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Report No. 86

7.35. Stages to be reflected in the decree.-

We think that the form of the decree has been laid down in substantially correct manner in the later Allahabad case,1 to which we have already referred. The essential stages to be followed should be reflected in the decree. These stages would appear to be as follows:-

(i) The claimant under section 4 should be directed to deposit in Court the sum fixed within a specified time,-which may, however, be extended at the discretion of the court.2

[A Court has, in an application under section 4(1), first to ascertain whether the property is a dwelling house. If yes, then it is to proceed to value the share of the stranger. Then it is to require the co-sharer who was a member to deposit the amount within a date to be fixed by the Court.]

(ii) If the deposit is not made in time, then the transfer fails, and the Court takes necessary steps for partitioning the entire property, including the dwelling house. The application under section 4 should be dismissed, and an order for partition by metes and bounds should be passed (or, if a preliminary decree is already passed, it will be proceeded with).

(iii) If the money is deposited in time, the transferee should be required to transfer his share to the applicant by executing a conveyance.

(iv) If the transferee fails or neglects to execute the conveyance, a decree should be passed ordering him to execute the deed, and, in execution of such a decree, the Court itself may execute the document.3

1. Mohammad Sulaiman v. Amir Jan (Mt.), AIR 1941 All 281 (283), para. 7.31, supra.

2. Cf. Subal Chandra v. Gostha, (1956) 60 CWN 829 (833).

3. Order 21, rule 34, Code of Civil Procedure, 1968.

The Partition Act, 1893 Back

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