HALADHAR MAJHI Vs. BALARAM MAJHI

JUDGEMENT

(1.) Plaintiff is the appellant against a reversing judgment. Plaintiff filed the suit for partition and allotment of his one -fourth share and sought for relief Under Section 4 of the Partition Act to re -purchase the undivided ancestral property from defendant No. 8 with respect to Schedule -Kha property. Plaintiff's case, in brief, is that plaintiff and defendants 1 to 7 are descendants of the common ancestor Banamaii and defendant No. 8 is a stranger to the family. Defendant No. 8 got a registered sale deed in respect of the undivided ancestral homestead property from defendant No. 1 on 14 -2 -1978 in respect of Schedule -Khar property of the plaint which comprises of a part of the residential house and the tank appurtenant thereto and the plaintiff is entitled to protection of Section 4 of the Partition Act.

(2.) THE defendants contested the suit challenging the share - claimed by the plaintiff and it was further contended that though defendant No. 1 had sold his share of homestead to defendant No. 8 on 14 -2 -1978, but defendant No. 8 had re -conveyed the same in favour of defendant No. 1 on 21 -4 -1978 on receiving the consideration money of Rs. 2,000/ - and, therefore, the plaintiff is not entitled to the protection of Section 4 of the Partition Act.

(3.) THE lower appellate Court on considering the question as to whether the principle of lis pendens would apply to a suit claiming relief Under Section 4 of the Partition Act, came to hold that the said principle will be of no application, since the transfer in question does not relate to any immovable property directly or specifically in question. In other words, according to the lower appellate Court since specific property is not in issue, but an undivided share in the joint family, the principle of Iis pendens will not be applicable. The lower appellate Court further held that by virtue of reconveyance, the stranger purchaser walks out having no interest in the suit property and, therefore, the trial Court's decree directing defendant No. 1, a member of the family, to execute a sale deed in favour of the plaintiff, is on the face of it absurd and hence the present second appeal.