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Report No. 86

III Suit against Stranger Purchaser

7.12. Section 4(1) and the expression "sues for partition".-

The most important question to be considered with reference to section 4(1) is whether the section is attracted when the suit for partition is brought not by the stranger purchaser, but by a member of the family against the stranger purchaser. The section uses the expression "and such transferee sues for partition", which, if taken literally, would be confined to cases where the stranger purchaser is a plaintiff in the partition action. Controversy has arisen as to the proper construction of the section.

While many High Courts have construed the section widely, so as to extend it even to cases where the stranger purchaser figures as a defendant in a suit for partition,1 other decisions take a contrary view. The controversy was already acute enough in 1955, when the Calcutta High Court had occasion to review the cases on the subject.2 Subsequent decisions have even intensified the controversy. The conflict of decisions on the question now requires serious consideration.

1. See para. 7.16, infra.

2. Haradhone Haldar v. Usha Charan Karmakar, AIR 1955 Cal 292 (294), paras. 11 and 12 (reviews case law).

The Partition Act, 1893 Back

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