling house, the legislators made the provisions of section 4 of the Partition Act. The expression a dwelling house belonging to an undivided family is to be liberally construed. We have done so in Sree Jugal Kishori Sarker Vs. Azizur Rahman & Ors. 40 DLR (AD) 150.
A co-sharer’s prayer to buy up a stranger-purchaser may not be refused on a technical ground. [Para-10]
(b) There is no time limit for filing an application under section 4 of the Partition Act - The appellate Court’s finding that “That suit land is no doubt a homestead, but is not a dwelling house of an undivided family” is utterly misconceived. In the suit land an undivided dwelling house is situated. The defendant himself claimed to be residing in a portion there. The suit property never lost its character of an undivided homestead because there had admittedly been not partition by metes and bounds by any previous arrangement. The impartible character of the suit property remained undisturbed when the suit was filed in 1962. There is no time limit for filing an application under section 4 of the Partition Act. In the instant case, the plaintiffs claim cannot be called sale, [Para-11]
(c) To buy-out a stranger purchaser— Inordinate delay in filing application under S-4 of Partition Act from the date of purchase consequences—What involves a kind of forced sale for the stranger purchaser If an application under section 4 of the Partition Act is filed to buy out a stranger purchaser after an inordinate delay from the date of the purchase, then the applicant himself may suffer. When an applicant’s prayer is allowed under section 4 of the Partition Act, it involves a kind of forced sale for the stranger purchaser. And hence, the court would, in equity, determine the valuation of the transferred share on the date of the filing of the application for permission to purchase the share of the stranger purchaser. [Para- 11] Syesta Bibi and Other’s Vs. Juma Shah and Other’s 1 BLT (AD)-34
Section - 4
Partition suit by transferee of share in dwelling house — the plaintiff petitioner is in possession of .5612 acres of land in ejmali by registered kabala, filed the present partition suit — opposite party No. 1 as defendant No. 1 contested the suit, contending inter alia that he has been possessing the suit land as co-sharer and suit land being dwelling house that the defendant is ready to purchase the share of the plaintiff-petitioner. The learned trial court decreed the suit in part with direction that the defendant may purchase .04 decimals of homestead having the dwelling hut and courtyard on it and the plaintiff will get .5212 decimals of land out of the jote —the lower appellate court reversing the judgment and decree of the trial court in the manner and on the finding that the plaintiff is a stranger in the suit land, if plaintiff is allotted shaham in the ejmali homestead and ejmali tank the members of the Hindu family cannot conveniently use the homestead and the tank which is a cartilage of their dwelling house, trial court ought to have allowed pre-emption in favour of the contesting defendant No. 1 in full—Held : It appears that the appellate court while reversing arrived at its own independent findings on the issues involved in the case -- rule is therefore discharged. [Paras- 15 & 16] Hafizuddin Bepari Vs. Nepal Chandra Das & Ors. 4 BLT (HCD)- 109
Section - 4
Delivery of possession by the Advocate Commissioner
The Advocate Commissioner while delivering possession to the parties in a partition suit shall abide by the final decree and not by the preliminary decree. [Para-6] Md. Shahjalal & Ors Vs. Sultan Gazi & Ors 6BLT (AD)-233
Section-4
Applicability—The Kha schedule property may be a dwelling house but it was not under direct occupation of the plaintiff and defendant No. 1 and the plaintiff was not residing in that house when the suit for partition was filed and there is no evidence that the undivided family occupied Kha schedule property—we hold that Section 4 of the Partition Act has no manner of application in the present case. [Para-12] Bina Roy Chowdhury Vs. Amullya Roy Chowdhury & Ors. 7 BLT (HCD)-80
Exceptions: When all property need not be included
The general rule that a partition suit should embrace all the joint properties Of the parties concerned is indeed a rule of convenience. If properties are left out in a partition suit it brooks further litigation. It is true that this rule is relaxable. But there are specific situations calling for relaxation. They are generally (a) where different portions of the property lie in different jurisdictions, or (b) when some portion of the property is at the time incapable of partition, or (c) when the property from its nature is impartible, or (d) when property is held jointly with strangers who cannot be joined as parties to a general suit for partition, or (e) where co-tenants, by mutual agreement, decide to make partition of a part of the joint property retaining the rest in common. [Para-7] Nurul Afsar Vs. Rafiqul Ahmed 7 BLT (AD)-335
Civil Justice in respect of Partition
