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1 - 7 of 7 (0.26 seconds)Gautam Paul vs Debi Rani Paul And Ors on 17 October, 2000
15. Learned counsel has also relied upon Gautam Paul's case cited supra. Of course, this decision is also relied upon by both the parties. What is noted in the said decision is, although a liberal interpretation has to be given, the interpretation cannot be one which gives a right which the Legislature did not clearly intend to confer. The legislature was aware that in a suit for partition a stranger who has purchased the share would have to be made a party; the legislature was aware that in a suit for partition, the parties are interchangeable; the legislature was aware that partition would result in a decree for partition and in most cases, a division by metes and bounds; the legislature was aware that on a actual division like all other co-sharers, the stranger would also get possession of his share. Yet the legislature did not provide the right for preemption to be exercised in a suit for partition. The legislature only provided for such right when the transferee sues for partition. The intention of the legislature is clear that there has to be initiation of proceedings or the making of a claim to the partition by a stranger outsider. This could be by way of initiating proceedings for partition and even claiming partition in execution. However, mere assertion of claim to a share without demanding separation and possession is not enough to give the co-sharer a right of preemption.
Srilekha Ghosh (Roy) & Anr vs Partha Sarathi Ghosh on 9 July, 2002
In the decision in Srilekha Ghosh's case cited supra relied upon by the respondent, the Apex Court has, referring to the decision in Babulal v. Habibnoar Khan , held that one of the basic conditions for applicability of Section 4 as laid down by the aforesaid decision and also as expressly mentioned in the section is that, stranger transferee must seek for partition and separate possession of the undivided share transferred to him by the co-owner concerned. It is stated further that it is true in the said decision it was observed that even though the stranger transferee on such undivided interest moves an execution application for separating his share by metes and bounds, it would be treated to be an application for suing for partition and it is not necessary that a separate suit should be filed by such stranger transferee. On this decision the learned Counsel for respondent has laid emphasis and submitted that in view of the prayer sought for by the appellant-bank, it is as good as a prayer sought in the usual course in a suit for partition, as such, it would tantamount to initiating or moving the court seeking for granting his prayer, as a party in a partition suit can be transposed either as a plaintiff or defendant. In that view of the matter, the prayer sought for by the bank should be treated as if it has moved for an execution petition seeking for a separate share and Section 4 has to be invoked allowing the other co-sharers to exercise their right of preemption.
Gyan Chand And Anr. vs Sumat Rani And Ors. on 6 September, 2001
8. Learned counsel for the parties have relied upon the decisions in Gyan Chand and Anr. v. Sumat Rani and Ors. ; Gautam Paul v. Debt Ram Paul and Ors. AIR 2001 SC 61; Srilekha Ghosh (Roy) and Anr. v. Partha Sarathi Ghosh - and Punjab National Bank v. R.L. Void and Ors. .
Babulal vs Habibnoor Khan (Dead) By Lrs. And Ors on 26 April, 2000
In the decision in Srilekha Ghosh's case cited supra relied upon by the respondent, the Apex Court has, referring to the decision in Babulal v. Habibnoar Khan , held that one of the basic conditions for applicability of Section 4 as laid down by the aforesaid decision and also as expressly mentioned in the section is that, stranger transferee must seek for partition and separate possession of the undivided share transferred to him by the co-owner concerned. It is stated further that it is true in the said decision it was observed that even though the stranger transferee on such undivided interest moves an execution application for separating his share by metes and bounds, it would be treated to be an application for suing for partition and it is not necessary that a separate suit should be filed by such stranger transferee. On this decision the learned Counsel for respondent has laid emphasis and submitted that in view of the prayer sought for by the appellant-bank, it is as good as a prayer sought in the usual course in a suit for partition, as such, it would tantamount to initiating or moving the court seeking for granting his prayer, as a party in a partition suit can be transposed either as a plaintiff or defendant. In that view of the matter, the prayer sought for by the bank should be treated as if it has moved for an execution petition seeking for a separate share and Section 4 has to be invoked allowing the other co-sharers to exercise their right of preemption.
Section 44 in The Transfer Of Property Act, 1882 [Entire Act]
Punjab National Bank vs R.L. Vaid And Ors on 20 August, 2004
We find that the Court has merely referred to the decision in R.K. Jain's case without even indicating as to applicability of the said decision and as to how it has any relevance to the facts of the case. It would have been proper for the High Court to indicate the reasons and also to spell out clearly as to the applicability of the decision to the facts of the case. There is always peril in treating the words of a judgment as though they are words in a legislative enactment and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a difference between conclusions in two cases. Disposal of cases by merely placing reliance on a decision is not proper. Precedent should be followed only so far as it marks the path of justice, but you must cut out the dead wood and trim off the side branches else you will find yourself lost in thickets and branches, said Lord Denning, while speaking in the matter of applying precedents. The impugned order is certainly vague.
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