The High Court dismissed an appeal challenging a Title Appeal that held there was a partition between two brothers, barring the plaintiff's claim under Section 4 of the Partition Act to restrain a stranger purchaser from entering family land.
Disallowed the claim for permanent injunction and relief under Section 4 of the Partition Act.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HIGH COURT OF ORISSA: CUTTACK
S.A.No.181 of 1998
From the judgment and decree dated 6.3.1998 and 19.3.1998 respectively passed by Mr.N.N.Praharaj, learned Additional District Judge, Jajpur in T.A.No.27 of 1991/30 of 1966 reversing the judgment and decree dated 17.9.1991 and 5.10.1991 passed by the learned Munsif, Jajpur in T.S.No.223 of 1985.
| Natabar Naik | …. | Appellant |
|---|---|---|
| Vers | us | |
| Guru Charan Sahu | …. | Respondent |
| For Appellant | -- | Mr.N.K.Sahu, Advocate Mr.B.Swain, Advocate |
| For Respondent | -- | None |
J U D G M E N T
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of Hearing :26.4.2018 & Date of Judgment:05.5.2018
Dr.A.K.RATH, J. Plaintiff is the appellant against a reversing judgment in a suit for permanent injunction along with a prayer under Section 4 of the Partition Act.
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Sindhu died leaving behind two sons, namely, Nata, the plaintiff and Bata. A dwelling house stands over the suit land. The suit land is the undivided property of the plaintiff and Bata. The same had been recorded in the name of Siba in the current settlement record of right. The defendant threatened to enter upon the suit land on the premises that he has purchased the share of Bata. The defendant is a stranger to the family. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra.
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Title Appeal No.27 of 1991/30 of 1966 before the learned Additional District Judge, Jajpur. An application for additional evidence was filed to exhibit the certified copy of the sale deed executed between Nata and Bata. The certified copy of the sale deed was exhibited as Ext.D. Learned appellate court came to hold that there was severance of joint family status between the parties. After death of Sindhu in the year 1978, Bata left the ancestral home and stayed in the house of his father-in-law. In the year 1982, he sold the suit land to the defendant by means of a registered sale deed, Ext.B. Nata was not a party to the said deed. In the said sale deed, it is stated that after death of father, the entire property had been divided between two brothers. Thus, the plaintiff cannot re-agitate the matter by denying partition. Held so, it allowed the appeal.
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“A mere look at the aforesaid provision shows that for its applicability at any stage of the
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proceedings between the contesting parties, the following conditions must be satisfied:
(1) A co-owner having undivided share in the family dwelling house should effect transfer of his undivided interest therein;
(2) The transferee of such undivided interest of the co-owner should be an outsider or stranger to the family;
(3) Such transferee must sue for partition and separate possession of the undivided share transferred to him by the concerned co-owner;
(4) As against such a claim of the stranger transferee, any member of the family having undivided share in the dwelling house should put forward his claim of pre-emption by undertaking to buy out the share of such transferee; and
(5) While accepting such a claim for pre-emption by the existing co-owner of the dwelling house belonging to the undivided family, the court should make a valuation of the transferred share belonging to the stranger transferee and make the claimant co-owner pay the value of the share of the transferee so as to enable the claimant coowner to purchase by way of pre-emption the said transferred share of the stranger transferee in the dwelling house belonging to the undivided family so that the stranger transferee can have no more claim left for partition and separate possession of his share in the dwelling house and accordingly can be effectively denied entry in any part of such family dwelling house”.
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applicability of Sec. 4 as laid down by the aforesaid decision and also as expressly mentioned in the Section is that the stranger/transferee must sue for partition and separate possession of the undivided share transferred to him by the co-owner concerned. Before Sec. 4 of the Partition Act can be pressed in service by any of the other co-owners of the dwelling house, it has to be shown that the occasion had arisen for him to move under Sec.4 of the Act because of the stranger transferee himself moving for partition and separate possession of the share of the other coowner which he would have purchased. It was further held that if the ratio of Alekha Mantri (supra) is held to take the view that a stranger purchaser who does not move for partition of joint property against the remaining co-owners either as a plaintiff or even as a defendant in the partition suit claiming to be as good as the plaintiff nor even as a successor of the decree holder seeks execution of partition decree, can still be subjected to Sec.4 of the Partition Act proceedings, then the said view would directly conflict with the decision of this Court in Ghantesher Ghosh’s case (supra) and to that extent it must be treated to be overruled.
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brothers in respect of the properties including the homestead and suit schedule property.
..…………...………………..
Dr.A.K.Rath, J.
Orissa High Court, Cuttack, The 5th May, 2018/CRB
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2 issues framed by the court
Whether the lower appellate court's conclusion that there was a partition between the two brothers due to severance of joint status was correct?
Whether the plaintiff is entitled to relief under Section 4 of the Partition Act since there was a severance of joint family status between the brothers?
Colour shows how this judgement treated each authority
Udayanath Sahu v. Ratnakar Bej and othersDistinguished¶15
Udayanath Sahu v. Ratnakar Bej and others, AIR 1967 Orissa 139 · Who else cites this
Bhim Singh and another v. Ratnakar Singh and anotherDistinguished¶15
Bhim Singh and another v. Ratnakar Singh and another, 1970 (1) C.W.R. 183
Alekha Mantri v. Jagabandhu Mantri and othersFollowed¶24
Alekha Mantri v. Jagabandhu Mantri and others, AIR 1971 Orissa 127 · Who else cites this
Ghantesher Ghosh v. Madan Mohan Ghosh and othersFollowed¶25
Ghantesher Ghosh v. Madan Mohan Ghosh and others, AIR 1997 SC 471 · Who else cites this
Babulal v. Habibnoor Khan (Dead) by L.Rs. and othersFollowed¶34
Babulal v. Habibnoor Khan (Dead) by L.Rs. and others, AIR 2000 SC 2684 · Who else cites this
2 provisions across 2 enactments
Natabar Naik
Guru Charan Sahu
A.K. Rath
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
