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Report No. 86

Chapter 7-Share of Dwelling House: Section 4

(6) Section 4 (partition suit by transferee of share in dwelling house) should be widened so as to ensure that the right to seek purchase of the share of the transferee should be available to a co-sharer who is a member of the family-

(a) whether the transferee is a plaintiff or defendant, and

(b) whether the transferee has made a prayer for specified allotment or not, provided that the suit is one for partition (the usual situation) or a suit for possession against the transferee (a situation which may arise, for example, when the plaintiff member is not in possession).1

(7) While the enactment of a provision as to the form of a decree to be passed under section 4 is not necessary, the suggestion made in the Report as to the lines on which a proper decree could be drawn is commended to the High Courts,2 for being incorporated in the rules to be made under the Code of Civil Procedure.

(8) An Explanation should be added to section 4 to provide that for the purposes of this section, a person does not, on marriage, cease to be member of the family.3

(9) in section 4, there should be inserted a new sub-section to the effect that the valuation under section 4(1) shall be with reference to the market value on the date on which the co-sharer undertakes to purchase the share.4

(10) As regards the procedure to be followed in case of sales under the Act, all High Courts having original jurisdiction should be governed by section 7(a). The specific mention of High Courts of the three Presidency towns should accordingly be deleted from that clause.5

(11) In section 7, a new sub-section should be inserted to provide that the Court can (in an appropriate case) direct that the property should be sold, only among the co-sharers.6

(12) Section 8 should be amended to provide that an order rejecting an application for sale should also be deemed to be a decree.7

(13) Section 10 (Application of the Act to pending suits) should be repealed.8

1. Para. 7.23.

2. Paras. 7.35 to 7.37.

3. Para. 7.26.

4. Para. 7.42.

5. Paras. 8.7 and 8.12.

6. Paras. 8.8 and 8.12.

7. Para. 8.13.

8. Para. 8.16. 8. 9.

P.V. Dixit,

S.N. Shankar,

Gangeshwar Prasad,

P.M. Bakshi,

New Delhi,
Dated: 19th August, 1980.

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