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Report No. 86

7.16. Second view-every party a plaintiff.-

The second view1 is based on the principle that in a partition suit every party is a plaintiff as well as a defendant, and this dual capacity arises from the very nature of the partition proceedings, wherein each party is entitled to partition or a separate allotment. It is also urged in support of this interpretation that it promotes the object of the statute, namely, to prevent the intrusion of strangers into the dwelling house.2-5

In an Allahabad case,6 it was held that if a defendant transferee in a suit for partition claimed a share in the dwelling house, he can be treated as a "plaintiff" under section 4. In a later Full Bench case7 also, it appears to have been prepared to go to this extent. However, in that case there was no such prayer by the stranger purchaser. The Madras High Court, in an earlier case,8 took the view that section 4 does not apply where the transferee as a defendant, at least where he has not made any prayer for specific allotment. Later, however, that High Court has taken a different view, applying the section where the transferee (though a defendant) claims partition.9 This is the second and intermediate view.

1. Para. 7.14(ii), supra.

2. Sheodhar v. Kishun Prasad, AIR 1941 Pat 4.

3. Abu Isa Thakur v. Dina Bandhu, 1948 ILR Cal 248: AIR '1947 Cal 426 (Das, J.).

4. Satyabhama De v. jatindra, AIR 1929 Cal 269.

5. Laxman v. Lahana Bai (Mt.), 1937 ILR Nag 73: AIR 1937 Nag 4.

6. Ramzan Baksh v. Nizamuddin, AIR 1956 All 687.

7. Sakhawat Ali v. All Hussain, AIR 1957 All 356 (358), para. 12 (FB); see para. 7.11, supra.

8. Butchi Ramayya v. Venkatasubba Rao, AIR 1950 Mad 214.

9. Ramaswami v. Subramania, AIR 1967 Mad 156 (158, 160), paras. 6, 16.

The Partition Act, 1893 Back

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