HARI NARAIN CHOUDHARY Vs. RAMNEHI KUER

JUDGEMENT

(1.) This application has been filed by some purchasers of some properties from some of the defendants of a partition suit. The parties to the partition suit have been mentioned in paragraphs 2 and 3 of this petition. It appears that, apart from the members of the joint family of Dharkhan Choudhary and others, certain transferees were added as parties on the ground that they had purchased some of the joint family properties involved in the litigation. The preliminary decree of partition was passed on the 30th August, 1952. During the course of the preparation of the final decree, the present petitioners filed their applications in 1965, alleging that they had also purchased some of the joint family properties from some of the defendants, subsequent to the passing of the preliminary decree. The contention of these petitioners was that, as some of the defendants had sold some particular properties to these petitioners, the question of allotment of those properties in the patties of the vendors may be considered in the final decree proceeding. These applications have been rejected by the learned Additional Subordinate Judge, substantially on the ground that, on the 8th April, 1964, by order No. 80, he had come to the conclusion that only purchases made before the preliminary decree was passed will be taken into consideration in the preparation of the final decree, but no purchases made after the preliminary decree had been passed will be, taken into consideration. Apparently, in view of this order, the Pleader Commissioner had ignored the transfers made after the 30th August, 1952, in favour of the present petitioners.

(2.) It is urged by the learned Counsel for the petitioners that there is no reason at all to ignore the transfers made after the preliminary decree had been passed, if transfers made before that stage have been taken into consideration. It is argued that the Pleader Commissioner and the Court below should have considered the case of the petitioner on merit, before rejecting it because of the previous order dated the 8th April, 1964. I am of the opinion that the contentions raised by the learned Counsel are valid. If transfers made before the preliminary decree was passed can be taken into consideration, I do not see why transfers made after that stage should be ignored altogether. All that had happened by the preliminary decree was that the shares of the parties were determined. But now the question as to equitable distribution of the properties between the several parties has arisen and the Court should also consider the question of allotment of any particular property which may have been transferred by a particular defendant, after the preliminary decree was passed, to a bona fide purchaser. Therefore, I would set aside the order dated the 10th August, 1966, only with respect to the contention raised by the present petitioners regarding the question of allotment of the properties purchased by them in the years subsequent to 1952. The learned Judge should now consider the questions raised by the present petitioners on merit, that is to say, the question whether the properties purchased by the present petitioners can be conveniently and equitably given in the allotment of their vendors.

(3.) The application, is, therefore, allow ed and the ease remitted to the Court below for reconsideration in view of the observations made above. In the circum stances of the case, the parties should bear their own costs of this Court.