RUKMINIBAI Vs. BABU

JUDGEMENT

(1.) SECOND appeal by defendants 4 and 5 in a suit for partition which had came to be decreed by a preliminary decree apportioning the shares and during the course of the final decree proceedings for identification and distribution of the properties as per the shares, the 4th and 5th defendants having woken up a little late in the day, by challenging a report of the Commissioner who had been appointed by the Executing Court for dividing the properties in accordance with the respective shares of the members of the family by pointing out that one of the suit items namely residential property which had been sold by the plaintiff and the defendants other than the present appellants had joined issue, contending that the property should not have been allotted to the share of the plaintiff and other defendants and particularly by claiming that while apportioning the house property for the sale of which the plaintiff and other defendants had joined to transfer it in favour of the 5th defendant/ purchaser and having raised certain other objections also but the Trial Court not finding much merit in such objections to the report of the Commissioner having nevertheless proceeded to conclude the final decree � proceedings as per the report of the Commissioner and thereafter having preferred a first appeal to get over this final decree but having failed in the same the learned Judge of the lower Appellate Court dismissed the appeal, are in Section 100 appeal before this Court.

(2.) SUBMISSION of Sri Veeresh Budhihal, learned Counsel for the appellants is that a sharer/co-parcener of a joint family property has a peremptive right to seek for allotment of a house property by offering to buy the share of other co-parcener or co-owners and when such an option was available to members of the family, the Courts below have committed a grave error in law in nevertheless allotting it to the share of such coparcener who had effected a sale of the very property in favour of the 6th defendant, that such course of action on the part of the Courts below is clearly in violation of the provisions of Section 4 of the Partition Act, 1893 and therefore the present second appeal needs examination.

(3.) PROVISIONS of Section 4 of the Act is a statutory recognition of the principle of owelty and incorporated if at all in Section 4 of the Act.