In a partition suit the rights of the parties are finally determined in the preliminary decree by which specific sahams are allotted. The final decree is lust a follow-up of the preliminary decree whereby actual partition of the ejmali property is effected through the Court in execution of the preliminary decree. In effecting partition by metes and bounds the existing possession of the parties is usually maintained as for practicable and in so far it is not inconsistent with the decree. Possession or no possession in a particular plot or plots of an ejmali property cannot therefore, be a ground to refuse a decree for partition once the plaintiffs title and possession is found in any portion of the suit property. [Para-6J Md. Azirnuddin Talukder & Ors. Vs. Md. Abdul Mannan Talukder & Ors. 7 BLT (HCD)-43
Principle—Partition Suit
The cause of action for a partition suit being recurring one the dismissal of a partition suit for default does not bar again a suit for partition. Para- 10 Abdul Jabbar Vs Sultan Mia & Ors 2BLT (HCD)-139.
Code of Civil Procedure (V of 1908)
Order XVI, rules 14(3)
The direction to submit stamp and the drawing and signing of the final decree are mere ministerial act to be performed by the court staff and that cannot have any bearing to make the decree final. The provisions of sub-rule (3) of rule 14 of Order XXVI, of the Code had made it obligatory upon the court confirms or varied the report. [73 DLR 544]
Code of Civil Procedure (V of 1908)
Section 97
The object of section 97 of the Code is that questions which had been urged by the parties and decided by the court at the stage of preliminary decree will not be open for re- agitation at the stage of the preparation of final decree and would be taken, as finally decided if no appeal had been preferred against the preliminary decree. In the present case as has been noticed that admittedly the defendant- appellant did not prefer any appeal against the preliminary decree, the correctness of the preliminary decree cannot now be questioned by the defendant in view of the clear mandate of section 97 of the Code. In the event of failure to prefer an appeal against a preliminary decree, the preliminary decree is deemed to have attained finality. [73 DLR 544]
Partition Act (IV of 1893) Section 4
The basic pre-requisites for an application under section 4 for exercising the right of bay up is that the property which is the subject matter of the application must be a dwelling house of an undivided family and the transferee must sue for partition. ......(18)
Transfer of Property Act (IV of 1882)
Sections 4 and 44
Section 44 is to maintain the integrity of the family dwelling-house which provides that the transferee of a dwelling house, if he/she is not a member of that family, gets no right to joint possession or common enjoyment of the house. The provision adequately protects the family members against intrusion by an outsider into the dwelling house. The purchaser, though stranger, has certainly his title to the undivided share of the joint property by reason of his purchase but in enforcing his rights he is fettered to this extent that he cannot claim any joint possession in the undivided family dwelling house. The purchaser has his remedy and he can sue for partition by metes and bounds and after such partition possess his own share, unless he is pre-empted under section 4 of the Act. The only manner in which an outsider can get possession is to sue for possession and claim separation of his share. In that case section 4 of the Act comes into play. [72 DLR (AD) (2020) 66]
Editors’ Note:
One Rabindra Kumar Dey was the owner and possessor of 4.81 decimals of land. He died in 1978 leaving behind his wife, two sons and four daughters. One of his sons, namely, Prodip died and the other son Probir converted to Islam before Rabindra’s wife Arati Bala Dey filed the instant suit for partition claiming saham. During the pendency of the suit plaintiff died and Rabindra’s unmarried daughter Shipra Rani was substituted as plaintiff. Question arose as per Daya Bhaga school of law whether the plaintiff Arati Bala Dey inherited from her deceased husband; whether the substituted plaintiff Sipra Rani Dey is entitled to inherit from her deceased father and mother; and whether the plaintiffs are entitled to a decree for partition as prayed for? The High Court Division analyzing the relevant laws, particularly, the Hindu Women’s Rights to Property Act 1937, Caste Disability Removal Act, 1850 and the Bangladesh Laws (Revision and Declaration) Act, 1973 held that when a Hindu governed by the Daya Bagha School of Hindu Law dies intestate leaving any property, his widow becomes complete owner and co-sharer of the property during her life time and she is entitled to be in the same position as a son in the matter of claiming partition. The Court further held that after conversion to the faith of Islam son Probir has lost his right to his father’s property and, as such, the substituted plaintiff Sipra Rani Dey, the unmarried daughter of Rabindra Kumar Dey, is entitled to get the property on partition.
