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Showing contexts for: partition act in Bhagwati Lal And Ors. vs Bhorelal And Ors. on 1 March, 1974Matching Fragments
11. Now I turn to the cases of Calcutta High Court: In Satyabhama v. Jatindra Mohan. AIR 1929 Cal 269 the Court found that the respondents had applied for a share in the dwelling house and it was held that it would not be streching too much the language of the law to treat the respondents as plaintiffs within the meaning of Section 4, Partition Act. It was observed that this view is supported by the well-known principle that a party in a partition suit whether a plaintiff or a defendant is at the same time a plaintiff as well as a defendant, and that this dual capacity of a party in a partition suit does not preclude even the defendant who claims a share in the dwelling house from being treated as plaintiff for the purposes of Section 4 of the Act. It was further held that by their application, the respondents claimed share in the dwelling house and they may be treated as suing for partition of the dwelling house.
17. In Laxman v. Mt. Lahana Bai, AIR 1937 Nag 4, Stone, C. J., held that "where in the course of another suit the defendant applied to have a partition under the Partition Act, he is correctly regarded as having "sued" for partition within the meaning of Section 4." In coming to this conclusion he relied on the definition of the term 'to sue' in Stroud's Judicial Dictionary.
18. The only other High Court whose cases have been placed before me by learned Counsel for both the parties is Orissa.
28. In AIR 1950 Pat 317 while dealing with the question of court-fee payable on an appeal in respect of the prayer under Section 4 of the Act it was observed that the prayer simply amounted to asking for partition indicating the manner in which it should be made. The learned Judges observed as follows:--
"This provision (Section 2 of the Act) as also the provision in Section 4 appears to prescribe modes in which a partition can be made. In this aspect of the matter, it appears to us that the plaintiff, in asking for relief under Section 4, Partition Act, was doing no more than asking for partition and indicating the manner in which the partition should be made."
31. It, therefore, appears to me that though the ordinary method of partition is to direct a physical severance of the separate interest but the Partition Act envisages other methods of partition also in view of the exigencies of each case and an offer to purchase a co-owner's share or to sell one's own share to the co-owner is also a method of partition. In this view of the matter, I have come to the conclusion that in the facts and circumstances of the present case, it must be held that the appellants by making an offer to purchase the plaintiff's half share in the dwelling house for Rs. 5,000/- made a claim for partition. Consequently, judging from this angle also the appellants should be deemed to have asked for partition, and, therefore, too the condition "such transferee sues for partition" is fulfilled.