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1 - 6 of 6 (0.27 seconds)Section 4 in The Partition Act, 1893 [Entire Act]
The Code of Civil Procedure, 1908
Dorab Cawasji Warden vs Coomi Sorab Warden & Ors on 13 February, 1990
23. Learned counsel for the plaintiff in C.S.No.185 of 2012 relied on a decision of the Supreme Court reported in AIR 1990 SC 867 (Dorab Cawasji Warden Vs. Coomi Sorab Warden and others) to contend that since the plaintiff and the other legal heirs of the deceased T.D.Aiyaswamy are in possession of the undivided share in the suit property and since the property is not divided by metes and bounds and since the defendants are not the members of the family of the plaintiff, the plaintiff is entitled for injunction as prayed for and the defendants are not entitled to joint possession or other common or part enjoyment of the suit property, as stated in Section 44 of the Transfer of Property Act and Section 4 of the Partition Act. The Supreme Court in the said decision, while dealing with Section 44 of the Transfer of Property Act and Section 4 of the Partition Act, observed that while Section 44 of the Transfer of Property Act does not give a transferee of a dwelling house belonging to an undivided family a right to joint possession and confer a corresponding right on the other members of the family to deny the right to joint possession to a stranger transferee, Section 4 of the Partition Act gives a right to a member of the family who has not transferred his share to purchase the transferee's share on a value to be fixed in accordance with law when the transferee filed a suit for partition; both these are valuable rights to the members of the undivided family whatever may be the object or purpose for which they were conferred on such members; in some cases, it is stated that the right to joint possession is denied to a transferee in order to prevent a transferee who is an outsider from forcing his way into a dwelling house in which the other members of his transferee's family have a right to live; in some other cases, giving joint possession was considered to be illegal and the only right of the stranger purchaser is to sue for partition; all these considerations show that denying an injunction against a transferee in such cases, prima-facie, would cause irreparable injury to the other members of the family.
The Partition Act, 1893
S.S. Subramanya Sastry vs Sheik Ghannu And Ors. on 7 November, 1934
25. The ratio laid down in the above two decisions is squarely applicable to the facts of the present case. Learned counsel for the plaintiff in C.S.No.185 of 2012 contended that since the suit property is in possession of the plaintiff, he filed C.S.No.185 of 2012 for permanent injunction, as the defendants are attempting to trespass into the property and demolish the existing building and hence, permanent injunction may be granted in favour of the plaintiff. The plaintiff has every right to encumber or alienate the suit property according to his wish, as he has proved his possession in the suit property. But, the plaintiff cannot be prevented by an order of injunction from doing so, but the defendants in C.S.No.185 of 2012 have to be restrained only from demolishing the existing building or superstructure in the suit property, as they have no right to demolish the existing building in the suit property.
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