Section 3 of the Hindu Women’s Rights to Property Act, 1937: Let us now consider whether a Hindu widow is entitled to get the same share as a son. In this connection reference may be made to section 3 of the Hindu Women’s Rights to Property Act, 1937 (XVIII of 1937). Sub section (1) of section 3 of the said Act says that when a Hindu governed by the Daya Bagha School of Hindu Law dies intestate leaving any property dies, his widow, shall, subject to the provisions of sub-section(3), be entitled to the same share as a sons. Sub-section (3) of section 3 of the said Act further says that any interest devolving on a Hindu widow shall be the limited interest known as a Hindu Woman’s estate, but she shall have the same right of claiming partition as a male owner. Further sub-section (2) of section 1 of the said Act stipulates that it extends to the whole of Bangladesh. Thus from reading of the aforesaid provisions of sub[1]sections (1) and (3) of the Hindu Women’s Rights to Property Act, 1937 it is clear that the widow during the period of her life time she became complete owner and co-sharer of the property and this sub-section 3(3) has the effect of putting the widow in the same position as a son in the matter of claiming partition. (Para 18 and 19)
Hindu law does not apply where a person enters into a religious order renouncing all worldly affairs, his action is tantamount to Civil death, and it excludes him altogether from inheritance and from a share on partition. (Para 22)
It is pertinent to note that Hindu law is religious law, the right to property is made by that law dependent upon the observance of the tenants of that faith. Consequently, a lapse from orthodox practices of Hinduism would under that law entail forfeiture of the caste and all rights to property and inheritance. Renouncement of religion has a disability, but after the passing of the Caste Disability Removal Act, 1850 (Act XXI of 1950), change of religion is no ground of exclusion of inheritance. But after the repealing of the Act XXI of 1850 by the Bangladesh Laws (Revision and Declaration Act, 1973 (Act No. VIII of 1973) the persons converts into another religion are now forfeited from the inheritance and from the joint family property and fathers property. (Para 22) [17 SCOB [2023] HCD 154]
Partition Suit, it's scope and maintainability and onus of proof
In a partition suit for immovable proper- ty all the incidental questing of title, however, complicated it may be. can be decided and disposed of finally, onus of proof is spirited and spitted up not fixed like criminal cases. Cinmoy Chowdhury Vs Sree Mridul Chowdhuiy (Civil) J 1ADC 124
Partition Matter
Partition- The Appellate Division is of the view that the High Court Division rightly found that the suit land is not an undivided dwelling house rather it is admit tedly a commercial place on which petitioners and other co-sharers have been conducting their business treating the suit land as commercial premises. Since the suit land is not a undivided dwelling house but a commercial place an application under section 4 of the Partition Act cannot be invoked to buy out the share of a stranger purchaser in the suit land. Hossain Shahid -VS- Abdul Wahab & others, [1 LM (AD) 394]
Partition- The High Court Division did not decide the issues regarding defect of party and hotchpot. But relied upon decisions of this Division to the effect that the findings of the appellate Court as the last court of fact are binding on the revisional Court. However, the High Court Division did not consider the cited decisions of this Division where it has been held that a suit for partition will not be defeated for reason of defect of party and hotchpot. On the point of the quantum of land for which saham was claimed, the High Court Division followed the appellate Court's reasoning and held that the plaintiffs could not get saham for 44 decimals in respect of share of the plaintiffs' predecessor.
