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Report No. 86

7.19. Wider scope of section 4 favoured.-

So much as regards the case law on section 4. Having regard to the object underlying the section, we see no reason why it should not extend to every proceeding wherein partition of a family dwelling-house is in issue, irrespective of the manner in which the parties are arrayed and irrespective of the question whether there is a prayer for specific allotment. To adopt the first view (which is the narrowest one) on the subject would mean that the members of the family will have to wait until the transferee sues for partition. Similarly, to confine the section to cases where the transferee (though a defendant) asks for specific allotment of a share (the second view), would also cause some hardship, because it would deprive the plaintiff of a beneficial provision of the law if the transferee keeps quiet and asks for no relief. In fact, some of the judicial decisions which have taken this view have themselves recognised the hardship that would sometimes be caused by such an interpretation.1-3

The third and widest view has, therefore, much to commend itself.

1. Butchi Ratnayya v. Venkatasubba Rao, AIR Mad 214.

2. See also para. 5.17, supra.

3. Sakhawat Ali v. All Hussain, AIR 1957 All 356 (359), para. 13 (FB).



The Partition Act, 1893 Back




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