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Report No. 86

7.13. Views of three High Courts referred to by way of illustration.-

We shall, in due course, give an analysis1 of all the important rulings. However, by way of illustrating the nature of the controversy, we would, at this stage, refer to the views of three High Courts

(i) Two decisions of the Bombay High Court2-3 take a narrow view, holding that section 4 applies only where the transferee is a plaintiff claiming partition or separate possession.

(ii) A Full Bench decision of the Allahabad High Court,4 while following the Bombay view, indicates that the Court would be prepared to extend the benefit of section 4 to a case where the transferee, though not the plaintiff, makes a claim for partition.

(iii) The Calcutta High Court5 takes a wide view, holding that the transferee defendant need not even have made a claim for partition.

1. Para. 7.18, infra.

2. Balshet v. Miran Saheb, 1899 ILR 23 Born 77.

3. Khanderao v. Balkrishna, AIR 1922 Born 121.

4. Sakhawat Ali v. Ali Hussain, AIR 1957 All 356 (358), para. 12 (FB).

5. Haradhone v. Usha Charan, AIR 1955 Cal 292 (review cases).

The Partition Act, 1893 Back

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