RAMASWAMI PILLAI Vs. SUBRAMANIA PILLAI

JUDGEMENT

(1.) THIS revision raise the question as to the scope of the jurisdiction of the court under Section 4 of the Partition Act (IV of 1893):

(2.) THE facts of the case and the proceedings that have led to the controversy may be briefly set out. The revision petitioner is the third defendant in a suit for partition of three items of house properties. One Pancha Pillai and the third defendant in the suit were brothers. The first defendant is the widow of Pancha pillai and the second defendant, their son. The 4th defendant is a purchaser from the 2nd defendant of the western half share in item (3) of the suit properties, a family, dwelling house, under a registered sale deed, Ex B 3 dated 12-11-1958. There is some evidence that the two brothers attempted a division of the properties without reference to their mother Deivanaiammal and she thereupon filed the suit O. S. 125 of 1959 on the filed of the District Muncie. Turaivur and it is out of that the present revision petition arises. Deivanai Ammal, mother claimed one-third share in the suit properties. A preliminary decree was passed on 1st march 1960 for partition of plaintiff's one-third share and there was a direction in the decree that as far as possible, the western half in item 3 purchased by the fourth defendant may be allotted to the vendor's share. Subsequent to the preliminary decree, the plaintiff executed a settlement deed in respect of her one-third share in the suit properties in favor of the third defendant's wife. Before any further proceedings were taken in the suit, she died. It is in these circumstances, that the fourth defendant filed 1, A. 703 of 1962 in the suit for a final decree for partition in terms of the preliminary decree claiming equitable allotment of the western half of item 3 to him. He brought on record the settle from the original plaintiff as a supplemental second plaintiff in the suit and a party respondent in his application for final decree. In his counter to this application, the third defendant inter alia maintained that under the provisions of the Partition Act, the applications was not maintainable and that himself and his wife were residing in the dwelling house in the western portion. Similar objections were filed by the supplemental second plaintiff as respondent. She had no objection to be impleaded as a party to the proceedings, but she contended that the claim was opposed to the principles of the Partition Act, the house being a residential one and the applicant a stranger to the family. Opposing the claim of the fourth defendant to a share in the property, the third defendant, the revision petitioner, took out an independent application I. A. 66 of 1963 under Section 4 of the Partition Act, claiming for the valuation of the one-third share of the 4th defendant in the western moiety of the third item and sale of the share to him and for necessary directions in that behalf. His wife as the second plaintiff joined in that application. On this application, the learned District Munsif held that, as it was clear from the evidence that there was division in status in the family, there was no individual family and the first condition for the application of Section 4 of the Partition Act was not satisfied Proceeding he held that as the suit for partition was not filed by the transferee-fourth defendant, a sharer in the family has no locus stand to apply under Section 4 of the Partition Act for buying out the transferee. In deciding this way, the learned District Munsif purports to follow a decision of this court in B. Ramayya v. Venkatasubbarao, as one on all fours to the facts of this case. In view of the findings in I. A. 66 of 1963 the learned District Munsif held that the transferee would be entitled to equitable allotment claimed by him in his application I. A. 703 of 1962 for final decree and directed partition accordingly. Hence this revision by the third defendant.

(3.) SECTION 4 sub-sec (1) of the Partition Act with which we are concerned reads this.