November 21, 2018, 10:17 am

Partition suit

Title involved in the suit which cannot be settled in a simple suit for partition

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14  BLC  (2008)  376 Joyanta Kumar Vs. Dilip Ranjan-Partition suit- A complicated question of title involved in the suit which cannot be settled in a simple suit for partition without claiming declaration of title. Further, right or wrong ,a deed of adoption is on record which took place on the basis of a registered will and unless this of adoption could be set aside, the plaintiffs could not lay  any  claim on the properties of Joy Chandra Datta Vs.Riversionary heirs, inasmuch  as the  properties of Joy Chandra Datta develop on his adopted son, the defendant no.1, to the extent the full share as a natural son. In such facts unless these stumbling blocks are removed,the plaintiffs are not permitted to lay any claim on the properties left by Joy Chandra Datta. Admittedly, the plaintiffs claimed a share in a portion of the suit land as heirs of their father Sudhir but also claimed that they are reversionary heirs of Joy Chandra Datta. Thus,without getting rid of will and the deed of adoption, no relation of the plaintiffs with Joy Chandra could be established to claim his properties as reversionary heirs.In such facts also, the suit for simple partition is not maintainable.suit for partition

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59  DLR  (2007)  (AD)  69  Maleka khatun Vs. Amena Khatun –Defendant in a suit for partition to avail the provision of section  5 of partion Act is required to establish that the person seeking partition is stronger purcsaser co-sharers of dwelling house of an undivided family.

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MLR  (HC)  199-200  Mohammad Alam (Hazi) Vs. Dr.Ashin Sarkar and others –Co-share of undivided family is entiled to buy up the portion of the home stead sold to stranger Building,huts, courtyeard, or chard, the tanks and their banks adjacent there  to are integral parts of the home stead and are required  for convenient use of members of undivided family has irresistible right to buy up the portion of home stead sold  to stranger.

12  CLJ  525 ;  109 I.C  69 Pran Krishna Vs. Surat Chandra; 45Cal.873; 45  I.C. 605- The transferce Cannot get joint possession of share of dwelling house of an undivided family cannot be put into joint possession.The expression follows the opinion of we strop C.J. (5 Bom. 499) to the effect that such aprocedure would be in convenient and lead to branches of the peace.The proper course is to direct delivery of possession by partion in execution proceedinfs or to leave the purchase to his remdy separate suit for partition (20 CWN 675).Dweling house includes not only the structure of thr building but also adjacent building,cartilage, courtyeard, garden or chard all that is necessary to the convenient occupation to the house.

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26  BCR  (2006)  (AD)  292  Asak Kumarkar Vs. Amullaya Kumar kar-  The shaham allotted to the plaintiffs after marking the preliminary Dicree final the giving delivery of possession to the plaintiffs should not be disturbed after lapse of such a long preod in the name accommodating residuary shahams to defendant  No 2 Specially, in view of the fact that total area of particle land is 62.80 acres.

25  BCR  (2005)  (AD)  82  Hazi Mohammad Hossain and Ors Vs. Obaidul Haque and others- The suit being partion suit  and it being already in  the premptory hearing stage, order permitting the defendant No 52 to construct a building on the suit land on demolishing the dilapidated building in excess of his share and possession would prejudice the plaintiffs seriously.

25  BCR  (2005)  (AD)  93 Halima Vs. Hamid-Suit for partition is not maintainable if the land is amicably pertitioned and acted upon –since from materials on record it is seen that the land is suit has  already been amicably portioned amongst the co-shares specific share of the respective co-share has been recorded in diference S.A. plots and in respect of the land so got by the co-shares upon amicable partition separate municipal holdings have been opened as such the suit for partition is  not maintainable. …… from the materials on record as it appears that upon accepting the amicable partion the by walling their respective share are enjoing the Saham so allotted through the amicable partition,the same verily reflexs that the land  having been partitioned by metes and bounds .

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