We find that the decisions of the appellate Court and the High Court Division are based on misreading of the schedule to the concerned deed of sale. The issues relating to defect of party and hotchpot are covered by the decisions of this Division. We need not revisit those here. We find merit in the appeal which is allowed. The impugned judgement and order is set aside. The judgement and decree of the trial Court is restored. ... Mohammad Sayed =VS= Majuma Begum, [10 LM (AD) 109]
Partition- Without amicable partition established amount the co-sharers the suit is not maintainable without the prayer for partition- The story of amicable partition as claimed by the parties has not been established and that the parties claimed their shares from admitted co- sharers of plot and holding, we are of the view, that the instant suit was not maintainable without the prayer for partition. The parties may effect partition of their lands by bringing properly instituted suit....Ali Amzad Khan =VS= Md. Titan Khan, [10 LM (AD) 153]
Partition Suit- Notice The Court of facts, on considering the evidence on record, particularly, considering the Vokalatnama executed by the defendant No.46-respondent No.1 and her prayer for time for filing written statement, came to the conclusion that the notice of the suit was duly served upon her. Said finding of the fact has not been reversed by the High Court Division.
Without reversing the finding as to the service of notice upon the defendant No.46, is erroneous, particularly, when the defendant No.46 herself appeared in the suit filing vokalatnama. Considering the aforesaid facts and circumstances, we find substance in the appeal. The judgment and order passed by the High Court Division in Civil Revision No.4713 of 1998 is hereby set aside. ...Rowshan Akhtar Rahman(Md.) VS Most. Shilu Begum, [10 LM (AD) 179]
Partition suit- The appellate Court, being the last court of facts- The appellate Court observed that on assessment of the evidence of the witnesses, it does not appear that the plaintiff was ill at the time of execution and registration of the disputed partition deed. It was further observed that the plaintiff admitting the deed of partition transferred land which he had acquired by dint of the deed of partition to various people and copies of those deeds were produced by the defendants.
Views of the appellate Court, being the last court of facts, were rightly upheld by the High Court Division in its revisional jurisdiction. Clearly, the petitioner having accepted the deed of partition sold off some of his land which had devolved upon him through the partition. The partition was thus acted upon as evidenced by the action of the petitioner himself. The petitioner, therefore, cannot now deny the legality of the deed of partition. We do not find any error in the impugned judgement and order of the High Court Division. ...Ali Akber(Md.) =VS Shahanara Khatun, [10 LM (AD) 702]
Partition on determination of title and also for recovery of khas possession- Concurrent findings of fact arrived by the Courts below interference by the High Court are set-aside Considered the judgments of all the Courts below, we are of the view that the High Court Division illegally interfered with the concurrent findings of fact arrived at by the Courts below although we do not find any misreading or non consideration of evidence warranting interference by the High Court Division. We find substance in this appeal. Accordingly. this appeal is allowed and the impugned judgments and decrees delivered by the trial Court and the appellate Court are hereby restored. Sukendra Bikas Das =VS= Anil Baran Das, [5 LM (AD) 327]
Partition with declaration of Title Suit Remand the Court for trial The learned Senior Assistant Judge, Feni Sadar, Feni after holding trial, decreed the suit in the preliminary form in favour of the plaintiffs by his judgement and decree passed on 13.10.2002. Against the said judgement and decree of the trial Court, the defendants as appellants preferred Title Appeal No.118 of 2002 before the learned District Judge, Feni. Subsequently the said appeal was heard by the learned Joint District Judge, 2nd Court, Feni who after hearing the same by his judgement and decree dated 28.05.2007 allowed the appeal and sent the suit back to the trial Court for retrial.
Being aggrieved by and dissatisfied with the aforesaid judgement and order of remand, defendant Nos.1-3 filed Civil Revision No.3726 of 2007 before the High Court Division whereupon Rule was issued. A Single Bench, by the impugned judgement and order, made the Rule absolute, set aside the order of remand while upholding that part of the judgement and decree of the appellate Court setting aside the judgement and decree of the trial Court, thereby dismissing the suit.
