MOHAMED HANIFA Vs. ABDUL LATHEEF SAHIB

JUDGEMENT

(1.) ON a reference by Swamikkannu, J. , this second appeal is posted before us for an authoritative pronouncement regarding the interpretation of Sec. 4 of the Partition Act, hereinafter referred to as the Act. As formulated by the learned Judge, the questions for determination in this second appeal are: 1. Whether an application under Sec. 4 of the Partition act (Act 4 of 1893) can be filed at the time of pendency of a second appeal which itself is against a final decree, 2. When the respondents in the second appeal raise an objection under C1. 5 of Sec. 100, C. P. C. , can the application under Sec. 4 of the partition Act be entertained without deciding the objections of the respondents" 3. If the said application is maintainable during the pendency of the second appeal against the final decree, whether the said application has to be disposed of first, before actually determining the second appeal itself"

(2.) THE facts of the case are briefly as follows: THE entire suit property originally belonged to one Ahamed Chouse. He thed leaving behind him two sons and two daughters. Two sons are defendants 1 and 2, respondents 1 and 2 and one of the daughters is the third defendant-third respondent and another daughter is one Sultan Bi. THE appellant herein purchased the l/6th share of Sultan Bi in the house and on the strength of such sale, filed O. S. No. 794 of 1973 for partition, and separate possession of his 1/6th share. On behalf of the respondents, several contentions were raised relating to the divisibility as well as application of the provisions of the Act.

(3.) ON behalf of the appellant, reliance is placed on the decision reported in Bireadranath v. Snehalata, A. I. R. 1968 Cal. 380. A Division bench of the Calcutta High Court observed as follows: 'it is well-settled now that an application for pre-emption under Sec. 4 of the Partition Act can be made at any stage, while the suit is pending. There has, no doubt, been a final decree passed in the instant case by the learned trial Judge, but that decree is under appeal to this Court and the matter is sub judice. The suit, therefore must be held to be pending'and during its pendency, the above application has been filed. The objection to the said application, therefore, on the first of the above two grounds, cannot be accepted.