In view of the above facts and circumstances of the case, the judgement and order of the High Court Division as well as the judgement and decree of the appellate Court are hereby set aside. The case is remanded to the appellate Court only for the purpose of allowing the parties to prove their respective khatians by calling the relevant record volumes as well as for the appellate Court to give its finding on the commission report which is on record. The appellate Court is directed to dispose of the appeal within 4 (four) months from the date of receipt of this judgement.... Abdul Gofran -VS- Hafezer Rahman, [6 LM (AD) 212]
Any question arises over possession or dispossession then the parties can file a suit for partition- It is by now an established principle of law that in a suit for permanent injunction or where there is a prayer for recovery of possession, there has to be specificity about the land claimed by the plaintiffs. [see Moharram Ali and another Vs. Mohammad Madhu Mia and others, 41DLR(AD)92].
The instant case, the defendants appear to have purchased land from a different Khatian to that claimed by the plaintiffs. There appears to be no conflict of claim. If and when any question arises over possession or dispossession then the parties can file a suit for partition.
We find that the High Court Division erred in dismissing the suit upon reversing concurrent findings of the Courts below. Accordingly the appeal is allowed, without, any order as to costs. The impugned judgement and order is hereby set aside. ... Sufala Rani VS= Balai Mondal, [7 LM (AD) 20]
Partition Suit- The Advocate Commissioner prepared his report after actual physical measurement of the land on the basis of possession and title. The finding of the Courts below the Advocate Commissioner rightly allocated saham to the parties. ... Monowara Begum (Most.) =VS= Wahed Ali(Md.), [8 LM (AD) 320]
A co-sharer in possession maintain her possession until partition- It is well settled that a co-sharer in possession can maintain her possession until partition. A co-sharer in exclusive possession of land, even if, in excess of his/her actual share, cannot be dispossessed otherwise than by partition and hence a co- sharer in exclusive possession can bring a suit for permanent injunction against the other co-sharers-who threaten him/her with dispossession.
The High Court Division was not justified at all to send back the suit on remand for fresh trial with the direction to convert the suit for permanent injunction into a suit for partition. In this suit the plaintiff-a co- sharer-has proved her exclusive possession in her claimed land and she is entitled to keep this possession until partition by metes and bounds. If necessary, the defendants-co-sharers can bring a suit for partition, the plaintiff cannot be compelled to file a suit for partition. The impugned judgment and order of the High Court Division is set aide and those of the trial court and the appellate court below are affirmed. ... Noor Jahan Begum (Mst.) =VS-Giasuddin, [9 LM (AD) 82]
The High Court Division has erred in modifying the decree passed on concurrent findings of fact upon reassessing the evidence- The Appellate Division finds on calculation of the shares of the defendant in the suit land High Court Division accordingly decreed the suit. The Appellate Division has perused the said calculation and the appellant could not show any mistake or otherwise any defect in the said allottment of shares in allowing a separate saham in respect of 2.05 acres of land in favour of the plaintiffs instead of 3.485 acres of land as decreed by the Courts below allotting 16 annas share in suit land in favour of the plaintiff to the exclusion of the shares of defendants. Accordingly, the appeal is dismissed. .....Md. Yasin Khan & others =VS= Ayub Ali Khan & others, [1 LM (AD) 441]
The suit for partition is incompetent if all the co-sharers are not included as parties to the suit, as no effective decree can be passed in the absence of any one of them. It is true that under Order-I, Rule-9 of the Code of Civil Procedure, 1908, no suit shall be defeated by reason of miss-joinder and non-joinder of parties but there can be no doubt that if the parties who are not joined are not only proper but also nec- essary parties to it, the infirmity in the suit is bound to be fatal. .......(22)
Regarding hotch-pot the fundamental Rule is that a partition suit should embrace all the joint properties of the parties concerned in that suit. Violation of that rule will result in the multiplicity of litigation which all the parties and court must avoid and discourage. ....(26)
Kanchon Ali Khan vs. Ali Akbar Khan (Borhanuddin J) (Civil) 20 ADC 231